1 Tuesday, 12 January 2010
2 [Open session]
3 [The accused entered court]
4 [The witness takes the stand]
5 --- Upon commencing at 9.06 a.m.
6 JUDGE ORIE: Good morning to everyone.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in and around the courtroom. This is case number IT-06-90-T,
10 the Prosecutor versus Gotovina et al. Thank you.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 Ms. Bagic, you would like to remind you that you're still bound
13 by the solemn declaration you have given yesterday morning at the
14 beginning of your testimony.
15 Ms. Gustafson, are you ready to proceed?
16 MS. GUSTAFSON: Yes, thank you, Your Honour.
17 WITNESS: SNJEZANA BAGIC [Resumed]
18 [Witness answered through interpreter]
19 Cross-examination by Ms. Gustafson: [Continued]
20 Q. Good morning, Ms. Bagic.
21 A. Good morning.
22 Q. Yesterday, at the conclusion of the session I was --
23 A. Good morning.
24 Q. I was asking you about your contacts with government ministers
25 other than Mr. Separovic in 1995 and you said you couldn't recall any
1 specific contacts. And I'd like to ask you a similar question about any
2 contacts you may have had with President Tudjman in 1995. Do you recall
3 having any communication or contact with him at the time?
4 A. I do not recall that I had any sort of contact with
5 President Tudjman in 1995.
6 Q. Did you -- did you know him then or not?
7 A. No, I did not know him. Except, of course, through the media.
8 Q. Did you ever meet him; and, if so, when was that?
9 A. I met President Tudjman several times. Two times I met him
10 personally. I do not remember the exact years. I believe that the first
11 time it was before I was appointed deputy minister, and that was in 1997.
12 The second meeting took place, I think, around 1999. And I think
13 I was present at two meetings of the National Security Council, who were
14 presided by President Tudjman. If I remember correctly, he was the
15 president of this council. And I believe that these were meetings that
16 were held in the period of the year 1998. It must have been in late
17 spring when there was no minister at the Ministry of Justice. He wasn't
18 performing his duty, in fact. The reason was that the previous minister
19 had been relieved of his duty, and the newly appointed minister, at the
20 time, Dr. Milan Ramljak was the Ambassador of the Republic of Croatia to
21 Austria, so some time was needed for him to take care of his obligations
22 as the Ambassador and assume his duty as the minister in the Ministry of
24 So this is what I can say, to the best of my recollection.
25 Q. Thank you. Now, I'd like to move on to the decree on the
1 temporary takeover of property that you were asked questions about
3 And, in particular, you were asked whether you worked on this
4 decree, on the drafting of the decree, and you said at page 26495:
6 And you explained:
7 "Because I had previously taken part in the preparations and
8 drafting of a law that had the exact same name."
9 And you had explained that you started working on the law in
10 June of 1995.
11 My question is: When were you informed that a decree was to be
12 enacted, and how were you informed of that?
13 A. I don't know the exact date on which I was informed about that.
14 As for the manner in which I was informed about it, it was
15 certainly the way in which usually the minister of justice would inform
16 me about this, when, at a meeting of the government or a government
17 session, a decision of this kind would be made. He would then call the
18 persons from the ministry who were competent or to whom he had assigned a
19 certain task and tell them to do that.
20 As the decree was adopted around the 31st of August, that was
21 when the government session took place, and the decree was published in
22 the Official Gazette, and it came into force on the 4th of September. If
23 I'm not mistaken, then it must have been in the second half of August.
24 But I really do not remember the specific details, and I cannot elaborate
25 on the details from this point in time, as there are no written traces
1 about this. There is not written information on the basis on which one
2 could say that with certainty.
3 Q. And do you recall now whether Mr. Separovic gave you any specific
4 instructions or guide-lines regarding the decree, such as, for example,
5 that it should have a 30-day time-limit?
6 A. I cannot remember that specifically. It seems to me that the
7 instructions that were issued, in terms of drafting the decree, were not
8 much different from the text of the bill, which we had already drafted.
9 The text of this bill on temporary takeover and management of property,
10 it had gone through the first reading in the parliament, and at the
11 moment of the preparation and adoption of the decree, the emphasise was
12 on the necessity to find a legal solution and adopt the regulation or a
13 law that would regulate this issue of the temporary takeover and
14 management of property as soon as possible, because at the time the
15 Croatian parliament was not sitting and therefore the final bill could
16 not be submitted to the Croatian parliament for the second reading. So
17 this constitutional and legal possibility was to adopt a decree law and
18 there was more discussion about this possibility, what the possibility
19 was, and could anything specific be done about that.
20 I'm sorry.
21 Q. Thank you. I -- I appreciate that you're trying to give detailed
22 answers, but if could you try to focus specifically on the questions that
23 I ask, because my time is limited. Thank you.
24 Now, in we could go to Exhibit D422, which is the Law on the
25 Temporary Takeover of Property.
1 Now, in your statement and in your testimony you described this
2 law as having a twofold objective. First, to protect the property of
3 Serbs who had left the area that had been occupied prior to
4 Operation Storm; and, secondly, to house internally displaced persons and
5 refugees, primarily from Bosnia. And you stated several times that the
6 goal was to provide temporary housing for these displaced persons and
8 And just to clarify those, those refugees and displaced persons,
9 those were primarily Croats, right?
10 A. I have said this a number of times. The law was not written so
11 that it would distinguish between citizens on the basis of their
12 ethnicity. However, the factual situation was such that particularly
13 after the Operation Storm, quite a number of the citizens of Serbian
14 ethnicity had left the Republic of Croatia and found residence in
15 Bosnia-Herzegovina and the Federal Republic of Yugoslavia. On the other
16 hand, the opposite process was also ongoing. Quite a large number of the
17 citizens of Croatian ethnicity had come from the occupied territories,
18 the territories of Republic of Croatia that were still occupied, to the
19 liberated areas of the Republic of Croatia. And, likewise, a large
20 number of citizens of Croatian ethnicity from Bosnia-Herzegovina had come
21 to Croatia.
22 At the moment when the implementation began, most probably, there
23 are various data about this that were not under my jurisdiction, mainly
24 the citizens of Croatian ethnicity were accommodated in this property.
25 MS. GUSTAFSON: And if we could look at Article 2 of this law
1 which is on this page in English and the next page in B/C/S.
2 Q. This law didn't only cover the property of Serbs who had left in
3 connection with Operation Storm. It also covered property located
4 anywhere in Croatia, belonging either to people who had left Croatia
5 after the 17th of August, 1990, or people who were citizens of the FRY
6 who were currently not using their property.
7 And all of these three categories of property owners set out in
8 Article 2, they were largely ethnic Serbs, right?
9 A. They probably were citizens of Serb ethnicity, but the first
10 category that we talked more about yesterday were the citizens of
11 Croatia, probably of Serbian ethnicity, as after these operations, they
12 left the country. They were leaving it any way after the
13 17th of August, 1990, but, in particular, after Operations Flash and
14 Storm. So these were Croatian citizens, most probably of Serb ethnicity,
15 but certainly not only them who were leaving to the areas mentioned
16 herein. And the third category which is maybe not particularly noted
17 here because there was not a problem with their return to the Republic
18 of Croatia, as Croatian citizens, were the citizens of the
19 Federal Republic of Yugoslavia who owned real estate in the
20 Republic of Croatia - that is mentioned in paragraph 3 of Article 2 - and
21 this was most often holiday homes which the citizens of the Federal
22 Republic of Croatia owned or possessed in Croatia.
23 Q. Just in relation to the last part of your answer, you said they
24 were probably most often holiday homes owned by, and it came out in
25 translation as the citizens of the Federal Republic of Croatia, and I
1 think that was supposed to the Federal Republic of Yugoslavia; is that
2 right? Thank you.
3 A. Yes.
4 Q. And --
5 A. Yes, I'm sorry, maybe it was a slip of the tongue.
6 Q. That's fine. And yesterday you were shown an UN document
7 containing an analysis of the decree on temporary takeover. That was
8 Exhibit D689. And that analysis concluded that the decree represents an
9 act of discrimination. And you were asked whether you could find any
10 provisions testifying to the existence of discrimination against citizens
11 of Croatia with regard to their return to the country, and you replied at
12 page 26526:
13 "No, I cannot. This decree and the later law did not have that
14 effect. It referred to the property of all citizens whose property was
15 abandoned and not used personally by them."
16 And I would just like to clarify that, because the decree and the
17 law don't refer explicitly to ethnicity but the -- those who concluded
18 that this law and decree were discriminatory were basing that conclusion
19 on the fact that the groups of citizens whose property rights were
20 affected by this law were largely ethnic Serbs.
21 Is that right?
22 JUDGE ORIE: Mr. Misetic.
23 MR. MISETIC: Sorry, the witness can complete her answer and then
24 I will make a comment.
25 JUDGE ORIE: Yes. Usually no comments are made but objections
1 against questions. But if you prefer the witness to answer first, she
2 has an opportunity to do so.
3 Could you please answer the question?
4 THE WITNESS: [Interpretation] Thank you. I will, Your Honour.
5 The law, as such, had the purpose and goal about which I talked
6 on several occasions yesterday. That was primarily to protect the
7 property, to which the law referred, and also to enable the accommodation
8 of expelled persons, displaced persons, refugees, all those who were
9 affected by the consequences of the war. These were also family members
10 of Croatian defenders who were dead or had gone missing. These were
11 persons who were now moving into these areas and who were supposed to
12 enable with their revitalization.
13 As for the implementation of the law, it was implemented
14 depending on the situation in Croatia at the time, specifically in local
15 areas, which had been occupied, and had now recently been liberated. So
16 in the whole area of the Republic of Croatia, with the emphasise on the
17 areas that had been occupied and which were now liberated. At the time
18 in the Republic of Croatia, and not only in the Republic of Croatia, if
19 you allow me to emphasise, but also in the neighbouring countries such as
20 the Federal Republic of Yugoslavia and Bosnia and Herzegovina, because of
21 the consequences of war, there were great movements and migrations of the
22 population. And in this situation people who were Croatian citizens,
23 mostly of Serb ethnicity, were leaving Croatia and most often going to
24 the Federal Republic of Yugoslavia and Bosnia and Herzegovina. Prior to
25 Operation Storm they were also moving into the areas of the Republic of
1 Croatia that were occupied at the time. And, on the other hand, within
2 the Republic of Croatia, we had huge migrations of Croatian citizens of
3 Croatian ethnicity who were moving -- I'm sorry.
4 MS. GUSTAFSON:
5 Q. I'm sorry. We've now gone on for a page and you haven't answered
6 my question. You might be getting to that, but in the interests of time
7 I'm going move on to the next question because I don't have much time.
8 But I would really like to ask you to focus on the specific question that
9 I'm asking. Thank you.
10 JUDGE ORIE: Mr. Misetic.
11 MR. MISETIC: Yes, Mr. President, just in terms of the
12 description of D689, just so that the record is clear, it was said that
13 it's an UN document containing an analysis. Just so that it's clear,
14 it's a Belgrade Helsinki committee analysis, which is then forwarded
15 within the UN, just so that the record is clear. Thank you.
16 JUDGE ORIE: That's on the record.
17 Please proceed, Ms. Gustafson.
18 And perhaps, Ms. Bagic, let's try, indeed, to focus on what
19 apparently is the core of the question. The core of the question being
20 that the comments may be inspired, although it may be difficult for you
21 to say exactly what it is based on because it is comments by others, that
22 the factual effect of legislation might not always be found in the
23 wording of the legislation. If I adopt legislation on membership of
24 sport organisations of people higher that 2 metres and 5 centimetres, no
25 one will be surprised if the basketball Federation would say it was
1 directed against them, although the word "basketball" may not even be
2 mentioned in such legislation. That's, I think, as a matter of fact, the
3 kind of issues we're discussing here that even if there's no clear
4 reference to certain groups, that it is suggested by Ms. Gustafson that,
5 nevertheless, the effect may be primarily on certain groups. I think
6 that's what we're talking about, and there's no need to explain, again,
7 what, as we find it already in your statement, the purpose of the
8 legislation is because I take it that Ms. Gustafson is trying to take you
9 to the effect of this legislation.
10 Ms. Gustafson, is that correctly understood?
11 MS. GUSTAFSON: Yes, Your Honour. Thank you.
12 JUDGE ORIE: Please proceed.
13 MS. GUSTAFSON: If we go to page 4 in the English in this
14 document and page 3 in the B/C/S to Article 11.
15 Q. And this is the provision that provides for the 90-day dead-line.
16 And you were asked about this dead-line in your testimony
17 yesterday, and this was in relation to the dead-line in the decree at
18 page 26513, and you said:
19 "At the moment when the decree was drafted, the intention was to
20 resolve the relations as soon as possible. So by setting up this
21 dead-line, we wanted to allow the owners to return as soon as possible
22 and seek the restitution so that people could come into possession of
23 their property as soon as possible."
24 And you said "we wanted." By use of the word "we," in that
25 phrase, "we wanted to allow the owners to return as soon as possible,"
1 who are you referring to? Are you referring to the Working Group that
2 you were a part of that worked on drafting this law?
3 A. I had in mind the Working Group, but I also had in mind the view
4 of the government, that is to say, the view of the Croatian Parliament
5 which adopted this law.
6 Q. So, in your view, the Croatian parliament took the same view as
7 the Working Group because they passed the law, but you don't have any
8 specific knowledge about what individual members of the parliament or the
9 government, other than possibly Mr. Separovic, thought about this law, do
11 A. I wasn't present at the government sessions when this topic was
12 discussed. Therefore, I have no direct knowledge.
13 The government adopted the bill unanimously.
14 Q. And when you said that this view of the dead-line was the view of
15 the Working Group, specifically what is the source of your information
16 that causes you to conclude that that was the view of the Working Group
17 about this dead-line?
18 A. Well, I already said that we attended meetings, that we were
19 working on the wording of the law. We discussed the best possible
20 dead-line to be included. So, therefore, I have this knowledge that
21 originates from the period when we were working on this law.
22 Q. And do you remember now, when Mr. Separovic informed you that
23 this law -- that such a law was to be drafted, do you remember if he told
24 you that there was to be dead-line for the return and repossession of the
25 property? Can you recall that now?
1 A. It is difficult to remember any details concerning specific
2 discussions. In addition, the drafting of a bill or an enactment is a
3 long-lasting process. At what particular moment within the Working Group
4 or when it was that Mr. Separovic who was in charge of coordinating the
5 work on drafting the law within the ministry, it was decided that some
6 specific dead-line would be desirable, is nothing that I can remember.
7 Q. And yesterday you were also asked about the reason that the
8 dead-line was changed from 30 days to 90 days, and you said -- and this
9 is at 26533:
10 "The dead-line was expanded from 30 days, as in decree, to
11 90 days, because, at least that's how it seems to me now from this point
12 in time, because it turned out that it was not realistic that an owner
13 could return within such a short time-span of 30 days and asked a
14 restitution of his or her property. There were objective difficulties
15 because there were great migrations of the population."
16 Now, in that answer, you said that this was how it seems to you
17 now from this point in time. And from that answer, I take it that you
18 didn't know specifically at the time that the dead-line was changed, or
19 you can't remember specifically what the reason was for the change in
20 that dead-line, and you're just drawing a conclusion now about what you
21 think that reason might have been.
22 Is that right?
23 A. No, that's not right. Namely, this digression of mine had to do
24 with the fact that I'm talking about the period that happened 15 years
25 ago. It is difficult for one to remember all the details relating to the
1 drafting of a document. However, I already said, and I will try to
2 repeat this in brief, is the following. In the preparation of the
3 document, and in making the amendments to it, along with representatives
4 of the judiciary -- there is -- representatives of other ministries and
5 institutions took part as well, and so did the representatives of the
6 ministry of development.
7 So when we were discussing the possible amendments to the
8 wording, it was definitely obvious at the time that there were some
9 obstacles and that the 30-day dead-line was not a realistic one, that it
10 was to short. Therefore, in view of these difficulties, we sought to
11 extend the dead-line to 90 days.
12 Q. The draft law that you submitted to Mr. Separovic to take to the
13 government to be debated by the parliament, did that contain a 30-day
14 dead-line or a 90-day dead-line, or do you not remember?
15 A. I think that we already had a 90-day dead-line. But I cannot
16 confirm that with any certainty. Because there were no amendments to
17 this law is something that makes me feel and think that already at that
18 point the time-limit was 90 days.
19 Q. And when was -- when did you submit that law to Mr. Separovic to
20 take to the government and the parliament?
21 A. I truly cannot tell you the exact date. However, since the
22 decree was adopted by the government on the 31st of August, and the
23 Autumn sitting of parliament always starts after the
24 15th of September every year, we most probably prepared the final draft
25 of the bill immediately after we did the original draft and gave it to
1 Mr. Separovic or, rather, sent it to his office for him to submit this
2 final draft of the law to the parliament of the Republic of Croatia.
3 Q. And when would that have been?
4 A. That was sometime in September 1995.
5 Allow me just to -- to clarify. I'm referring to the final draft
6 of the Law on the Temporary Takeover and Management of Property, since
7 the bill had already been discussed and adopted by the parliament in
8 July of that same year.
9 Q. Now, you were --
10 MS. GUSTAFSON: If we could go to P475, please.
11 Q. You were asked about the -- this further amendment to the
12 Law on Temporary Takeover in January of 1996 where the 90-day dead-line
13 was removed and the law instead stated that the issue of returning and
14 possession and use would be regulated by the agreement on normalisation
15 of relations between Croatia and the FRY.
16 And you testified about the reason for removing that 90-day
17 dead-line as follows, and this is at page 26534 and following:
18 "During the implementation of this law, it turned out that
19 whatever the dead-line was, that the dead-line was not realistic because
20 there were such objective difficulties that one could not set any
21 dead-line and then request the owner to request the restitution of his or
22 her property. And perhaps the conclusions and impressions were wrong, so
23 it was better to remove the dead-line and allow the owner to request
24 restitution once he returns."
25 Now, when you said that there were such objective difficulties
1 that one could not set any dead-line and that perhaps the conclusions and
2 impressions were wrong, one of the conclusions that was wrong was that
3 these properties were abandoned, wasn't it? In fact, those properties
4 weren't abandoned. There were thousands of Krajina Serbs who wanted to
5 return to Croatia and repossess those properties, wasn't there?
6 A. I wouldn't agree with you. We are talking the property that, at
7 the time, when the law was passed and being implemented, was abandoned.
8 For that reason, we allowed for temporary possession of these properties.
9 However, since the ownership was indisputable and this ownership was not
10 affected in any way, there was an obligation to enable those who wanted
11 to return to Croatia to establish or re-establish the ownership of these
12 properties in Croatia.
13 I think that we are talking here about two different things.
14 Q. I think so too.
15 Were you involved in drafting this January amendment?
16 MR. MIKULICIC: I'm sorry to interfere my learned colleague, but
17 I have a remark on the transcript, as it refers to the translation of the
18 Croatian word "posjed" which was translated as ownership. I don't
19 believe this is a proper translation.
20 So maybe if our interpreters could check this.
21 JUDGE ORIE: Is there any reason to reconsider the declaration of
22 the word which was pronounced by Mr. Mikulicic as "posjed"?
23 Could I hear from the English and/or the French booth.
24 THE INTERPRETER: Well, the English translation supposedly of
25 "posjed" could be either property or ownership.
1 JUDGE ORIE: Mr. Mikulicic -- and let me just check with the
2 French booth first.
3 MR. MIKULICIC: Yes.
4 JUDGE ORIE: Yes, several comments were made by the booth about
5 the translation of the word "posjed," so the Chamber is now aware that we
6 should take specific care of that word and --
7 MR. MIKULICIC: Yes, Your Honour, but let me suggest something in
8 order to be on the safe side. Could we ask the witness to define in
9 legal terms, which is -- which is obviously very capable person to do so,
10 to define the word posjed in a legal sense of word and the word
11 "vlasnistvo," ownership, in a legal sense of word. So in order to avoid
12 any misunderstanding on that terms.
13 JUDGE ORIE: I would agree with you that we should invite the
14 witness to explain what she meant when she used the word posjed. Now to
15 suggest -- to explain another word which she hasn't used is perhaps
16 something for cross-examination.
17 Mr. Misetic.
18 MR. MISETIC: Mr. President, we've had this issue come up with
19 this word before, and I would just draw the Chamber's attention to page
20 18246 beginning at line 11 going through line 18.
21 JUDGE ORIE: Yes, I have no clear recollection of that. At the
22 same time, even if at that time the matter was raised, then when a word
23 may have different meanings then, of course, we should always ask the
24 witness in what way he used that or she used that expression.
25 Ms. Gustafson, I think it would save time if we do it right now
1 and not wait until cross-examination because it might avoid
3 So if you would invite the witness to explain what she mentioned
4 when she -- what she meant when she used the word "posjed," that might be
5 of assistance.
6 MS. GUSTAFSON: Thank you.
7 Q. You heard the Judge, Ms. Bagic, if you could please, do that.
8 Thank you.
9 A. I will and thank you for giving me an opportunity to give this
10 explanation of what I mean when I wording -- using the word "posjed."
11 The word "posjed" in our legal system means the ownership or the
12 possession and practical use of an asset. I think that's the simplest
13 explanation of the word posjed. It is one of the ownership powers in a
14 broad sense which implies the right to dispose of the property. And
15 "posjed" is only one of these rights and it involves practically the use
16 of one's property or possession.
17 JUDGE ORIE: So it is an aspect of ownership.
18 THE WITNESS: [Interpretation] Yes, that's one of the ownership
20 JUDGE ORIE: Thank you.
21 Please proceed, Ms. Gustafson.
22 MS. GUSTAFSON: Thank you.
23 Q. Ms. Bagic, were you involved in drafting this January 1996
24 amendment to the Law on the Temporary Takeover? And if could you answer
25 with a yes or no, that would be helpful.
1 A. Yes.
2 Q. Now, you said -- again, when you were asked about the reasons for
3 this amendment, you said:
4 "It was better to remove the dead-line and allow the owner to
5 request restitution once he returns."
6 This amendment did not -- it removed the dead-line but it did not
7 specifically allow the owner to request restitution once he returned.
8 And my question is: Why, if, as you say now it would have been
9 better to do that, did the Croatian authorities not just simply do that,
10 just take the words "within 90 days" out of Article 11 and allow the
11 owner to request restitution once he returned?
12 A. I think that I said yesterday that, at that time, the
13 Republic of Croatia and the Federal Republic of Yugoslavia were in the
14 process of mutual communication relating to refugee issues. One of those
15 segments was the anticipated and expected agreement on normalisation of
16 relations between the Republic of Croatia and the FRY, which envisaged
17 direct cooperation between competent authorities of the two states, as
18 well as a joint commission that was supposed to exchange information and
19 work on removing the obstacles relating to the return of citizens to
20 their former places of residence.
21 Q. We're talking here about the Croatian property rights of people
22 who were born in Croatia and had lived virtually all of their lives in
23 Croatia and may or may not have been residing in the FRY at the time.
24 And it was not necessary to condition the Croatian property rights of
25 Croatian Serbs on an agreement on normalisation with a foreign country,
1 was it?
2 A. [No interpretation]
3 THE INTERPRETER: The interpreters do not have the sound.
4 JUDGE ORIE: There seems to be a technical problem as far as
5 sounds is concerned. I see that your microphones are switched on. Could
6 you speak just a few words for a test of the sound, Ms. Bagic.
7 THE WITNESS: [Interpretation] That's right.
8 JUDGE ORIE: Apparently these words were understood by the
9 interpreters' booth. Let's slowly try to catch up again.
10 MS. GUSTAFSON:
11 Q. Ms. Bagic, if you could repeat your answer from the beginning,
12 because the translators couldn't hear you. Thank you.
13 A. That's right. Namely, later it turned out, and that was
14 established by the constitutional court in its 1997 decision, that such
15 prescribing the restitution of the property of Croatian citizens cannot
16 be linked to the signing of the agreement, because those people were
17 Croatian citizens and must enjoy the same rights as all the other
18 Croatian citizens. Therefore, this provision was quashed by the
19 constitutional court.
20 However, when this amendment was made and the restitution was
21 governed in a certain way, the intention was to enable these people, our
22 citizens who had abandoned their property but were wishing to return, to
23 do so at the time that they deemed the most appropriate with regard to
24 their wishes and that it wouldn't be advisable to impose any deadlines.
25 Q. Were you given instructions when this amendment was drafted to
1 condition the property rights of these Croatian citizens on a
2 normalisation agreement with Yugoslavia; and, if so, who gave you these
4 A. No, we didn't receive any instructions that would condition the
5 restitution on the signing of this agreement on normalisation of
6 relations. They were still the owners. Therefore, the issue was to
7 enable them to take possession of their property and to allow them to use
8 it practically in the Republic of Croatia. This was probably an
9 indication that there was a certain draft of this agreement being
10 prepared, and that, for that reason, it would be advisable to change the
11 dead-line for restitution.
12 If you allow me, I would just like to add the following: We were
13 faced with a situation when there was intensive communication between the
14 Ministry on the one side, while, at the same time, the process of finding
15 accommodation and the process of return of refugees and IDP was subject
16 of very intense communication and talks with representatives of the
17 international community. Very often, particularly at that time, I think
18 that there was some mixup between property right and the rights to
19 restitution and practical use. In order to avoid such erroneous
20 interpretations, we believed that it was better not to link restitution
21 to any dead-line.
22 Q. I don't believe you've answered my question, so I'm going to try
23 to ask it more specifically.
24 Did you receive any instructions to make the issue of returning
25 and possession and use of property conditional on the signing of an
1 agreement on normalisation of relations with the FRY; and, if so, who
2 gave you those instructions?
3 MR. MISETIC: Your Honour, I'm going object. I believe the first
4 sentence of the last answer, answered that question.
5 MS. GUSTAFSON: I don't believe so, Your Honour. The focus was
6 on ownership, and I think we got sidetracked.
7 JUDGE ORIE: From the follow-up of the answer, it is unclear
8 whether it is a real answer to the question.
9 So the question simple is you get rid of the time-limit; it's
10 apparently replaced by another condition, that is, an agreement between
11 Croatia and the Federal Republic of Yugoslavia on the normalisation of
12 the relations.
13 Now, did you receive from anyone instruction or guidance to say,
14 Well, the 90 days should be replaced by the condition of the agreement
15 between Croatia and the Federal Republic. That's the question.
16 THE WITNESS: [Interpretation] Thank you for this clarification.
17 Since the question was relating to ownership, that's why I gave my answer
18 in the way I did.
19 As far as restitution is concerned, as people who work in -- both
20 in the ministry and on the amendment to this law probably from the
21 government and competent ministries we received information that the
22 restitution issue would be governed and resolved by the agreement and
23 that would affect particularly Article 11, paragraph 2 of the Law on
24 Takeover and Management of the property.
25 JUDGE ORIE: So it's a long, but this reference to such an
1 agreement was adopted in the draft on the instructions of the government.
2 Is that how I have to understand your answer?
3 THE WITNESS: [Interpretation] Yes, Your Honour.
4 JUDGE ORIE: If you would try to make your answers as short and
5 as clear as possible, that would be appreciated.
6 Ms. Gustafson.
7 MS. GUSTAFSON: Thank you, Your Honour.
8 Q. And, Ms. Bagic, this -- the law as amended here did not contain
9 any mechanisms for Krajina Serbs to repossess their property that had
10 been taken over. And we looked yesterday at the agreement on
11 normalisation, which is Exhibit D412, that came into effect some eight
12 months after this amendment, and it also didn't provide any mechanisms to
13 allow Krajina Serbs to repossess their property. And the first time such
14 mechanisms were put in place was under the June 1998 return programme
15 that you were shown yesterday, and, in particular, the provisions under
16 point 9 of that programme. Is that right?
17 A. No, that's not correct, because as for the Law on the Temporary
18 Takeover and Management of Property, regardless of the amendment to
19 Article 11, paragraph 2, and the time-limit that we talked about, there
20 was still a provision that if an owner should return and request the
21 repossession of property that this would be quashed and the property
22 would be returned to the owner.
23 Q. Where is that provision?
24 A. That provision is linked with Article 8, I believe, and
25 Article 11 of the Law on the Temporary Takeover.
1 Q. Well, we've got the Article 11 here. It doesn't provide any
2 mechanisms for Krajina Serbs to repossess their property, does it?
3 And if we could also go back to D422 and Article 8 of that law so
4 you could see that.
5 MS. GUSTAFSON: That's at page 3 of the English, and page 3 of
6 the B/C/S.
7 MR. MIKULICIC: Your Honour, maybe it will be easier for the
8 witness to follow the examination by having a hard copy of the -- of the
10 JUDGE ORIE: I take it that Ms. Gustafson has no objection to
11 providing the witness with a hard copy.
12 MS. GUSTAFSON: No, not at all, if Mr. Mikulicic has a spare one.
13 JUDGE ORIE: Your assistance is appreciated, Mr. Mikulicic.
14 THE WITNESS: Thank you.
15 [Interpretation] The provision of Article 11, paragraph 2 of the
16 law is still there, and it says --
17 Q. [Previous translation continues] ... sorry to interrupt you.
18 Article 11, as we just saw, was replaced by the amendment in
19 January of 1996. So the Article 11 you're looking at now no longer
20 existed as of January 1996.
21 A. You're partly right, because in Article 11, paragraph 1, it was
22 the one that was changed. Then it says that the issue of returning the
23 property for possession and use, but now I don't see it anymore -- or now
24 this was quashed as part of the agreement of -- on normalisation between
25 the Republic of Croatia and the Federal Republic of Yugoslavia. But
1 paragraph 2 remained there. It hasn't been changed, and it says against
2 it's decision by which the commission quashed the decision under
3 Article 5 of this law, the --
4 THE INTERPRETER: The interpreter notes that he cannot interpret
5 this at that speed. We don't have a hard copy. Sorry.
6 JUDGE ORIE: Could you please slowly read the portion you
7 referred to because the interpreters were not able to follow you due to
8 the speed of speech.
9 THE WITNESS: [Interpretation] I apologise, Your Honour.
10 So the provision remained, which reads:
11 "Against the decision by which the commission quashed the
12 decision under Article 5 of this law, the owner of the property, the
13 person to whom this property was given for use, the ombudsman can file an
14 appeal with the Ministry of Justice or to the ombudsman."
15 MS. GUSTAFSON:
16 Q. That's a provision that allows certain persons to dispute a
17 ruling that gives away a property for possession and use under Article 5,
18 but there was no provision allowing an owner to request repossession of
19 their property under the amended 1996 law, was there?
20 A. That's correct. Namely, perhaps the provision in paragraph 1 was
21 not phrased in the best possible way.
22 However, what really existed and what was implemented in
23 practice, and it has to do with the entirety of this law, was that the
24 owner could always, once he returned, request the repossession of his
25 property, because that was his basic right as the owner.
1 Q. And how would he do that without any provision in this law
2 providing a mechanism to do so?
3 A. He could do it because, if he really was the owner, according to
4 the Law on Basic Property Law, and, later on, it was another law,
5 according to which he could request the Housing Commission to allow him
6 to repossess the property, and it was always his right to file a
7 complaint with the competent court.
8 Q. Can you tell me exactly what that law is and exactly what
9 provision you're referring to?
10 A. We are talking about the Law on Basic Property Relations which
11 the Republic of Croatia took over after the break-up of Yugoslavia, and
12 we are talking about the Law on Ownership and other legal affairs which
13 came into force on the 1st of January, 1997. And I think that in the
14 provisions in Article 160 and 162 it reads that an owner may ask for
15 protection, that is to say, to ask for restitution or repossession of his
17 Q. Those laws didn't make any specific reference to the Law on
18 Temporary Takeover in those provisions, did they?
19 A. No, there are no references because these are basic laws, and the
20 Law on the Temporary Takeover was a special law which regulated the
21 status of property which had been abandoned at a certain point in time.
22 Let me not repeat everything else that we have been talking about until
24 Q. Thank you. And are you aware of any case where a Krajina Serb,
25 between the time of this amendment in January 1996 and the time that the
1 mechanisms for repossession were instituted in 1998, are you aware of any
2 case where a Krajina Serb was able to successfully repossess their
3 taken-over property?
4 A. This wasn't really my duty. This was part of the competence of
5 other ministries, so I cannot give you this information.
6 What I do know is that this process of repossession was
7 implemented in accordance with the procedures provided by this law, and
8 the relevant bodies were in charge of that. And, of course, if someone
9 filed a complaint with a court, then court proceedings were initiated.
10 Q. So you are not aware of any case; is that right?
11 A. I do not have such information at my disposal.
12 Q. Now, again, going back to what you said yesterday about the
13 reason for the deadlines in the temporary takeover law --
14 JUDGE ORIE: Ms. Gustafson, could I ask a few questions to
16 This law on the temporary taking over, you said, was a special
17 law. Would this mean that as long as the property was abandoned that
18 that law would apply and not the basic law? Was it considered the
19 lex specialis which would derogate from the application of a general law?
20 THE WITNESS: [Interpretation] Your Honour, this law was a special
21 law in the sense that it regulated the issue of abandoned property and
22 the possession of this property and, in that sense, the issue of
23 possessing this property and the temporary use of it, it was a special
25 JUDGE ORIE: Which doesn't answer my question yet. Is whether
1 you could invoke if the property was abandoned, whether you could invoke
2 the basic legislation on ownership or not, the legislation you just
4 Would that apply in a court, or would the court say, No, you
5 should make your application under the Law of the Temporary Takeover
6 because it's abandoned property and that is what that lex specialis is
7 meant for?
8 THE WITNESS: [Interpretation] The owner could refer to the basic
9 law on property relations and request eviction. However, the courts
10 could also establish the right of the owner to repossess the property.
11 However, in practice, in courts, this law was also applied in
12 court proceedings when eviction was requested on the basis of the law on
13 property, the courts would decide that -- to put it simply, the decision
14 would not be implemented as long as the temporary user was not provided
15 with appropriate accommodation.
16 JUDGE ORIE: There seem to be two different issues. The first
17 one is whether the eviction would be effective if no accommodation has
18 been found for the temporary user of that property, which is not the same
19 issue. I think we see that in the decision -- the judgements of the
20 European Court on Human Rights which you referred to.
21 Is my recollection right, that the lex specialis issue played a
22 role in the proceedings in Strasbourg, that applicants were sometimes
23 confronted with inapplicability of certain laws because special laws,
24 ruling on these matters, would apply and not the laws they invoked?
25 I have to re-read it, but perhaps it's -- you have a clear
1 recollection on that.
2 THE WITNESS: [Interpretation] Yes. Namely, the issue of
3 repossession of property and the accommodation of expelled persons and
4 refugees, after the decree and the Law on the Temporary Takeover and
5 Management of Property, with its amendment, was later regulated by the
6 Programme for the Return of Expelled Persons, Refugees, and Displaced
7 Persons from 1998, which is also referred to in the Law on the
8 Termination of Validity of the Law on Temporary Takeover and Management
9 of Property. And I mentioned this because the Programme for the Return
10 of Expelled Persons, Displaced Persons, and Refugees and the Law on the
11 Invalidation of the Law on Temporary Takeover included a decision to make
12 the housing commissions in charge of enabling the repossession of
13 property and, as well, the municipal courts, and that in these
14 proceedings, which would be summary proceedings, the provisions on -- the
15 provisions of the general administrative law would then be applied.
16 Later on and some decisions of the European Court of Human Rights
17 also referred to this, it was regulated by the Law on Areas of Special
18 State Care, and the commission which was competent was taken over by the
19 ministry of development and reconstruction. And the state attorney's
20 office of the Republic of Croatia was now in charge of court proceedings.
21 I am mentioning this because during this process of repossession
22 and allocating accommodation to refugees and displaced persons, the
23 competence changed. They were shifted from one body to another. So with
24 the shift of the competence, some bodies were declared competent or not,
25 or they would send this to another body, most often the housing
1 commission. And in the decisions of the European Court of Human Rights
2 in some of the decisions not all of them, it is noted that this procedure
3 of resolving the repossession lasted too long and that the length of time
4 during which the issue was being resolved actually violated the rights of
5 the applicant. And the European Court of Human Rights did not question
6 the competence and the authority of the bodies who were to decide about
7 this, but they referred to the length of time in some of the cases which
8 ended up before the European Court of Human Rights.
9 JUDGE ORIE: Would you agree that they do not only consider the
10 length of time but also the effective access to court proceedings in this
12 THE WITNESS: [Interpretation] Yes, in that sense, considering the
13 duration of the proceedings, it was not a very effective manner to settle
15 JUDGE ORIE: No, it's not an effective manner of settling
16 matters, but the access to courts was ineffective which was resulted in
17 the Radanovic case of a violation of Article 13 of the
18 European Convention on Human Rights, isn't it? It's not just a matter of
19 time. It's not just an effective settlement, but it is access to courts
20 which turns out to be ineffective, perhaps for the reasons you explained,
21 that the competence changed again and again; conditions changed several
23 The issue, apparently, is the following, Ms. Bagic. You're
24 telling us that out of an abundance of caution you wanted to return these
25 people within 30 days and if that was unrealistic then in 90 days and
1 then that a system should be there to have them all returned.
2 What we find in these decisions is that those who are following
3 all the court and bureaucratic rules, apart from those who got lost in
4 some of the other cases, that, after six years, it took them six years to
5 get their property -- the use of their property back. That's -- that's
6 apparently what keeps you and Ms. Gustafson apart. She wants to draw
7 your attention to the elements I just mentioned; whereas, you are
8 emphasizing how -- how caring the legal system was for those who wanted
9 to return.
10 Would you -- if I try to explain what keeps you apart, would have
11 you any comment on that?
12 THE WITNESS: [Interpretation] Thank you, Your Honour, for
13 allowing me to clarify what I was just talking about.
14 The system was envisaged in such a way, and so was it written,
15 that relatively quickly repossession of property should be enabled.
16 However, what we are talking about now, and that's the application of
17 this system, it cannot be excluded that it wasn't always effective. It
18 certainly wasn't effective in some individual cases.
19 That was one of the reasons why these laws were changed, why the
20 programme was adopted, why the programme itself was later changed. These
21 were reactions to its imperfections and to what turned out to be
22 inapplicable in practice. Of course, that is why cases cannot be
23 excluded in which the proceedings really lasted very long. From the
24 point of view of the person who was asking for the repossession of
25 property, it was certainly too long; and that was why, in some cases, the
1 European Court did establish that there was a violation or infringement
2 that, in particular cases, considering the circumstances of that case,
3 the mechanisms which the owner had at his disposal were not efficient.
4 JUDGE ORIE: Thank you for that answer. Now one final matter:
5 Abolishing the 90 days and replacing it by an agreement between the
6 Republic of Croatia and the Federal Republic of Yugoslavia. You
7 emphasised several times that the matter was -- the legislation was not
8 intended for Serbs or for whatever ethnic group.
9 What about citizens which had no relation with the
10 Federal Republic of Yugoslavia. How would this making them dependant
11 between Croatia and a state with which they had nothing to do would that
12 not even be a -- another obstacle? Why only an agreement with the
13 Federal Republic of Yugoslavia and not Bosnia-Herzegovina, not Italy,
14 not ...
15 Could you explain why such an agreement on which various owners
16 may have had no influence whatsoever, would, nevertheless, be the
17 condition for repossession of their property.
18 THE WITNESS: [Interpretation] That was not the condition for
19 returning the property for repossession because the owners could always
20 come back and request to repossess their property.
21 And why only with the Federal Republic of Yugoslavia? Because
22 the Republic of Croatia had been attacked. There was an aggression
23 against the Republic of Croatia by the Federal Republic of Yugoslavia as
24 part of the former Yugoslavia; and it was important, at that time,
25 immediately after the war, to normalise the relations. And the prospect
1 was only that an agreement like that could be concluded with the
2 Federal Republic of Yugoslavia. This is the best explanation I can give
3 as to whether there was only an agreement of this kind envisaged with the
4 Federal Republic of Yugoslavia.
5 JUDGE ORIE: Which introduces another matter.
6 Is it true that, in order to return, that those who owned
7 property in Croatia, they were dependant on the conclusion of such an
8 agreement? At least they were not free to return. And I'm talking about
9 Serbs living in the Federal Republic of Yugoslavia.
10 THE WITNESS: [Interpretation] No. Even though the agreement was
11 not concluded, at that period they could still return, if the wanted to,
12 being Croatian citizens. And they could exercise all their rights just
13 as all the other Croatian citizens.
14 JUDGE ORIE: This Court has heard evidence on thoughts about
15 whether a mass return could be allowed or not.
16 Could you -- do you have any views, or do you have any knowledge
17 on such views?
18 THE WITNESS: [Interpretation] I have no direct information about
19 that, because I did not work directly on the return of expelled persons,
20 displaced persons, and refugees. I did work on drafting these documents,
21 especially the decree and the Law on the Temporary Takeover and
22 Management of certain property. But as for the procedures that had to do
23 with return, I only have some indirect knowledge about this, as someone
24 who did take part in certain coordinations that had to do with all the
25 issues relating to the returning of expelled persons and refugees.
1 JUDGE ORIE: Tell us about your indirect knowledge.
2 THE WITNESS: [Interpretation] It is not incorrect knowledge, it
3 is indirect knowledge. Because the issues relating to the return of
4 expelled persons, displaced persons, and refugees were issues that were
5 discussed at working meetings or coordination meetings of the government.
6 Even after the year 2000, there was a special coordination that was
7 founded for areas of special state care, when all the conditions and
8 procedures relating to the return of expelled persons and refugees were
9 discussed. And I already said there were attempts to remove the
10 difficulties that were noted on the ground, in connection with the
11 application of the law or the -- the existing practice. The result of
12 the all this, after the law and special after the decision of the
13 constitutional court, was also the adoption of a document which is
14 believed to be an operational document which is binding legally and that
15 was the Programme for the Return of Expelled Persons, Displaced Persons,
16 and Refugees. And I believe that it provided in more detail various
17 situations relating to the return of expelled persons, displaced persons,
18 and refugees, so I refer to this document. And the information I have
19 about what this document contains in connection with, on the one hand,
20 simplification and, other hand, more detailed provision of the conditions
21 under which the expellees and refugees were to return to Croatian and
22 repossess their property.
23 JUDGE ORIE: Yes. And do I understand that as long as these
24 programmes and plans were developed that there was no free return for
25 everyone who wished to return, because you so much emphasised in the
1 beginning that your primary aim was to get everyone back who wished to go
2 back but that they were dependant on finalising these programmes,
3 projects, Working Groups, whatever they were, agreements.
4 I'm trying to get to the core of what apparently is put to you by
5 Ms. Gustafson and by the Prosecution and what the Chamber would like to
6 get a better insight in.
7 THE WITNESS: [Interpretation] No, Your Honours. It is not the
8 issue that persons were not allowed or were not given an opportunity to
9 return. The situation was such that, despite the adopted regulations and
10 the efforts to implement them, it turned out that there were still
11 objective difficulties in the process of their implementation.
12 Therefore, it was the duty of the state to react and change such
13 procedures and regulations, to endeavour to improve them, to make them as
14 transparent as possible, because if there were indications that in the
15 implementation of these regulations they do not produce the effects that
16 were desired, then procedures should be simplified and be more accessible
17 to those to whom they referred. That was the intention of these changes
18 and this whole evolution that took place with regard to the legal
19 framework for the return of expelled persons, displaced persons, and
21 JUDGE ORIE: Thank you for those answers.
22 We will have a break. Ms. Gustafson, apologies on intervening,
23 but sometimes it's better to hear the evidence in the context of what is
24 raised by a party at that very moment.
25 We'll resume at 11.00 after the break.
1 --- Recess taken at 10.36 a.m.
2 --- On resuming at 11.07 a.m.
3 JUDGE ORIE: Ms. Gustafson, are you ready to proceed?
4 MS. GUSTAFSON: Yes. Thank you, Your Honour.
5 Q. Ms. Bagic, just before the break, in answer to a question from
6 His Honour Judge Orie, you explained that you did not work directly on
7 issues of return and you had no direct information about whether or not a
8 mass return of Serbs would be permitted.
9 And just to follow up on that, I'd like to ask you, more
10 specifically, in 1995, is it right that did you not have a role in
11 establishing or implementing Croatia's policies on the return of Serbs to
12 Croatia. Is that right?
13 A. I didn't have a role in creating the policy, in terms of adopting
14 political decisions. I also don't think that this is not to do with
15 permitting or not permitting the return, but, rather, the manner in which
16 that would be made possible, as well as about the procedures for
17 effecting the return, of course, in compliance with the regulations of
18 the Republic of Croatia.
19 As a lawyer and an expert who carried out different duties within
20 the Ministry of Justice, I did take part in drafting the regulations.
21 Q. In 1995, did you take part in drafting any regulations regarding
22 the return of Serbs to Croatia?
23 A. I don't know exactly which regulations you have in mind.
24 Q. I don't have any in mind. As far as I'm aware, there aren't any.
25 But you said you took part in drafting different -- drafting regulations.
1 I'm asking you if you worked on drafting any regulations regarding the
2 return of Serbs to Croatia in 1995.
3 A. I did take part in drafting the law and the decree, that is to
4 say, the Law on the Temporary Takeover and Management of certain
5 properties, which, inter alia, referred to the Croatian citizens of
6 Serbian ethnicity.
7 Q. We know you took part in drafting that law. Did you take part in
8 drafting any other regulations regarding the return of Serbs to Croatia
9 in 1995.
10 A. I cannot remember any such regulation.
11 Q. Okay. And the Chamber has heard evidence of members of the top
12 Croatian leadership, including President Tudjman, Mr. Sarinic,
13 Mr. Jarnjak, discussing these issues, in particular, the issues you were
14 referring to, the manner in which Serbs would return, procedures for
15 effecting the return, and the timing of such return, as well as whether
16 or not there would be a mass return.
17 Do you know anything about those discussions or the decisions of
18 the leadership about those matters in 1995?
19 A. I don't know anything about that.
20 Q. Okay. So when you referred to objective difficulties to return
21 in the context of the deadlines in the property and the temporary
22 takeover of property law, you aren't really in a position to say, are
23 you, to what extent the decisions taken by the leadership about the
24 manner and timing of the return of Serbs affected the ability of Serbs to
25 return to Croatia, are you?
1 A. Yes.
2 Q. Just so I understand you, you're saying it's correct that you are
3 not in a position to talk about those matters.
4 A. Yes, that's right.
5 Q. Okay. And, again, going back to the -- the deadlines in the
6 decree and the Law on the Temporary Takeover of Property, the reason you
7 gave for the extension of the dead-line from 30 to 90 days and then its
8 removal was that the deadlines turned out to be unrealistic. And the
9 Chamber has also heard evidence that the deadlines under the temporary
10 takeover decree and law were extended and then lifted under considerable
11 pressure from members of the international community, including, in
12 particular, the US and the EU.
13 Do you have any specific information about international pressure
14 being put on Croatia, in relation to these deadlines at this time, in
16 A. No, I don't have any specific information about the pressure from
17 the international community, both with regard to the implementation of
18 the law itself and the deadlines.
19 Q. And, again, you testified yesterday that the reason for the
20 deadlines in the temporary takeover law was that you wanted to allow the
21 owners to return as soon as possible and seek their restitution, and you
22 explained that was the view of the Working Group.
23 Now, in fact, whatever the view of the Working Group was, the
24 real reason for these deadlines and other limitations on the ability of
25 Serbs to repossess their properties was that the Croatian leadership
1 wanted to permanently resettle Croats into Serb-owned houses and prevent
2 the return of those Serbs to Croatia.
3 Do you have anything to say about that?
4 A. I cannot comment on that, because I don't have any knowledge
5 about that.
6 The purpose and the aim of the regulations in the way that they
7 were set up was to enable the owners to repossess their property wherever
8 it was located in the territory of the Republic of Croatia.
9 Q. And to clarify, that was the purpose, as far as you were aware
10 and as far as the Working Group was aware; is that right? That's your
12 A. I can only speak about what I know, and I know what the task of
13 the Working Group was. I know what the regulations were. And I also
14 know how they were implemented, in practice, later.
15 Q. Okay.
16 MS. GUSTAFSON: Could we go to D1823, please.
17 Q. Ms. Bagic, this is the 31st of August closed session of the
18 government, the minutes that were shown to you yesterday.
19 MS. GUSTAFSON: And if we could go to page 11 in the English and
20 page 21 in the B/C/S.
21 Q. And this is Mr. Separovic speaking here. And at the top of the
22 page in the B/C/S and near the bottom of the page, beginning in the
23 second paragraph of his speech, you can see he says:
24 "I absolutely support the law. The decree is a bit legally and
25 constitutionally questionable, but since we know for sure that the law
1 will be passed, then this possible unconstitutionality, constitutionality
2 will be dismissed. I propose that the Article 11 actually be altered
3 considerably in agreement with the vice-president; it should not mention
4 the ownership and how to acquire ownership, but, rather, to have one
5 provision saying that this issue is to be resolved by a separate
6 regulation ..."
7 And then in the next paragraph he says:
8 "We can have objections here that in this way we are promoting
9 nationalisation, that there is property owned by the Republic, that we
10 are carrying out nationalisation; we could face the accusations, as our
11 constitution does not allow it. And in this other case, if we transfer
12 the [sic] ownership right onto those persons, then we have here an
13 adverse possession, then we have a case of acquiring ownership through an
14 institute of adverse possession, and in that case we have this basic
15 time-limit of 20 years. This is too long for us to wait. That is why I
16 would opt for the proposal set down by the vice-president, Misetic ... to
17 shelf this matter for the time being. This issue of regulation of the
18 ownership right; and that the dead-line for filing the request for
19 repossession ... be set on 30 days from the day the law comes into
20 effect ..."
21 MS. GUSTAFSON: And if we could now move to page 14 in the
22 English and page 26 in the B/C/S, starting at the bottom of the page in
23 the English and near the top of the page in the B/C/S. If we could move
24 down in the English.
25 Q. And this is Mr. Bosiljko Misetic speaking now. And he says --
1 it's about three lines down in the B/C/S:
2 "This is one thing and the government should define this
3 precisely and say if they support this idea that it is given away for
4 use, provided that a lex specialis is to eventually regulate this issue
5 of ownership or are we to grant them ownership right away? My personal
6 opinion" --
7 MS. GUSTAFSON: If we could turn the page in English, please.
8 "My personal opinion is that it is more prudent in a political
9 sense of the word, if we, at this particular moment, give it away for use
11 MS. GUSTAFSON: If we could go to the bottom of this page in the
12 English and the next page in the B/C/S.
13 Q. Here, Mr. Simunovic is speaking. And beginning at the second
14 sentence of his speech, he says:
15 "When we look from the point of view of the foreign policy, there
16 will be certain expenses, as well as a considerable coercion. It
17 specifically applies to Article 11; I am referring to Article 11 in
18 particular and to what Mr. Prus, Separovic, and Pavlovic say here, i.e.,
19 the principle of sanctity and inviability of the property, as when we
20 speak of the coercion, the pressure will be the hardest when it comes to
21 the use of the term property."
22 And then the next page in English:
23 "Using the property is one thing, as the western world is highly
24 rational. They will accept the preservation of the capital, preservation
25 of the resources. But the infringement on other people's property is
1 something that contravenes the principles of the constitution of the
2 western societies, ergo, I am entirely for the variant that tends to
3 treat the question of an aspect of foreign policy of using rather than to
4 infringe on the property be it only provisional in round one."
5 And, finally, if we could go to page 19 of the English and
6 page 33 of the B/C/S. And this is Prime Minister Valentic speaking. And
7 it's at the at the top of the page in B/C/S and near the bottom of the
8 page in English, starting at the second sentence of the last paragraph:
9 "Secondly, I propose that the acquisition of ownership be defined
10 by a separate law. We have neither time nor possibility now, nor is it
11 necessary that we encounter all those political hazards and minefields;
12 therefore, we have time to calmly regulate the issue of ownership in a
13 separate law. I suggest that this be a second position. The only
14 problem I see as disputable and a dangerous one is Article 11 which
15 explicitly says that if, within a certain dead-line, one does not
16 register, it shall then become the state ownership. And I think that it
17 can be politically very dangerous for us. Therefore, I suggest that,
18 once again, we consider here and in the inner cabinet tomorrow morning,
19 if necessary, together with the Ministry of Justice, how to define it,
20 that it still remains a sequestration.
21 "If we infringe the ownership, we are faced with the danger to
22 suffer an indefensible attack, not to mention to which extent the
23 ownership is sacred in the west and how much we should advocate for the
24 private ownership and, as a state, we have the possibility of management.
25 People who enter must have the security of usage, so we shall see how to
1 resolve the issue of ownership. And even if we could pass the ownership
2 to them, we would not do that, due to the reasons mentioned by the
3 Deputy Prime Minister Misetic. As might be expected, there will be cases
4 of reselling, misuse, so it will be necessary to establish the criteria."
5 Now, you explained today that you worked on the -- drafting the
6 property law decree that was submitted to the government and discussed at
7 this session. And yesterday in your evidence you said - and this is at
8 page 26505:
9 "When a law or a decree were being drafted, we never discussed
10 seizure of ownership or the right to property in any way whatsoever."
11 Now, is it not the case that as was discussed here and as
12 specifically mentioned by the prime minister, that the decree that was
13 presented to the government and that they discussed at this session
14 actually did provide for a transfer of ownership of property to the state
15 under Article 11 but the participants decided that that would not be
17 Is that right, that the original decree that was presented to
18 the -- draft decree that was presented to the government provided for an
19 outright transfer of ownership to the state.
20 A. It is possible that one of the options was this one, in view of
21 the fact that before there were plenty of cases of swapping or sale of
22 the property. However, eventually, the version that all the experts
23 advocated was adopted, and therefore it was decided not to infringe upon
24 the right to ownership as an inalienable right.
25 Q. Well, as we can see from the discussion, that's what the
1 government decided here. But the draft of the decree that you and the
2 Working Group presented to Mr. Separovic to discuss at the government did
3 contain a provision for the transfer of ownership under Article 11.
4 Isn't that right?
5 A. As I said, a number of experts took part in this. The decree
6 with contents like this usually have some alternatives. It is possible
7 that one of the alternatives was that with the fact that we also observed
8 that there are many dangers implied in such a solution.
9 Q. Now, you saw in this discussion, in particular, the comments of
10 the prime minister and Mr. Simunovic that this provision for the outright
11 transfer of ownership would be politically dangerous and they referred to
12 the views of western nations. Were you involved in any discussions about
13 the political considerations that might affect the wording of these --
14 this decree or the law such as those mentioned by the prime minister and
15 President Simunovic?
16 A. No, I did not participate in any political discussions. I only
17 participated in expert discussions.
18 MS. GUSTAFSON: If we could now go to 65 ter 3D00959.
19 Q. And, Ms. Bagic, these are the minutes of the -- an open session
20 of the government held also on the 31st of August, 1995, apparently
21 immediately after the closed session that we just looked at, and this is
22 the session where the decree is, in fact, adopted.
23 MS. GUSTAFSON: And if we could go to page 17 in the English and
24 page 22 in the B/C/S.
25 Q. And this is part of a speech by Mr. Cedomir Pavlovic. And
1 Mr. Pavlovic was an ethnic Serb and the only ethnic Serb member of the
2 government at the time. Is that right?
3 JUDGE ORIE: Could you answer the question, please. Whether it's
4 right whether --
5 THE WITNESS: [Interpretation] I apologise, I did not know that I
6 was expected to provide an answer.
7 I suppose that he was.
8 MS. GUSTAFSON:
9 Q. Do you know that or do you suppose it?
10 A. I suppose. I do not know that Mr. Pavlovic was the only
11 representative of the Serbian ethnic group in the Government of Croatia
12 at the time.
13 Q. But you are aware that he was a -- he is an ethnic Serb?
14 A. I did not take that in account, but I believe that it is so.
15 Q. Okay.
16 MS. GUSTAFSON: If we could --
17 Q. If you could look at the last full paragraph in the B/C/S. And
18 this is it the fourth paragraph down in the English, beginning with the
19 words: "If I might ..."
20 And Mr. Pavlovic says -- and they're discussing the decree now in
21 open session:
22 "If I might be permitted to underline a small dilemma, this is to
23 do with deadlines, what the deadlines refer to. I understand that the
24 deadlines refer to what is established, 30 or 45 days in the submission
25 of the intent by citizens of the Republic of Croatia to return to their
1 property and use that property. It says 'when they return.' I am not
2 sure that this will be sufficient for proper procedure in accordance with
3 humanitarian regulations, because, from my experience, from the
4 discussion at the last session of the government, I do not know whether
5 we have ultimately determined the procedure of how those who wished to
6 return are to do so."
7 MS. GUSTAFSON: And if we could go to the next page in the B/C/S.
8 Q. He goes on:
9 "In fact, from the information which I have from the press where
10 it is said, I cannot be 100 per cent sure of this, but there is an good
11 proportion of our citizens who have left the now liberated areas, who
12 have registered at our office in Belgrade and who would like to return to
13 our and their homeland through humanitarian organisations. I mean, I
14 shall be brief, that one has to determine a return procedure, who they
15 are to be registered with, who will do the processing in the
16 Republic of Croatia so that they can claim their right under Article 10
17 of this decree, so that they can return, because essentially, then, the
18 return procedure, so they would be able to return, because otherwise it
19 would happen that they want to return but have not returned" --
20 MS. GUSTAFSON: If we could turn the page in English.
21 "... within a period of 30 days or whatever dead-line is
22 decided. And therefore the actual act of returning would be qualified
23 for them as it is in the decree, and so they have not come to their
24 homeland and have not been able to regain their property."
25 Q. Now, you gave evidence that it became apparent at some stage that
1 the 30-day dead-line was not realistic. Did you know that Mr. Pavlovic
2 actually expressed his concern to the government that the deadlines in
3 the decree, coupled with the fact that there were no procedures for Serbs
4 to return, would mean that Serbs who wanted to return to Croatia to
5 repossess their property within the dead-line would not be able to do
6 this and that this posed a dilemma?
7 JUDGE ORIE: Mr. Misetic.
8 MR. MISETIC: Yes, Mr. President, if we could just ask for a
9 context of Mr. Pavlovic's position given that it says that he has
10 expressed concern. I noted that the first two paragraphs of
11 Mr. Pavlovic's position weren't presented to the witness. This is at
12 page 17 of this document.
13 MS. GUSTAFSON: Well, he started by saying he wanted to point to
14 a dilemma.
15 MR. MISETIC: That's not how he started, Mr. President.
16 MS. GUSTAFSON: Well, the passage that I read, that's how he
18 "If I might be permitted to underline a small dilemma. It's a
19 dilemma, concern; I don't care."
20 We can take out the word --
21 JUDGE ORIE: Mr. Misetic, is there any specific portion you would
22 like to suggest to Ms. Gustafson then she can decide whether or not to
23 give this context. If not, of course, although have you not examined the
24 witness, I would grant an opportunity to provide the context you consider
25 the most relevant, if Ms. Gustafson would not follow any of your
2 MR. MISETIC: Right at the beginning of his presentation under
3 his name, the first full paragraph, and the sentence -- the first
4 sentence of the second paragraph.
5 JUDGE ORIE: Ms. Gustafson, if would you read them and make up
6 your mind whether or not you provide the context or leave it, rather, to
7 Mr. Misetic at a later stage.
8 MS. GUSTAFSON: I don't think it answers the context, but I'm
9 happy to read it out just to save time.
10 In that sentence, he says:
11 "It is difficult not to agree that this decree needs to be issued
12 for the sake of the comprehensive protection of property in the state of
13 Croatia and that it must be supported in any event because of, above all,
14 it is placed beneath the supervision and protection of the state organs
15 just as is put in the decree."
16 Q. Now, Ms. Bagic, my question was about the dilemma Mr. Pavlovic
17 raised in respect of the dead-line and the fact that the 30-day dead-line
18 coupled with the fact that there were no procedures for return of Serbs
19 at the time meant that -- that Serbs would -- who wanted to return within
20 the dead-line to repossess their property would not be able to do so.
21 Were you aware that this was pointed out to the government by a
22 government member at the time the decree was passed?
23 A. No, I was not aware of his statement.
24 MS. GUSTAFSON: And if we could just stay on page 18 of the
25 English and go to page 24 in the B/C/S.
1 Q. This is the prime minister speaking now. At the end of the
2 second paragraph and the second half of that paragraph, he says:
3 "I think that here for the sake of the public it is necessary to
4 stress that if anyone received that basic draft of the decree and law
5 that Article 11 should be struck out, where in one draft it talked about
6 possible separate possibilities of transfer to ownership, because we have
7 concluded that it is necessary to define and resolve that very sensitive
8 question of ownership by a completely new law."
9 Now, again, here he is referring to the fact that the draft of
10 the decree was first presented to the government provided for a transfer
11 of ownership, right?
12 A. It is possible that the text of the decree in one of the first
13 versions included something like that or that it included certain
15 It is also possible that once the text of the decree was sent
16 from the Ministry of Justice to the government of the Republic of
17 Croatia, that the working bodies of the government, the coordination
18 bodies or the members of the government itself, added something to the
19 text, because the government could add certain things at its meetings or
20 through the Working Groups. What is clear is that the text which is
21 adopted and which we proposed as the experts who were members of the
22 Working Group did not envisage the transfer of ownership.
23 Q. So you can't remember whether the decree that the Working Group
24 presented to Mr. Separovic to take to the government contained a
25 provision for the transfer of ownership; but you can remember that what
1 the experts of the Working Group proposed was that it did not envisage a
2 transfer of ownership. Is that right?
3 A. That's right. I said that we cannot exclude the possibility that
4 within the Working Group this was not discussed. Maybe somebody said
5 that we should see if there was such a constitutional possibility and
6 also that as lawyers we were supposed to see if there were constitutional
7 possibilities for such transfer of ownership or not. I said a few words
8 about that yesterday, what the constitutional provisions are. The
9 constitution does envisage this possibility with compensation, depending
10 on the market value. Also, exceptionally, ownership can be limited but
11 only --
12 Q. Again, if I can just ask to you focus on the specific questions I
13 ask you.
14 JUDGE ORIE: Ms. Gustafson, the second sentence of the answer
15 reads at this moment:
16 "I said that we cannot exclude the possibility that within the
17 Working Group this was not discussed."
18 Which -- is that the same as that you cannot exclude for the
19 possibility that it was discussed?
20 THE WITNESS: [Interpretation] That's correct, Your Honour.
21 Namely, we are talking about the passing of a law.
22 JUDGE ORIE: Now, I think yesterday your testimony that it was
23 never discussed. But I now do understand that - and the English is a bit
24 ambiguous with a double negative - but that you cannot exclude for the
25 possibility that it was discussed.
1 Please proceed.
2 MS. GUSTAFSON: Thank you, Your Honour.
3 Q. And, Ms. Bagic, you also testified earlier today that you thought
4 it was Mr. Separovic who informed you that a decree on the temporary
5 takeover of property was to be issued, and you thought that that would
6 have been in the second half of August. Now, the Chamber has received
7 evidence that a decision to issue a government decree on the temporary
8 transfer of property with a one-month dead-line for return and
9 repossession was made by President Tudjman at a meeting he held on the
10 11th of August, 1995, with members of the leadership, including
11 Mr. Radic, Mr. Susak, Mr. Granic, Mr. Valentic, among others, and this is
12 Exhibit P462.
13 Do you know anything about this meeting or the fact that a
14 decision on a decree was being made at this level?
15 A. No, I do not know anything about this meeting.
16 Q. And the views of these various participants at this meeting about
17 the purpose of the property decree and property law were discussed at
18 that meeting. I take it you don't know what those views were, views
19 expressed by Mr. Valentic, Mr. Radic, Mr. Granic, President Tudjman.
20 Do you know anything about that?
21 A. I'm sorry, you're talking about the meeting that you just
22 mentioned that was held at the office of the President of the
23 Republic of Croatia?
24 Q. Yes, on the 11th of August.
25 A. No. As I said, I do not know anything about that meeting, and,
1 therefore, I also do not know anything about the contents of the meeting.
2 Q. Now I'd like to move on to a slightly different topic, which is
3 the Law on Areas of Special State Concern that you mention in your
5 MS. GUSTAFSON: And if we could have 65 ter 3173.
6 And, Your Honour, if I could also tender 65 ter 3D00959, which
7 was the open session of the government on the 31st of August.
8 JUDGE ORIE: Yes.
9 MR. MIKULICIC: No objections, Your Honour.
10 JUDGE ORIE: No objections.
11 Mr. Registrar.
12 THE REGISTRAR: Your Honours, this document becomes
13 Exhibit P2697. Thank you.
14 JUDGE ORIE: And is admitted into evidence.
15 Please proceed.
16 MS. GUSTAFSON: Thank you.
17 Q. Now, in your statement at paragraph 8, you said:
18 "The Law on Areas for Special State Care and amendments to this
19 law from 2002, Articles 12 and 14, prescribe the time-frames for
20 completing the process of restoring occupancy of property which had been
21 acquired temporarily, pursuant to Law on Temporary Acquisition and
22 Management and the Law on Areas for Special State Care."
23 I take it that you're familiar with this law. Is that right?
24 A. Yes. I am familiar with that law; that is correct.
25 Q. And this law was promulgated on the 27th of May, 1996.
1 MS. GUSTAFSON: And if we could look at page 2 of the English and
2 page 1 of the B/C/S.
3 Q. And this is Article 2 of the law which states that:
4 "The areas of special state concern shall be determined with the
5 aim of eliminating consequences of the war, for the faster return of
6 displaced persons and refugees, to give impetus to the demographic and
7 economic development, and to achieve as equal development of all areas
8 of ... Croatia as possible."
9 And if we go down to Article 3 of the law, it divides the areas
10 of special state concern into two groups, both of which are areas that
11 were formally occupied. The first group consisting of sparsely populated
12 border areas; and the second group, all other formally occupied
14 And it goes on to set out in detail the municipalities and
15 settlements that come within those areas.
16 MS. GUSTAFSON: And if we could go to page 7 in the English and
17 page 4 in the B/C/S, to part II of this law, which is titled:
18 "Incentive measures for settlement and development of the areas
19 of special state concern."
20 Q. And Article 7(1) says that the Republic of Croatia shall
21 stimulate the stay and settling of the population in these [sic] areas.
22 And Article 7, paragraph 2, sets out the following categories of
23 population which shall be stimulated in the areas of special state
24 concern. And those categories are then listed, and it includes certain
25 categories of citizens of Croatia, Croatian emigres from abroad, and over
1 the page in the English, Croats expelled from other areas and decide to
2 settle in the Republic of Croatia.
3 And then the last paragraph says that:
4 "These persons shall be considered settlers for the purpose of
5 the law."
6 And if we could look at Article 8, which is there. Article 8(1)
7 says that the ministry of development and reconstruction will issue
8 invitations at least twice a year for the settling of areas of special
9 state concern.
10 Article 8(3) says that the settlers will be given the use of an
11 apartment or family house.
12 Article 8(5) says that the real estate referred to in paragraph 3
13 shall be allocated for usage pursuant to the decision of the ministry.
14 And if we go over to the next page in English:
15 "And after ten years of settler's continuous occupation of an
16 apartment or a family house in the area of special state concern, it
17 shall become the settler's property."
18 MS. GUSTAFSON: And if we could go down the page in the English
19 and in the B/C/S to Article 10.
20 Q. Which sets out the real estate categories of real estate that
21 will be given to the settlers for usage as referred to in Article 8,
22 paragraph 3.
23 And if we go down to the third -- sorry, to sub (2) which is
24 actually mistakenly numbered 3 in the English, it says:
25 "Family houses, that is, the pertinent land in case of a farmer's
1 household or apartments whose owners have abandoned and do not use them
2 in terms of the provisions of the Law on the Temporary Takeover and
3 Administration of Specified Property ..." and it says "... shall be
4 allocated also to the heirs at the proposal of the Ministry and in
5 accordance with the provisions of the said law."
6 And if we turn the page in the English and in the B/C/S as well,
7 it says:
8 "If during the time of its usage the real estate referred to in
9 paragraph 2 of this Article is returned into owner's possession and
10 usage, the ministry shall be obliged to provide the settler with some
11 other adequate apartment or family house, if possible ..."
12 And then the law goes on to describe various tax and salary
13 benefits for those who settle in these areas of special state concern.
14 Now, just to go back to what you said in your statement in
15 paragraph 8, in fact, the original law that was passed in 1996 did not
16 have any time-frames for restoring taken-over property, but it did allow
17 property that had been taken over and given to settlers for their use,
18 that after ten years of occupation, those users would be granted
19 ownership of that property. Is that right?
20 A. Yes, that is right. Namely, the Law on Areas of Special State
21 Concern in 1996 in these provisions which you read out, especially the
22 provisions of Article 8, allows that the settlers be given for use the
23 property which was covered by the Law on Temporary Takeover and
24 Management of Property. I referred to time-frames which were in the
25 amendments to the Law on Areas of Special State Concern from the
1 year 2000, firstly, and then from 2002, and which linked up with the
2 later adopted Programme for the Return of Displaced Persons and Refugees
3 and the time frames for repossession that were included there.
4 Q. And you may remember from the discussion of the decree at the
5 31st of August, 1995, closed session, various comments that the ownership
6 of the taken-over property would be dealt with through a separate law and
7 than the normal time-period to be -- allowing ownership to be gained
8 through possession would be shortened. And hereby providing a time-limit
9 of ten years, this cut in half the normal 20-year period for adverse
10 possession under Croatian law. Is that right?
11 A. In this Law on Areas of Special State Care, other properties were
12 encompassed, not only the properties dealt with by the Law on
13 Temporary Takeover and Management. This stems from paragraph 3 of
14 Article 9, which prescribes that if a -- the owner returns and
15 repossesses his property for use, which means that it was returned to
16 him, the people living there are entitled to be given other residential
17 facility by the state. This did not refer, this possibility for
18 acquiring ownership did not refer to the property under the Law of
19 Temporary Takeover. I think that in the later amendments to this law
20 adopted in 2002 it was not possible any longer to give this kind of
21 property to settlers.
22 Q. Ms. Bagic, the -- we discussed already the possibilities for
23 repossession that were in place at this time for Serbs and I am not going
24 to go into that. But the law as it was passed in 1996, the Law on the
25 Areas of Special State Concern, did, in fact, provide for Croats who had
1 been given temporary use of Serb houses to be given ownership of those
2 houses, taken over under the temporary takeover law after ten years, and
3 that was half the normal time-period for adverse possession, right?
4 A. The law allows the possibility for persons, regardless of their
5 ethnicity, and you could read for yourself which particular citizens this
6 referred to --
7 JUDGE ORIE: [Previous translation continues] ... why not answer
8 the question? Is the usual term for adverse possession 20 years, and do
9 we find in this law a reduction by half of that time? That's the
11 THE WITNESS: [Interpretation] If you allow me, Your Honours, this
12 was not about acquiring ownership rights through adverse possession.
13 So if I enter somebody else's possession in good faith, I can
14 acquire ownership but proving that before the court.
15 Under the law of the areas of state care, certain individuals
16 were given a property for use. After ten years, on that basis, they
17 could acquire ownership. That is what this provision in the law on areas
18 of special state concern reads.
19 JUDGE ORIE: Yes. And in terms of adverse possession, would then
20 the term be 20 years?
21 THE WITNESS: [Interpretation] Yes. The term for adverse
22 possession under the property law were -- was not changed.
23 If I may, I would just like to add something.
24 JUDGE ORIE: [Previous translation continues] ... I will allow you
25 to add something. But could you, please, in the follow-up of your
1 examination, start with answering the question and only then give any
2 additional comments you consider of such importance that the Chamber
3 should know.
4 Please make your comment.
5 THE WITNESS: [Interpretation] Thank you.
6 I wanted to clarify something. Precisely due to possible
7 different interpretation of this law, the amendments to this law adopted
8 in 2000 included a provision which envisaged that the real estate that
9 was given for use under the provisions of this law, and I'm referring to
10 the Law on Areas of State Care, and the Law on the Takeover of Property
11 and Management, no ownership rights can be acquired through adverse
13 JUDGE ORIE: Could I ask a clarification of one of your previous
15 You said:
16 "After ten years on that basis, they could acquire ownership."
17 That is what this area reads.
18 I read the Article 8:
19 "It shall become the settler's property," as kind of an almost
20 automatic consequence. Which seems not to be exactly the same as that
21 you could acquire but that you would acquire ownership, because it's a
22 "shall" disposition, but that's the English translation.
23 THE WITNESS: [Interpretation] Yes. But what I wanted to
24 underline, on that basis, was that those individuals who were given these
25 properties had to have a decision issued by a competent body granting
1 them the use of a certain real estate.
2 JUDGE ORIE: Thank you.
3 Please proceed, Ms. Gustafson.
4 MS. GUSTAFSON: Thank you -- thank you, Your Honour.
5 Q. Ms. Bagic, you keep referring to the amendments, and I will -- we
6 will look at the 2000 amendments, so I'd like to you put those aside for
7 the moment and focus on this 1996 law. And because I'm not sure I got a
8 very clear answer to this, I'm going to ask again that the properties
9 given to settlers for their use under this law and in which they could
10 acquire ownership after ten years of occupancy included properties taken
11 over under the temporary takeover law, right?
12 A. In my understanding an interpretation of this law, the properties
13 encompassed by the Law on the Temporary Takeover and Management of
14 Properties could not become the property to -- of the persons to whom it
15 was allocated for use under this law.
16 Q. And what specific provisions are you relying on when you draw
17 that conclusion?
18 A. I rely my conclusions on the fact that this was the property
19 owned by other individuals. When we talk about the Law on Temporary
20 Takeover, that was the property of natural persons. Under this law, it
21 could have been given for temporary use, which was done. However, this
22 law also provides for a possibility for giving this property for
23 temporary use to settlers in the areas covered by the Law on State Care.
24 I also base my conclusion on paragraph 3 which speaks about the
25 return of owners, and it stipulates that such returnees can claim their
1 ownership or repossession. It says that anyone can -- stripped of their
2 ownership, that can be done only according to market value of the
3 property. That was in line with the constitution of the
4 Republic of Croatia.
5 JUDGE ORIE: Ms. Bagic, what seems to be the question is that
6 Article 8, paragraph 5, talking about acquiring ownership after an
7 occupancy of ten years, does not make any distinction in relation to
8 where that property comes from, whether it was privately owned
9 previously, whether it belonged to a company. It just says, Once you've
10 given the usage, once the property has been allocated for usage pursuant
11 to the decision of the ministry, then after ten years, the settler shall
12 obtain ownership.
13 Now, you're telling us that if the owner has, meanwhile,
14 requested repossession, then that may be different. Then, of course,
15 there will be no uninterpreted usage of ten years at least, once it has
16 been made effective. But where in this law do we find that the user,
17 that the settler, who has used the property for ten years will not become
18 the owner if it is property which was put under the state administration
19 as a result of the Law on the Temporary Takeover?
20 Could you tell us where we find that in this law? Because that
21 apparently is your answer to Ms. Gustafson's question.
22 THE WITNESS: [Interpretation] This, indeed, cannot be found in
23 this law, because it is not stated as such explicitly in the law.
24 JUDGE ORIE: Now, something else is stated explicitly, that is,
25 that after ten years of use, that you shall become the settler's
1 property. That's what the law says rather explicit.
2 What's -- do you have any case law or is there any other source
3 which you can invoke in order to contradict what clearly seems to be the
4 text of this piece of legislation?
5 THE WITNESS: [Interpretation] Yes, I can. I already mentioned
6 something in that respect.
7 First of all, the constitution of the Republic of Croatia, the
8 Law on Property and other substantive rights, and the Law on the
9 Temporary Takeover and management of properties followed by amendments to
10 the Law on Special areas -- of state care.
11 Why am I saying this? Because the law on special areas of state
12 care covered much more properties in comparison to those encompassed by
13 the Law on Temporary Takeover and Management. It included the
14 state-owned property; that is to say, that used to be socially owned --
15 JUDGE ORIE: Yes. Now you are repeating part of your previous
16 answer, that this law covers other property as well. But, I just pointed
17 the text of this law, which does not make any distinction in this
19 Now, you invoked the constitution. Is this to say that the
20 unlimited language of Article 8 means that this language or this text
21 violates the constitution?
22 THE WITNESS: [Interpretation] No. Because it included other
23 types of properties that was not owned by physical persons.
24 JUDGE ORIE: [Previous translation continues] ...
25 THE WITNESS: [Interpretation] And besides that, I already said --
1 JUDGE ORIE: What you say is to some extent in other respects it
2 may not be unconstitutional. I want to focus on property allocated for
3 use to settlers which was private property which was covered by the
4 Law on Temporary Takeover. I want to focus on that exclusively. As we
5 see, Article 8 makes no distinction and apparently does not exclude those
6 properties from becoming the settler's property after ten years of use.
7 Now, you say, It's the constitution which contradicts, that this
8 is how we have to read this Article. Does it mean that, in respect of
9 this type of property, that Article 8, not making any distinctions, is,
10 in this respect, unconstitutional?
11 THE WITNESS: [Interpretation] This, Your Honours, might be
12 perceived in that way. However, that would be our perception of that
13 provision, because the constitutionality of this provision was not
14 disputed by the constitutional court and therefore the court did not
15 abolish it.
16 JUDGE ORIE: So -- Mr. Misetic.
17 MR. MISETIC: Mr. President, I don't know how to proceed because
18 I do want to draw the Chamber's attention to something in the law, but I
19 don't know if it's appropriate to do it in front of the witness, so ...
20 JUDGE ORIE: I think it would be inappropriate to do it in the
21 presence of the witness.
22 We are close to a break. Perhaps once we take the break that --
23 That's exactly your answer, where you invoked the constitution
24 as -- of guidance, how to read this. And that I asked you whether there
25 is any case law and you say this is, however, constitutionality or
1 unconstitutionality is not to be found in any decision of the
2 constitutional court.
3 Now, the other reason why we had not to read Article 8 as I did,
4 the Law on Property and other substantive rights, you said, was another
5 reason why we could not read that Article 8 would also give ownership.
6 It would give the property of privately owned property to settlers who
7 had used it for more than ten years.
8 Could you give us any specific part of that law which would be of
9 guidance in interpreting Article 8, paragraph 5?
10 THE WITNESS: [Interpretation] Yes, I can. I'm referring to the
11 general provisions of this law, stipulating the inalienability of the
12 property law, and it provides only for compensation according to the
13 market value of the property, in case of seizure.
14 JUDGE ORIE: Yes. You say that that's a provision which almost
15 prohibits what was said here.
16 We have looked at the Law on the Temporary Takeover and
18 Thank you for those answers.
19 Ms. Gustafson, I interrupted. We're close to where we need a
20 break. Mr. Misetic would like to draw our attention to a specific
21 portion of this law. Would you -- nevertheless, would you want to find a
22 more appropriate moment, or would this be an appropriate moment for a
24 MS. GUSTAFSON: This is an appropriate moment, Your Honour. And
25 if I could also get an exhibit number for this law before we break, that
1 would be helpful. Thank you.
2 JUDGE ORIE: Yes.
3 MR. MIKULICIC: No objections, Your Honour.
4 JUDGE ORIE: No objection.
5 Mr. Registrar.
6 THE REGISTRAR: Your Honours, this document becomes
7 Exhibit P2698. Thank you.
8 JUDGE ORIE: P2698 is admitted into evidence.
9 Ms. Bagic, the break starts already for you. We'd like to see
10 you back in a little bit over 20 minutes from now.
11 [The witness stands down]
12 JUDGE ORIE: Mr. Misetic, it's new evidence, so therefore we
13 might not be that familiar yet with it.
14 MR. MISETIC: And I might not be, myself, Mr. President.
15 But Article 10 of the law --
16 JUDGE ORIE: Article 10, let me just have a look.
17 MR. MISETIC: And I note right at the outset that the original of
18 Article 10 is different in its numbering from the translation.
19 JUDGE ORIE: Let me just find it first.
20 I have Article 10 there front of me, which starts with the real
21 estate given to the settlers for their --
22 MR. MISETIC: That's correct.
23 JUDGE ORIE: Yes.
24 MR. MISETIC: And then you will note in the English there are
25 three -- four subparagraphs, sorry.
1 JUDGE ORIE: Let me just see.
2 Yes, although we have a bit of an odd numbering. From the
3 English version, Article 10 starts with a one between brackets; then we
4 have 1, 2, 3; and then on the next page in e-court, page 10 out of 23, we
5 have a 3 in brackets.
6 MR. MISETIC: Yes. And I believe in the original, if you look,
7 and this will be --
8 JUDGE ORIE: If would you give me an opportunity to look at it
9 for a second.
10 THE INTERPRETER: Interpreters would be grateful if we could have
11 the relevant Article on the screen. Thank you very much.
12 JUDGE ORIE: Yes, could we have Article 10 on the screen.
13 MR. MISETIC: One page prior in the original and one page prior
14 in the English.
15 JUDGE ORIE: Yes. In the original, apparently, Article 10 starts
16 with a one between brackets then two paragraphs numbered 1 and 2. Then
17 it follows with a 2 between brackets and then there is an third between
18 brackets, paragraph on the next page.
19 MR. MISETIC: Yes, Mr. President.
20 JUDGE ORIE: So therefore the -- at least, in the translation,
21 the numbering is confusing; and -- but I take it that you didn't only
22 want to take us to the numbering but also to the substance.
23 MR. MISETIC: Yes, Mr. President.
24 Now, if we look at Article 10, it describes what real estate will
25 be given to settlers, referred to in Article 8, paragraph 3. And then
1 in -- numbered -- in the original bracketed number 2, which is, in this
2 version of the English translation, number 3, talks about family
3 houses --
4 JUDGE ORIE: Yes.
5 MR. MISETIC: -- et cetera under the Law on the Temporary
6 Takeover. Then if we go to the last paragraph of this Article --
7 If we could turn the page, please, in both Croatian and English.
8 JUDGE ORIE: Yes. I read this to be that if the property is
9 allocated for usage to a settler, that if during the time of its usage
10 that the property is returned into the owner's possession that then the
11 minister is under an obligation to find alternative accommodation for the
13 MR. MISETIC: Yes, but besides that. Because of the -- well,
14 there's two issues I wanted to raise. One is, I think, due to the
15 misnumbering in the English, in the original, this paragraph refers to
16 property from the temporary takeover law. And then the second issue it
17 was unclear to me whether usage only means within a ten-year period or it
18 could mean after that. So I don't know when the witness was referring to
19 within the provisions of the law. It was contemplated that people would
20 be getting this property back. This may have been something that she may
21 have wished to comment on.
22 JUDGE ORIE: Well, the whole system of the Law on the Temporary
23 Takeover and reclaiming the possession and usage of property seems to be
24 based on a continued existence of ownership of the original owner.
25 Whereas, if, under this law, after ten years of usage, you obtain
1 ownership, then I, at least, have some difficulties in understanding how
2 that could be dealt with by just returning them into the owner's
3 possession and usage where he apparently has lost his ownership unless
4 you would accept a kind of dual ownership. But it's -- first of all, I
5 think it was for was the witness to explain that, and your possible
6 explanation, at least on my mind, raises more questions than it resolves.
7 MR. MISETIC: Well, if I could just explain my position,
8 Mr. President.
9 First just that the witness didn't have the law in front of her
10 at the time when she was being asked to locate within the law what
11 provisions she may have been relying on in explaining that return of the
12 property was contemplated within the law. So that's -- that's the first
14 The second issue in the overall context, just to address the
15 point that you were raising, is that it's not confiscation of property
16 if, A, the person retains ownership, but, B, there's also the second
17 portion which is for adequate compensation.
18 So in terms of what was put to this witness, if, after ten years
19 somebody would get ownership of the property through, it wouldn't be, in
20 my view, adverse possession but a form of eminent domain, then if that
21 original owner received compensation, then it still wouldn't be
22 confiscation of property. But that's just to address the remark that you
23 made, Mr. President.
24 JUDGE ORIE: Yes. I understand that that's your interpretation,
25 your view on the matter.
1 Ms. Gustafson, since it was to some extent argumentative, would
2 you like to add anything at this moment?
3 MS. GUSTAFSON: No, Your Honour, except to say that we will
4 request a revision of the translation to amend the numbering of this
6 JUDGE ORIE: Yes. That at least avoids quite a bit of confusion.
7 We will have a break, and we will resume at five minutes to 1.00.
8 --- Recess taken at 12.32 p.m.
9 [The witness takes the stand]
10 --- On resuming at 12.59 p.m.
11 JUDGE ORIE: Ms. Gustafson, my first question is whether you're
12 ready to proceed; second question is how much time you would still think
13 you would need.
14 MS. GUSTAFSON: I would like to finish in this session. I'm not
15 sure, in light of how long it has taken to get through some topics so
16 far, if I can manage. But that is my goal.
17 JUDGE ORIE: Yes.
18 Ms. Bagic, could I invite you to focus your answers on the
19 questions that are put to you as much as possible.
20 Ms. Gustafson, please proceed.
21 MS. GUSTAFSON: Thank you. Could we have 65 ter 689 on the
22 screen, please.
23 Q. Ms. Bagic, the document that is about to come up on the screen
24 are the 2000 amendments to the Law on Areas of Special State Concern that
25 you have mentioned several times.
1 [Trial Chamber and Registrar confer]
2 JUDGE ORIE: I do understand that there are some technical
3 difficulties which are expected to be fixed soon.
4 MS. GUSTAFSON: There we go.
5 Q. Now, Ms. Bagic, can you see from the decision proclaiming this
6 law into force that it was -- that this amendment was made after
7 President Tudjman had died and Mr. Mesic became president.
8 And at the bottom of the English we see Article 1 of this
9 amendment. And the first amendment is that Article 2 of the 1996 law is
10 changed, and the wording "displaced persons and refugees," is replaced
11 with the wording "population which inhabited those areas before the
12 homeland war."
13 So whereas the stated aims of defining the areas of special state
14 concern in 1996 was included the faster return of displaced persons and
15 refugees with this 2000 amendment, the aim was changed to the faster
16 return of population which inhabited those areas before the homeland war.
17 MS. GUSTAFSON: And if we could go to page 5 of the English and
18 page 3 of the B/C/S, to Article 5.
19 Q. This Article erases Articles 6 and 7 of the 1996 law, and you may
20 recall that Article 7 of that law set out the categories of populations
21 which were subject to the measures to stimulate stay and settling,
22 including Croatian emigres and Serbian and Bosnian Serb Croats.
23 MS. GUSTAFSON: And if we look at Article 6 of this law, this
24 amends Article 8.
25 And if we turn the page in the English, Article 8(1).
1 Q. Which used to state that the ministry of development and
2 reconstruction would issue invitations for settling the areas of special
3 state concern. Now Article 8 -- 8(1) states that Croatia will promote
4 the return and stay of the population which lived in areas of special
5 state concern before the homeland war as well as the settling of Croatian
6 citizens who can contribute to economic and social development?
7 MS. GUSTAFSON: And if we go to the next page in the English and
8 page 4 of the B/C/S, to Article 7.
9 Q. This amends Article 10 of the 1996 law, which you'll recall was
10 the provisions setting out the categories of property which could be
11 allocated to settlers. And you can see that it removes the category of
12 houses that had been taken over under the temporary takeover law.
13 MS. GUSTAFSON: And if we go to page 8 in the English, the next
14 page in the English and in the B/C/S to Article 13.
15 Q. And this provision requires the ministry to repeal decisions on
16 use of property under this law "which pertain to the property owned by
17 natural persons."
18 And that would be a reference to property that had been taken
19 over under the temporary takeover law, right?
20 A. Yes. Yes, but also, in accordance to this law, the Law on Areas
21 of Special State Concern.
22 Q. And on the next page in the English, Article 14, this states that
23 properties allocated for temporary use to other persons pursuant to the
24 provisions of this law "shall be returned into the owner's possession
25 within six months ... of the submission of a request by [sic] the owner
1 of the property."
2 And then it sets out certain procedures.
3 And if we go to the next page in the English, Article 16 states
4 at the top of that page:
5 "The right of acquiring ownership over another's property through
6 possession shall not be obtained over the real estate unit owned by
7 natural persons allocated for use under this law, the Law on Temporary
8 Takeover and Administration of Specified Property ... and the Law on the
9 Lease of Apartments in the liberated territory [sic]."
10 Now, this amendment in 2000, this was the first time that that
11 this law, the Law on Areas of Special State Concern, provided mechanisms
12 for return of property temporarily taken over under the temporary
13 takeover law. I'm not talking about amendments to the temporary takeover
14 law, I'm talking about this law, the Law on Areas of Special State
16 A. If I understood properly, you're referring to the amendments to
17 the Law on Areas of Special State Concern. It is correct that these
18 amends to the law - there was another set of amendments later in 2002 -
19 but these were the amendments that had to do with regulating the issue of
20 returning for possession the property that was allocated for use in
21 accordance with the Law on Areas of Special State Concern.
22 Q. And when I was asking you before about settlers who had been
23 granted property that this been taken over under the temporary takeover
24 law, having -- being granted ownership of that property after ten years,
25 in accordance with the 1996 law, this 2000 amendment changed that by
1 stating that those settlers could not acquire ownership of property taken
2 over under the temporary takeover law through possession. Is that right?
3 A. Yes, this had to do with adverse possession and this is the
4 provision that we can see on the screen. It is a provision of Article 16
5 that the right of acquiring ownership could not exist only through
6 adverse possession.
7 I said earlier that adverse possession existed when someone would
8 be using property owned by somebody else without any sort of regulation
9 or act by which this was allocated for use, but here it's explicitly
10 provided, though that followed from the basic provisions of the basic Law
11 on Property. That's the Law on Property and other material rights. But
12 as for this law it here referred to the property of persons who had
13 abandoned it and that was used -- allocated for use to others, then the
14 procedure was specified here in the provisions of Article 16.
15 Q. And these amendments to this law in particular, removing property
16 that had been temporarily taken over under the temporary takeover law
17 from the provisions of this law, and introducing the concept that the law
18 would aim at the faster return of population that inhabited those areas
19 before the homeland war, and would encourage the return and stay of the
20 population which lived in those areas before the homeland war, those
21 changes reflected a policy change of the Croatian authorities; whereas,
22 previously, the authorities had focussed on encouraging Croats to move
23 into the areas affected by Operations Storm and Flash. As this amendment
24 reflects, at this time, they were also taking steps to promote the -- or
25 facilitate the return of Serbs who used to live in those areas. Is that
2 A. Yes. But please allow me to add something as well.
3 One of the purposes of the Law on Areas of Special State Concern
4 from 1996 was, inter alia, the settlement of Croats. That is correct,
5 and this provision does not exist in the amendment from the year 2000.
6 However, simultaneously, while the Law on Areas of Special State Concern
7 was in force, and as it referred to the temporary takeover and management
8 of certain property, in the meantime the Programme for the Return of
9 Displaced Persons, Expelled Persons, and Refugees was also adopted, and
10 it referred to the procedures for repossessing property that was covered
11 by the Law on the Temporary Takeover and Management of certain property.
12 And this programme, as is well known, was adopted in 1998.
13 Q. Thank you. We're actually going to look at that programme
14 briefly in a moment.
15 MS. GUSTAFSON: If I could tendered this document, 65 ter 689,
17 MR. MIKULICIC: No objections.
18 JUDGE ORIE: Mr. Registrar.
19 THE REGISTRAR: Your Honours, this document becomes
20 Exhibit P2699. Thank you.
21 JUDGE ORIE: P2699 is admitted into evidence.
22 Please proceed.
23 MS. GUSTAFSON: Thank you.
24 Q. Ms. Bagic, you looked at the return -- you were shown the return
25 programme yesterday, and we can bring it up if you -- if we need to. But
1 I just wanted to ask you this:
2 That programme, which is Exhibit D428, created a commission for
3 the implementation of the return programme, and it states that the deputy
4 minister of justice was to be a member of that commission. And you were,
5 at the time, the deputy minister of justice, and so my question is: Were
6 you a member of that commission?
7 A. Yes, I was the deputy minister of justice, and, on the basis of
8 my function, I was a member of this commission.
9 MS. GUSTAFSON: If we could look at D420, please.
10 Q. The document that is about to come up is a report from the year
11 2000 on the implementation of the Programme of Return by the commission
12 for the implementation for the return programme.
13 Do you remember being involved, as a member of that commission,
14 in drafting a report of this nature in 2000?
15 A. I cannot remember that I directly participated in that, because
16 the burden of this issue of the refugees and expelled persons and their
17 return was with the ministry of the development and reconstruction and
18 the administration for refugees and expelled persons. But as for what
19 was within the remit of work of the Ministry of Justice and possible
20 objections to this report, it was probably submitted to me so that I
21 could provide my opinions, suggestions, and possible objections.
22 MS. GUSTAFSON: Okay. If we could go to page 20 of the English
23 and page 18 of the B/C/S.
24 Q. And, at the top of that page, the title is:
25 "Restitution of property, housing commissions."
1 And it says:
2 "The main problem in the implementation of the Programme of
3 Return is the restitution of property, i.e., work of the
4 Housing Commission [sic] in charge of resolving restitution of property,
5 whose owners are mostly refugees, currently in FRY and BiH, which is a
6 consequence of the implementation of the Law on Temporary Sequester of
7 Private Property in the Republic of Croatia."
8 Do you recall this conclusion by the commission in the year 2000
9 that even two years after the Law on the Temporary Takeover had been
10 repealed that the legacy of that law remained -- was the main problem in
11 implementing the Programme of Return?
12 A. I cannot remember the facts behind this conclusion at this point
13 in time. But it is a fact that the -- there were issues with the
14 restitution of property. It was a complex issue, and that was why there
15 were various solutions in the legislation. They were changed over time,
16 and this issue remained important after the year 2000. One of the
17 reasons it was also to change the Law on Areas of Special State Concern
18 in 2002. And the work of the Housing Commissions was especially
19 important because it turned out that the Housing Commissions, in spite of
20 the original purpose, should be the main stakeholders, that they should
21 be mainly in charge of implementing all this. They had to list the
22 property and do everything else. And for a number of reasons, they were
23 very often not able or capable to implement all that they were expected
24 to do.
25 MS. GUSTAFSON: And if we could go to page 28 in the English and
1 page 25 in the B/C/S.
2 Q. And in the middle of the page in the English there's a section
3 called: Amendments to the Law on Areas of Special State Concern. Which
4 is around the middle of the page in the B/C/S.
5 And the second half of this introductory paragraph says:
6 "Amendments to this law are under way, primarily related to the
7 elimination of discriminatory provisions in the part of the law referring
8 to the allocation of property to settlers, first of all, houses,
9 according to the Law on the Temporary Takeover and Management of
10 Specified Property, which has been invalidated."
11 Now, as the deputy minister of justice, were you involved in this
12 aspect of the report or the work of the commission; namely, eliminating
13 discriminatory provisions in the Law on Areas of Special State Concern?
14 A. I'm sorry, from which year and from what date is this report?
15 From the year 2000, but could you please show the first page so that we
16 could see the date.
17 Q. It says 2000, and I'm not sure there is a more specific date.
18 I'll check.
19 A. All right.
20 Q. There doesn't appear to be.
21 A. [In English] Okay.
22 [Interpretation] I'm asking that because my duty as the deputy
23 justice minister was terminated in January 2000 so that until that point
24 in time, I participated in the work of this commission as the deputy
25 justice minister, and I participated, as I said, in the segments that had
1 to do with the remit of work of the Ministry of Justice.
2 After that --
3 JUDGE ORIE: It seems that the cover page says April 2000,
4 Ms. Gustafson.
5 MS. GUSTAFSON: I apologise; it does. My apologies.
6 JUDGE ORIE: Which might not be of great impact where the witness
7 said that she finished her job as a deputy minister of justice in
8 January 2000.
9 But the report is of April 2000.
10 THE WITNESS: [Interpretation] Yes. At the time, I was no longer
11 the deputy justice minister, so, therefore, I did not [as interpreted]
12 participate in the work of this commission or in the drafting of the
13 report. Maybe I did with some earlier ones, because, at the time, I was
14 head of the legislation office of the Government of the Republic of
15 Croatia, and later on, I did participate in the work of a joint work
16 group which -- of the Government of the Republic of Croatia, which
17 comprised representatives of the government, including representatives of
18 various ministries, as well as the international community, such as the
19 UNHCR, OSCE, and the European Commission.
20 And we worked on the amendments to the Law on Areas of Special
21 State Concern which came into force in 2002. And the purpose was to
22 terminate the procedure of restitution of property which had been
23 temporarily taken over in accordance with the Law on Temporary Takeover
24 and Management of certain property.
25 JUDGE ORIE: Mr. Mikulicic.
1 MR. MIKULICIC: Yes, Your Honour, one intervention just for the
2 sake of the clarity of the transcript. This is page 74, line 8 when
3 witness was referring that she was no longer the deputy justice minister
4 so therefore she did -- one word is missing, obviously, before the verb.
5 JUDGE ORIE: Yes. Perhaps you could verify.
6 You referred to that you may have possibly have been involved in
7 some earlier reports, but you said:
8 "And later on ..." you did -- did you say you "did" or you "did
9 not" participate in the work of a joint work group which comprised
10 representatives of the government?
11 THE WITNESS: [Interpretation] Yes, I did participate in its work,
12 and I was also co-chairman of this work group, which was established by
13 the Government of the Republic of Croatia.
14 MR. MIKULICIC: I think, Your Honour, that we have some
15 misunderstanding. I will read line 7 on page 74.
16 The witness:
17 "Yes, at that time I was no longer the deputy justice minister,
18 so, therefore, I did ... participate in the work of this commission."
19 She was no longer deputy minister.
20 JUDGE ORIE: But, nevertheless, participated. That's -- yes.
21 Please proceed, Ms. Gustafson.
22 MS. GUSTAFSON: Thank you.
23 Q. And yesterday you were asked questions about the reason behind
24 the abolition of the Law on the Temporary Takeover of Property in 1998
25 and the enactment of mechanisms for repossession in the return programme
1 in 1998, and you've just explained that you were involved in amendments
2 to the Law on Areas of Special State Concern.
3 The Chamber has received evidence that the elimination or
4 amendment of these laws that related to property of Serbs, Croatian Serbs
5 and their return, that those changes were made under significant pressure
6 by the -- by members of the international community. Is that consistent
7 with your recollection, or are you able to comment on that?
8 A. Yes, I can. As I said, I was directly involved in that. From
9 the level at which I participated in the amendments to this law, I cannot
10 speak about pressure from the international community. That was a joint
11 Working Group. Before the group met, the ministry representatives and
12 representatives of international community would meet in order to
13 consider the implementation of various regulations. Our objective was,
14 after difficult experiences, to finally, after several years, bring this
15 Programme of Return to an end. The situation was complex; it was
16 difficult to obtain data; and there were extensive debates professional,
17 legal, and practical about that. But I wouldn't characterise that as
19 We discussed the practical aspect of certain issues. I think
20 that it was in 2001, there were 4.000 empty houses from which the
21 temporary users had been removed. However, the rightful owners were
22 inaccessible and an agreement was reached to try through the UNHCR and
23 the Serbian democratic forum to contact those owners form whom we
24 supposed were in the Federal Republic of Yugoslavia.
25 Q. I just want to focus back to my question which was about pressure
1 from the international community. And in your answer you said at first I
2 cannot speak about pressure from the international community. And then
3 you said later on -- later on you said:
4 "But I wouldn't characterise that as pressure."
5 Were you involved at the political level on return issues with
6 anyone from the international community? Are you able to speak about the
7 extent to which members of the international community were pressuring
8 Croatia on return?
9 A. No, I did not personally take part while I was in the legislation
10 office in those political discussions. I was in regular contact with
11 experts and representatives of international community from the
12 organisations that I mentioned, with a view to removing obstacles to the
13 return of refugees and other persons.
14 Q. Thank you.
15 MS. GUSTAFSON: And if we could to 65 ter 7520, please.
16 [Prosecution counsel confer]
17 MS. GUSTAFSON: It should be available now. Apologies.
18 Q. Ms. Bagic, the document that is going to appear on your screen is
19 a report from December of 2002 by the International Crisis Group, and
20 this was at the time when you were the head of the legislative office for
21 the government.
22 MS. GUSTAFSON: And if we could go to page 3 of the English and
23 page 2 of the partial translation.
24 If we could go to the very bottom of the page in the English on
25 the left-hand side and to the next page in the B/C/S.
1 Q. And the sentence that begins right at the bottom of the page in
2 the English and near the top in the B/C/S:
3 "A 1998 government return programme failed to establish adequate
4 conditions. The effects of discriminatory laws and practices put in
5 place during and after the war continued to prevent them from exercising
6 their rights in key areas."
7 MR. MIKULICIC: Yes, Your Honour, sorry to interrupt.
8 Could we have some foundation what is it International Crisis
9 Group? I mean, whether witness is familiar with this group or -- could
10 we have some foundation on that.
11 JUDGE ORIE: Would you please take care of that in your
12 questioning, Ms. Gustafson.
13 MS. GUSTAFSON: Yes, Your Honour. I think when I ask the
14 question, it will -- I mean, it will be clear that there's no -- I mean,
15 I'm going to ask her about the contents of what is said; it's not
16 particularly the group. I mean --
17 MR. MIKULICIC: The author of the document.
18 JUDGE ORIE: If you want to put to a witness a certain document
19 in which opinions are expressed then, of course, it is important to know
20 who expressed those opinions. Just -- otherwise you can, of course, ask
21 questions about the matter as such. But if you use a text, it should be
22 clear where it comes from, what the authority of it is -- that, for
23 example, if the witness would know that this group consisted of certain
24 people she knows who failed their exams at university, for example, that
25 it might be interesting to hear such comments. Therefore, you are
1 invited to pay proper attention to that aspect of the document.
2 MS. GUSTAFSON: In light of the time, Your Honour, I will not use
3 this document and, in fact, have no further questions for the witness.
4 Thank you.
5 JUDGE ORIE: Thank you, Ms. Gustafson.
6 Mr. Mikulicic, I'm looking at the clock, and I have not yet
7 consulted with my colleagues. Would have you further questions for the
8 witness, and how much time would that take?
9 MR. MIKULICIC: Your Honour, I will only have a couple of
10 questions, and I think I could manage to go through them within next at
11 least ten -- at most ten minutes.
12 JUDGE ORIE: Yes. But then I have to look at the court schedule
13 for this afternoon.
14 [Trial Chamber and Registrar confer]
15 [Trial Chamber confers]
16 JUDGE ORIE: Then with the indulgence of transcribers,
17 technicians, interpreters, you have ten minutes, Mr. Mikulicic.
18 MR. MIKULICIC: I will try to be even shorter, Your Honour.
19 Re-examination by Mr. Mikulicic
20 Q. [Interpretation] Ms. Bagic, just a few questions. I will not
21 keep you too long.
22 The Chamber asked you to interpret the fact due to which the
23 agreement on normalisation was concluded solely with the FRY, the
24 agreement which regulated certain issues relating to the sequester of
1 MR. MIKULICIC: [Interpretation] For that purpose, can we please
2 have on the screen Exhibit D1761.
3 Q. This is the legislative document of the Former Republic of Serbia
4 and Krajina, which stipulates that all citizens of the Serbian Krajina
5 were also registered as citizens of the FRY.
6 In view of such legal status and regardless of where the citizens
7 of the Serbian Krajina were, whether they be in Italy or in
8 Bosnia-Herzegovina, or anywhere else, according to your legal
9 understanding, is it usual and normal to conclude such an agreement with
10 their homeland?
11 A. Yes, that seemed a logical move.
12 Q. My learned friend, the Prosecutor, has just shown you document
13 D428, which is the programme of return and providing of -- for the return
14 of refugees and IDPs dating from 1998. In order to be expeditious, I
15 would just refer you to a provision in this document which in item 4 says
16 that the government reiterates its obligation undertaken with a view to
17 implementing the right of owners for repossession and free disposal of
19 According to your understanding, this position expressed in an
20 official document of the Croatian parliament in 1998, does it govern the
21 issue of ownership of the property that was under the Law of Temporary
22 Takeover was placed under the state sequester?
23 A. Yes, it does because the programme explicitly refers,
24 particularly in, I think, items 9 and 14, to the property taken over
25 under the Law on the Temporary Takeover and Management of Properties.
1 Q. My last question: In principle, when we consider a specific
2 legal situation, especially within the context of a state that is just
3 developing its state system, is it possible to interpret a legal
4 situation based on a single regulation, or is your experience something
5 completely different?
6 JUDGE ORIE: Ms. Gustafson.
7 MS. GUSTAFSON: Your Honour, that question is -- it is totally
8 vague and, I mean, I just I don't think there's any basis for this. It
9 just --
10 JUDGE ORIE: Mr. Mikulicic.
11 MR. MIKULICIC: I will withdraw my question, Your Honour, and
12 have no further questions. Thank you.
13 JUDGE ORIE: Mr. Misetic, you earlier raised a matter which seems
14 not to be urgent anymore, perhaps also in view of the subsequent
15 amendments which we discussed with the witness. So, therefore, I take it
16 that there is no need for further questions.
17 Ms. Gustafson, have the -- has the re-examination of the witness
18 triggered any need ...
19 MS. GUSTAFSON: No, Your Honour.
20 JUDGE ORIE: Ms. Bagic, then this concludes your testimony, since
21 the Bench has no questions for you, or I should say has no further
22 questions for you. I would like to thank you very much for coming to
23 The Hague and for having answered the questions that were put to you by
24 parties and by the Bench. And I wish you a safe return home again.
25 THE WITNESS: [Interpretation] Thank you, Your Honours.
1 JUDGE ORIE: I just abuse for one second the circumstances that
2 we would have one or two minutes extra.
3 [The witness withdrew]
4 JUDGE ORIE: I would like to put two things on the record. The
5 first is that an extension of deadlines was granted for filings during
6 the Christmas recess. As previously indicated to the parties in an
7 e-mail, the Chamber extended deadlines for responses to motions filed
8 during the period of the 21st of December, 2009, through
9 8 of January, 2010, to three weeks. That's put on the record, it was
10 informally communicated with the parties in an e-mail which was sent on
11 the 18th of December, 2009, at 5.41 p.m.
12 I further, for full transparency, would like to inform the
13 parties that, a bit unusual, but the Chamber received from a witness who
14 testified here, Mr. Drazen Vitez, a book under the title of "Varazdin,"
15 that Chamber considers that this book, which is of a touristic character,
16 a lot of nice pictures, and Varazdin being quite far away from the area
17 covered by the indictment, that it is intended as a gift for the
19 We do not know whether the library has any place for such books.
20 If not -- and I understood that others were provided with a copy of this
21 as well. But as soon as the Chamber receives anything which looks like a
22 gift, it should be put on the record. I had a look at it. It is a nice
23 book. I can't read the text, so don't worry about it.
24 That having been put on the record, Mr. Mikulicic, will you have
25 your next witness ready tomorrow?
1 MR. MIKULICIC: Yes, Your Honour.
2 JUDGE ORIE: And that will be ...
3 MR. MIKULICIC: That will be expert witness Mr. General Repinc.
4 JUDGE ORIE: Yes. And an arrangement has been made in relation
5 to cross-examination of this witness, from what I understand.
6 MR. MIKULICIC: Yes, Your Honour. My learned colleague from the
7 OTP asks if the cross-examination could start on Monday because
8 Ms. Prashanthi is temporarily away due to personal reasons.
9 JUDGE ORIE: Yes. And this informal request was granted until
10 now. Did I -- was I informed that you would need four to five sessions
11 with the expert witness?
12 MR. MIKULICIC: Yes, Your Honour.
13 JUDGE ORIE: Other parties would need some time with
14 cross-examination of this witness?
15 MR. KEHOE: Yes, Mr. President. I informed my co-counsel that we
16 would be one to two sessions, but I think we will be approximately no
17 more than one.
18 MR. CAYLEY: And we will be likewise one session, Your Honour.
19 Thank you.
20 JUDGE ORIE: Yes. Which means that we would have ended up most
21 likely to start the cross-examination with the OTP not any earlier than
22 on Friday, and, therefore, that the decision to allow the Prosecution to
23 start its cross-examination Monday is not of dramatic consequences.
24 We adjourn, and thanking the interpreters, transcribers,
25 technicians, security, for allowing the witness to be further excused.
1 We'll adjourn and we resume on Wednesday, the 13th of January,
2 9.00 in the morning, Courtroom III.
3 --- Whereupon the hearing adjourned at 1.50 p.m.,
4 to be reconvened on Wednesday, the 13th day of
5 January, 2010, at 9.00 a.m.