1 Wednesday, 16 February 2005

2 [Open session]

3 --- Upon commencing at 9.00 a.m.

4 [The accused entered court]

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

6 the case, please.

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

8 Number IT-01-47-T, the Prosecutor versus Enver Hadzihasanovic and Amir

9 Kubura.

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

11 Could we have the appearances for the Prosecution, please.

12 MR. MUNDIS: Thank you, Mr. President, counsel in and around the

13 courtroom. For the Prosecution, Mathias Neuner, Daryl Mundis, assisted

14 by Andres Vatter, our case manager.

15 JUDGE ANTONETTI: [Interpretation] Could we have the appearances

16 for Defence counsel.

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

18 morning, Your Honours. On behalf of General Hadzihasanovic, Edina

19 Residovic and Alex Demirdjian.

20 JUDGE ANTONETTI: [Interpretation] Thank you.

21 Could we have the appearances for the other Defence team.

22 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honour.

23 Fahrudin Ibrisimovic, Nermin Mulalic, and Rodney Dixon.

24 JUDGE ANTONETTI: [Interpretation] I would like to greet everyone

25 on behalf of the Chamber, the Prosecution, Defence counsel. I see that

1 one of the Defence is missing. Nevertheless, I greet everyone else in

2 the courtroom and outside the courtroom. We'll be hearing another

3 witness for the Defence today, but the Chamber would like to provide you

4 with some information before we start hearing the witness.

5 Could we first go into private session, Mr. Registrar.

6 [Private session]

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18 [Open session]

19 THE REGISTRAR: [Interpretation] We're back in open session, Mr.

20 President.

21 JUDGE ANTONETTI: [Interpretation] Very well. Now that we're in

22 open session the Trial Chamber has three decisions to render. Firstly,

23 with regard to the issue that concerns the Defence's request to respond

24 to the Prosecution's submissions on facts admitted in other cases,

25 adjudicated facts. Having deliberated, we give the Defence one week to

1 prepare its submissions. So you have until next Wednesday to respond.

2 And we will render our written decision at a subsequent date.

3 Our second decision -- it's a pity that we haven't numbered our

4 oral decisions because we have already rendered a significant number of

5 decisions. But nevertheless, this decision which doesn't have a number

6 is as follows. I'll read it out very slowly so that everyone can follow.

7 It concerns whether or not a document of the 25th -- 24th and

8 25th of May can be admitted. It's addressed the 3rd Corps and it's

9 signed by the duty officer. The Trial Chamber admits this document into

10 evidence only for the refreshment of witness's memory, but the Chamber

11 would also like to point out that this document shall be admitted only

12 because it was used to refresh a witness's memory. And it will be used

13 subsequently by the Judges only to allow the Judges to be aware of the

14 previous debate on the refreshment of the witness's memory.

15 Mr. Registrar, could we have an exhibit number that naturally

16 subject to the reservations I have just mentioned.

17 THE REGISTRAR: [Interpretation] Thank you, Mr. President. P951

18 will be the exhibit number and the English version P951/E. It will be

19 admitted with the conditions that you have just set forth. Thank you,

20 Mr. President.

21 JUDGE ANTONETTI: [Interpretation] Very well. There is also

22 another decision that I would like to render which concerns the documents

23 that the translation unit was required to provide. A memo was sent to

24 CLSS and CLSS has done the work they were asked to do. This concerns

25 P662/E. So there is a memo that concerns this document.

1 And, Mr. Registrar, we need a number for the Chamber that was a

2 memo from CLSS dated the 7th of February, and there is a second memo from

3 CLSS dated the 14th of February, 2005, which concerns DH165.6 and P839/E.

4 So, Mr. Registrar, could we have two exhibit numbers.

5 THE REGISTRAR: [Interpretation] Thank you, Mr. President. The

6 internal memo from CLSS dated the 7th of February, 2005, which concerns

7 Prosecution Exhibit P662/E should be admitted into evidence as the

8 Chamber's document. The number will be C8.

9 As far as the second certainly memo is concerned dated the 14th

10 of February, 2005, which concerns Defence document 165.6 and P839/E, a

11 Prosecution document, this shall be admitted into evidence as number C9.

12 Thank you, Mr. President.

13 THE INTERPRETER: Interpreter's correction: The document is

14 P439/E.

15 JUDGE ANTONETTI: [Interpretation] Mr. Dixon.

16 MR. DIXON: Thank you, Your Honour. While we accept that this is

17 a formal memorandum from the translation unit which must become part of

18 the record because it is as a result of a request Your Honours have made,

19 we have with the greatest respect to the translation unit, some serious

20 questions to be raised about this particular document, and in my

21 submission this is an appropriate time now to ask for a further request

22 to be made to the translation unit. The reason being, Your Honour, is in

23 our view the translation unit has not answered the question that Your

24 Honours put to it, which is why are there two different meanings given to

25 the same word. The translation unit maintains that the two meanings for

1 the same word are ones that should be read for this text, but they do not

2 explain why there are two different meanings given. And, Your Honour, we

3 would request that you direct the translation unit to answer that very

4 important question because that was the reason why this whole issue arose

5 in the first place.

6 In addition to that, Your Honour, what the translation unit has

7 gone on to say is that the first use of the word "odnosno" where the 7th

8 Brigade is mentioned can only be read in one way. But then when it comes

9 to the second use of the word "odnosno" with HVO units, in the last

10 paragraph they say well, that could be read either way, so it could have

11 an alternative reading; but not the first one. In my submission, with

12 the greatest respect, we cannot understand why they can come to that

13 conclusion. Why can both places where "odnosno" is used not be read this

14 both ways? That was our request in the first place: Is there an

15 alternative meaning? They have said yes, there is an alternative meaning

16 for the second word, but not for the first use. In our view, this

17 doesn't help Your Honours at all to resolve the problem.

18 I know great efforts have been made by the translation unit to

19 look into this matter, but in our view, the matter is still not resolved.

20 We would request a further submission be made to the translation to

21 resolve those two questions, which is why the difference and can the word

22 not be read both ways in both contexts. This is a free-standing word.

23 We have a copy of the Croatian-English Dictionary here, and in that

24 dictionary, Your Honour, it very clearly indicates that it can be read as

25 "and." The translation did refer to in their memorandum but only to the

1 first few lines of the dictionary definition. They never went on to show

2 how the word can be used as one to show more than one item, a collective

3 item. For example, in the dictionary definition, and I have a copy here

4 for Your Honours, they give examples of someone who is 14 and 17 years

5 old; somebody who is to meet somebody at 8.00 or 10.00, or 8.00 and

6 10.00. They give examples of two relatives, her aunt and her first

7 cousin, for example. These are all examples that are mentioned in the

8 dictionary definition which are not included in the memorandum from CLSS.

9 Just one final point, Your Honours, that the CLSS was also asked

10 to look at the transcript. I remember very clearly that Your Honours

11 pointed them at the direction of looking at the full transcript where

12 this word was used by the witness and in relation to the document, but it

13 doesn't appear from their memorandum that they have taken the transcript

14 into account. And it might well be that that is an important

15 consideration, to look at the context, the full context, of the word when

16 giving it a definition. So for all of those reasons, despite all the

17 work that has been done, we still don't believe this is of any assistance

18 to us in re solving this problem and we would request that the matter has

19 to be sent back to CLSS to resolve the matter for Your Honours. Thank

20 you, Your Honours.

21 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Dixon.

22 Is there anything the Prosecution would like to say?

23 MR. MUNDIS: Thank you, Mr. President. The Prosecution will take

24 a slightly different stand on this issue, Mr. President, as you might

25 anticipate. It's our position that CLSS within this institution has

1 extremely high professional standards and given the length of time that

2 these dedicated and hard-working individuals have put into interpreting

3 and translating for us are among the best in the world. We don't believe

4 that further work or analysis needs to be done with respect to this

5 issue. They've been asked to do it twice; they have responded. They

6 have explained in the memorandum C8 the position that they have taken.

7 We believe to take this further or perhaps to outsource this document for

8 further translation work, Mr. President, would not be a good idea. It

9 could lead to what we in the common law often know of the battle of the

10 experts, whereas the parties would be seeking outside expertise to

11 explain to us what this document means when our own in-house linguistic

12 experts have already done so.

13 And finally, we would submit that many of the points made by my

14 learned colleague, Mr. Dixon, are the types of issues in argument that

15 come at the end of trial. Their position with respect to the language of

16 the document is quite clear; the Prosecution position will be, as you can

17 imagine, quite contrary to that put forward by the Defence.

18 And in our submissions, CLSS has been asked to do this; they have

19 done it. They have been asked to do it again; they have done that. We

20 would submit that the position taken by the Defence is more properly left

21 to the closing arguments once the Trial Chamber has all the evidence

22 before it.

23 JUDGE ANTONETTI: [Interpretation] Very well. Given the Defence's

24 question, the Prosecution's position, the Judges will deliberate on the

25 issue and we will inform you of our decision.

1 MR. DIXON: Your Honour, could I just add one further matter

2 which may be of assistance. I do agree with my friend that these are

3 matters of argument as well. We will be addressing those of course in

4 the closing arguments, and that is in respect of what the witness himself

5 said about it the document. Our submission would be that that is

6 paramount: what he actually said about why he put these words and what he

7 meant as the author of that document. Fortunately we had the author of

8 that document to give evidence directly to Your Honours.

9 As my friend as said before, the issue is whether we can obtain a

10 neutral interpretation from the translation unit. And in our submission

11 this document simply doesn't take us any closer to resolving that

12 problem. And it's in everyone's interest, we would submit, that we have

13 the questions we put to CLSS about what are the different meanings; can

14 it be given different meanings in different contexts; why one meaning and

15 not the other; all those questions that were put in the transcript.

16 Those might be properly answered. And it might be a question of

17 clarifying that with the translation unit. Thank you, Your Honours.

18 JUDGE ANTONETTI: [Interpretation] Yes.

19 And the other Defence team.

20 MS. RESIDOVIC: [Interpretation] Mr. President, for the sake of

21 the transcript and so that the Chamber is quite clear that General

22 Hadzihasanovic's Defence doesn't have a neutral position with regard to

23 this issue, we fully agree with the submissions made by my colleague, Mr.

24 Dixon. We don't believe that the answer posed by the Chamber has been

25 fully answered. We believe that we should condition to deal with the

1 issue. This is in the interest of the Chamber and of everyone else. And

2 finally, when you indicated that the translation unit should review the

3 transcript, this was extremely important because the witness who drafted

4 that document drafted other documents which -- in evidence and which show

5 that these were two things that the 306th regarded in quite a different

6 way -- in a separate way. So we don't understand how CLSS could have

7 said that "odnosno" can be translated in one part of the text in

8 different ways and in another part of the text they give it only one

9 meaning.

10 With all due respect, because I also believe that the translation

11 unit is doing excellent work, but I must point out that before this

12 Chamber we have on a number of occasions noticed significant errors which

13 affect in a significant manner the meaning of documents. I believe that

14 this is one such example and the Trial Chamber should endeavour to obtain

15 a final answer to all the questions raised.

16 JUDGE ANTONETTI: [Interpretation] Very well. As I have said, the

17 Judges will deliberate about the matter and we will inform you of our

18 decision as soon as possible.

19 Mr. Mundis.

20 MR. MUNDIS: Thank you, Mr. President. I just -- if I could

21 simply add one point and this is with respect to the transcript or

22 sending -- having CLSS review the transcript of the witness's testimony.

23 The Trial Chamber will recall at the time this was raised that the

24 Prosecution did not believe that was a wise course of action for the

25 simple reason that with respect to this document -- I draw your attention

1 to the transcript at page 14860 where the witness himself said that he

2 didn't draft the document but simply signed it. So our position would be

3 that he's not the drafter. Whatever the testimony of the witness was

4 with respect to what he thought he was signing is a matter for closing

5 arguments. And in our opinion, since he is not the drafter, what he has

6 to say about the document is of only limited value and we don't believe

7 we should be getting into a situation where a large number of documents

8 might be challenged or on the grounds that a drafter 10 or 12 years later

9 tries to reinterpret a contemporaneously written document. We strongly

10 believe that the documents need to speak for themselves. The witness's

11 testimony concerning the documents is a matter for closing argument. And

12 we would simply like to put that on the record as well, Mr. President.

13 Thank you.

14 JUDGE ANTONETTI: [Interpretation] Very well. This is a part of

15 the transcript personally -- I believe that this is as a result of fact

16 that this is sui generis procedure. Mr. Dixon [sic] has said according

17 to the common-law procedure that each party calls its own experts,

18 whereas according to the continental system the Chamber would call an

19 expert who would state his position as an expert independently. As this

20 is a hybrid procedure, the solution that was found by those who drew up

21 the Rules, the solution was to have a specialised service, CLSS namely.

22 And it is their staff who do this work.

23 But having pointed this out I -- I personally believe that when

24 the parties call their witnesses or witness for the Defence or witness

25 for the Prosecution, if they believe that a term in a document might

1 result in significant debate and have subsequent consequences, nothing

2 prevents the parties from calling an expert as a witness who will say

3 that the word "odnosno" means such-and-such a thing. And then we would

4 have a course on B/C/S grammar and on the term "odnosno." That could be

5 the procedure to be followed. In spite of the existence of CLSS, we're

6 not prevented from calling such a witness. The parties are not prevented

7 from calling such a witness to support their point of view because if

8 this debate is included in the submissions of the parties before the

9 Chamber deliberates, then we won't have had an adversarial debate about

10 the issues. So this is why it's important for both parties to intervene

11 and this will make it possible for the Chamber to be familiar with the

12 debate. But it's not useful for the Judges to discuss this matter among

13 themselves [as interpreted]. But as I have already said, we will render

14 our decision as soon as possible. If there are no other issues to raise,

15 we will now call the witness.

16 Mr. Usher, could you call the witness into the courtroom, please.

17 [The witness entered court]

18 JUDGE ANTONETTI: [Interpretation] Good morning. Let me check

19 first that you are hearing what I'm saying in your own language. If so,

20 please tell me.

21 THE WITNESS: [Interpretation] I can hear you and understand you.

22 JUDGE ANTONETTI: [Interpretation] Sir, you have been called as a

23 Witness by the Defence of General Hadzihasanovic. Before you read the

24 solemn declaration, I need to know your identity. So please tell me your

25 first and last name, date and place of birth.

1 THE WITNESS: [Interpretation] I'm Hilmo Ahmetovic. I was born on

2 the 10th of February, 1964, in location Potocani, municipality of Doboj,

3 today part of Republika Srpska.

4 JUDGE ANTONETTI: [Interpretation] What is today your occupation

5 and position?

6 THE WITNESS: [Interpretation] I'm a graduate lawyer. I'm

7 employed at the cantonal court in Zenica and working in that court.

8 THE INTERPRETER: Interpreter's correction: Working in Zenica at

9 that time.

10 JUDGE ANTONETTI: [Interpretation] In 1992 and 1993, what was your

11 position and role?

12 THE WITNESS: [Interpretation] Before the beginning of the war in

13 Bosnia and Herzegovina I was working in a manufacturing company Bosanka

14 Doboj as head of the legal department. And after the conflict broke out

15 I moved to Tesanj where I became a member of the Territorial Defence

16 which later developed into the Army of Bosnia and Herzegovina and I

17 worked there until the 1st of September, 1992, when I became secretary of

18 the district military prosecutor's office of Doboj based in Tesanj. And

19 I performed those duties until February 1993 when I became a judge of the

20 district military court of Doboj based in Tesanj. I kept that position

21 until the 25th of October, 1993, when I became a judge of the district

22 military court of Zenica.

23 JUDGE ANTONETTI: [Interpretation] Thank you. Have you testified

24 before in an international or national court about the events that took

25 place in your country in 1992 and 1993, or is this the first time for you

1 to testify in court?

2 THE WITNESS: [Interpretation] This is the first time for me to

3 appear as a witness in these cases.

4 JUDGE ANTONETTI: [Interpretation] I'm going to ask the usher to

5 give you the solemn declaration and ask you kindly to read it.

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

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

8 JUDGE ANTONETTI: [Interpretation] Judge, please take a seat.

9 THE WITNESS: [Interpretation] Thank you.

10 JUDGE ANTONETTI: [Interpretation] Judge, as I have said, you have

11 been called by the Defence as a Defence witness. And before the give the

12 floor to the Defence counsel which will have questions for you, I wish to

13 give you some information regarding the proceedings with respect to

14 witness testimony. As you will realise very quickly, this is a very

15 specific procedure in which there's a combination of common law and

16 continental law and the Rules of Procedure that guide us allows the

17 Defence, which calls you, to ask you questions within the framework of

18 what is known as the examination-in-chief. The Defence has envisaged a

19 period of about an hour and a half for their questions. Yes, indeed, it

20 is an hour and a half. The questions that will be put to you by Defence

21 counsel are not leading; neutral in such a way that the witness is

22 expected to give full answers to those questions.

23 Upon the completion of that stage the Prosecution, which is to

24 your right, will also have questions for you in the form of a

25 cross-examination. This is a common law characteristic, and according to

1 the common law they have an equal amount of time available to them. But

2 an important difference is that the Prosecution is allowed during their

3 cross-examination to ask you leading questions so that you may answer

4 with a yes or no. So that is the technical aspect.

5 At the end of that stage the Defence attorneys may have

6 additional questions for you which are directly linked to the questions

7 asked during the cross-examination. However, in that stage, too, the

8 questions may not be leading. At the end of these stages, these three

9 different stages, the Judges who are in front of you may ask you

10 questions. And in view of the fact that you are a judge, I am sure that

11 they will have plenty of questions for you.

12 The Judges are allowed to ask you questions at any point in time,

13 but they prefer to wait for both parties to finish with their questions

14 because very often the concerns of the Judges are already covered by the

15 parties. So we prefer to allow them to ask you questions first. And

16 once that has been completed, if the Judges feel that there are points to

17 be clarified because they feel that the answers are not quite clear

18 enough, then they may ask you to clarify some of the answers you have

19 given. All this is in the interest of justice and the establishment of

20 the truth. And if certain questions which we feel should have been put

21 to the witness were not and we consider them to be important in the

22 interest of truth, we will ask you those questions. And also during the

23 questions the parties may be showing you documents and you will be asked

24 to comment on those documents. That would be, in very general terms, the

25 way in which this hearing will develop.

1 As you may know, we don't have any written document from you

2 except for a very brief summary of your testimony. So what will

3 represent your testimony will be what you said here which will be

4 recorded in the transcript which will appear on the screen, as you will

5 see. And that will be the record of this hearing. Hence, the importance

6 of what you say. If you don't understand the meaning of a question put

7 to you, ask the person putting it to rephrase it, but I'm sure that as a

8 judge you will understand the sense of the questions. But as I say this

9 to all witnesses, I'm saying this to you, too.

10 I also need to remind witnesses of two important points in our

11 rules, and that is that when a witness takes the solemn declaration to

12 tell the whole truth, all false testimony is excluded; that is the first

13 reminder. And the second which is specific to our procedure, and that is

14 if a witness feels that if answering a question his answers may one day

15 be used to incriminate him, the witness is entitled to say that he won't

16 answer that question; but this is something we have never come across.

17 So it is just a hypothetical. The Chamber may nevertheless ask the

18 witness to provide an answer, guaranteeing immunity for the future. In

19 the American system, immunity is granted by the Prosecution, but in our

20 system it is the Trial Chamber. So those would be the general remarks

21 regarding this hearing.

22 We will also have two breaks of 20 to 25 minutes which are

23 necessary because everything that is being said is being interpreted. So

24 the interpreters need a rest, also to give the witness a chance to have a

25 breather because answering questions for hours can be quite tiring. So

1 you will have two breaks of 20, 25 minutes each.

2 So those are the general points of information that I wanted to

3 give you. I will now give the floor to the Defence counsel who will

4 begin her examination-in-chief.

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

6 WITNESS: HILMO AHMETOVIC

7 [Witness answered through interpreter]

8 Examined by Ms. Residovic:

9 Q. [Interpretation] Good morning, Judge Ahmetovic.

10 A. Good morning.

11 Q. In addition to the information given to you by the Trial Chamber,

12 let me ask you something else. We speak the same language and you can

13 immediately answer my question, but I would appeal to you to wait a few

14 seconds before answering my question so that both my question and your

15 answer can be interpreted to Their Honours and our learned friends from

16 the Prosecution can follow what we're saying. Do you understand?

17 A. Yes.

18 MS. RESIDOVIC: [Interpretation] Mr. President, Your Honours, I

19 will be using some of the documents in the binder from yesterday for this

20 witness. I would like to ask this binder of documents to be given to the

21 witness so as to avoid any future interruptions.

22 Q. Judge Ahmetovic, you said that for a time in 1992 you were a

23 judge of the district military court in Doboj which was based elsewhere.

24 Did you leave that area, and when, to come to Zenica?

25 A. As I have already said in the introduction, as of February 1993 I

1 became a judge of the district military court of Doboj which was based in

2 Tesanj, but I stayed in that position only until June of 1993, when due

3 to the conflict between the BH army and the HVO in this territory of

4 Zepca municipality, I was unable to return from Zenica to Tesanj. So I

5 stayed in Zenica and was employed in the district military court in

6 Zenica as of the 25th of October, 1993.

7 Q. How long did you remain a judge in the district military court in

8 Zenica?

9 A. I remained in that position until it was abolished, and that was

10 in July 1996, when all the judges of the district military court of

11 Zenica were transferred to work in the then-higher court of Zenica.

12 Q. Tell me, please, what were your duties as a judge of the district

13 military court in Zenica?

14 A. As a judge of the district military court of Zenica, I acted

15 exclusively as an investigating judge, and from time to time I was also

16 the duty judge.

17 Q. Tell me, when you became a judge of that court or perhaps later,

18 was at some point in time the court subordinated to the 3rd Corps or the

19 BH army?

20 A. No. The district military court of Zenica thought its existence

21 was never subordinated to any military institution, and therefore not to

22 the 3rd Corps command either.

23 Q. Can you tell me to whom was that court subordinated in the

24 administrative sense and what was it linked to in the professional

25 jurisdiction system?

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1 A. Talking about the administrative links between the Zenica court,

2 in the first period until July 1994 the district military courts were

3 within the jurisdiction of the republican defence ministry, and from then

4 on until they were abolished, district military courts were within the

5 administrative jurisdiction of the republican ministry for justice and

6 administration. With regard to the professional links, it was our duty

7 to abide by the decisions of the then-republican Supreme Court.

8 Q. Which was the second instance decision-maker regarding your own

9 judgements?

10 A. Appeals against judgements of district military courts were tried

11 by the Supreme Court of Bosnia and Herzegovina, but because of the

12 blockade around Sarajevo it had departments in Tuzla and Zenica, first in

13 Tuzla and later in Zenica as well.

14 Q. Could you tell us who the military courts tried, or rather who

15 were they responsible for?

16 A. The exclusive responsibility of district military courts for

17 their duration was to try military personnel, and in some cases, district

18 military courts could also try civilians.

19 Q. Could you tell us when military courts could try civilians. Was

20 this stipulated by law or did it depend on practice?

21 A. This was not something that depended on the practice of the

22 courts. The decree forming district military courts stipulated

23 jurisdiction in specific cases for civilians. There were only two

24 possibilities, and those were if there is proof that a civilian had

25 committed a crime against the constitutional order of the Republic of

1 Bosnia and Herzegovina or if the civilian committed a crime against the

2 armed forces, or that is the Army of is the Republic of Bosnia and

3 Herzegovina.

4 Q. Tell me, which were the offences covered by district military

5 courts?

6 A. District military courts has responsibility to try all criminal

7 offences committed by members of the Army of Bosnia and Herzegovina, that

8 is military personnel; as for civilians, as I have already said, only in

9 cases of two offences against the constitutional order and against the

10 armed forces of the Republic of Bosnia and Herzegovina.

11 Q. Judge Ahmetovic, in addition to district military courts in the

12 BH judicial system were there any other courts?

13 A. In addition to district military courts in the Republic of Bosnia

14 and Herzegovina in those days, there were also regular courts, municipal

15 courts, which were competent for criminal offences committed within the

16 territory of only one municipality; and then there were also higher

17 courts formed at the time for a larger territorial unit and there was the

18 Supreme Court of the Republic Bosnia-Herzegovina as the supreme judicial

19 body.

20 Q. Who did regular courts try?

21 A. They mostly tried civilians, though in some cases they could also

22 try military personnel for criminal offences only if a civilian and a

23 military person jointly perpetrated a criminal offence which did not come

24 within the jurisdiction of district military courts.

25 Q. Judge Ahmetovic, in the legal system of the Republic Bosnia and

1 Herzegovina in addition to courts who -- which are independent in the

2 jurisdiction system, were there any other bodies that were responsible

3 for lawful activities?

4 A. Yes, there were magistrate courts. These are offences that are

5 not criminal offences. If a person commits a minor infringement of the

6 law or of discipline, for example, disturbance of the public law and

7 order, such cases would be tried by magistrate courts.

8 Q. Judge Ahmetovic, do you know whether in addition to independent

9 courts such as regular and district military courts, were there any

10 jurisdiction bodies within the armed forces; and if so, tell us what they

11 were?

12 A. In addition to district military courts which had responsibility

13 over military personnel within the Army of Bosnia and Herzegovina I

14 remember that a decree was passed envisaging the formation of special

15 military courts in military units which could put on trial only members

16 of the BH army or military personnel which while serving in the BH army

17 committed a crime which could undermine the stability of that military

18 unit which could jeopardise the stability of the front lines. Or if such

19 an act could cause a breakthrough of front lines or fall of front lines,

20 then these special -- then these units had the right to form such special

21 military courts which would -- could on the spot try some persons. And

22 such military courts were not formed, as far as I know, except for one

23 case that I'm aware of of such special military court made by the

24 decision of the commander of the 126th Mountain Brigade, Ilijas, which

25 was in the responsibility of the 1st Corps. But because of the

1 territorial dispersion, the district military courts in Zenica covered

2 that brigade as well. And I am aware that such a court was formed by the

3 brigade commander. But in the course of the proceedings before that

4 court they found that the offence was not so grave and he was forwarded

5 to the district military courts in Zenica to be tried there.

6 Q. Tell me, Judge Ahmetovic, how did criminal proceedings before a

7 district military court begin? As you have testified, you were

8 investigating judge of that court. Tell me, when and how criminal

9 proceedings began in a district -- in the district military court.

10 A. In accordance with the valid provisions of the code on criminal

11 procedure taken over from the SFRY and according to which judges of the

12 district military courts, including the Zenica court and myself as judge

13 of that court, would start with an investigation carried out by the

14 investigating judge, that would mark the beginning; which meant that the

15 investigating judge, in accordance with the law on criminal procedure,

16 had the duty to call the suspect, to question that suspect regarding the

17 circumstances of the criminal offence he's being charged with. And if on

18 the basis of his statement and evidence provided by the competent

19 prosecutor that there is grounds to believe that that person committed

20 the crime he is charged with, then an investigation will be started. And

21 this marks the beginning of criminal proceedings against a particular

22 individual.

23 Q. Judge Ahmetovic, as an investigating judge were you able to

24 decide independently on carrying out investigation because you learned

25 that somebody had committed a crime? And upon whose request could

1 criminal proceedings be instituted?

2 A. The investigating judge, according to the provisions of the code

3 and criminal procedure, had no authority to institute any criminal

4 proceedings himself against anyone until the competent district military

5 prosecutor's office does not [as interpreted] submit a request for

6 starting an investigation against a particular person with a specific

7 factual description of the offence he is charged with and including a

8 legal qualification for that offence.

9 Q. Tell me, before criminal proceedings are instituted, that is

10 before the prosecutor submits a request for investigation, which was the

11 body that was in charge of what was known as the pre-criminal proceedings

12 phase or pre-trial phase?

13 A. The only body who was in charge of this pre-trial phase was the

14 district military prosecutor's office or the competent prosecutor's

15 office.

16 Q. You just said that you issued decisions on starting an

17 investigation on the basis of the request of the district military

18 prosecutor. What were the obligations of the investigating judge when

19 receiving such a request?

20 A. According to the provisions of the law on criminal procedure, the

21 investigating judge was duty-bound upon receiving for [as interpreted]

22 the competent military prosecutor's office a request for an investigation

23 to examine the same regarding the factual description and the legal

24 qualification of the criminal offence. And if from the factual

25 description of the offence he would find that it was not properly

1 qualified or that there was no criminal offence and there was no criminal

2 responsibility of that person, he could express his disagreement with the

3 request for an investigation and then ask the criminal Chamber of the

4 same court from which the request for an investigation had been received.

5 So the final decision regarding the factual description and the legal

6 qualification would lie with the court.

7 Q. Tell me, Judge Ahmetovic, in the course of the investigation

8 itself, what does the investigating judge actually do? What steps does

9 he take in accordance with the law? What is he entitled to do?

10 A. If the investigating judge is in agreement with the request for

11 an investigation that he received from the prosecutor, the first step

12 that he has to take according to the law is to call up the suspect to

13 question him about the circumstances of the commission of the offence he

14 is charged with. Of course it is implied that that person must be

15 available to the court. And I must say on the basis of practice and my

16 personal experience as an investigating judge, very frequently in the

17 course of criminal proceedings I was not able to reach suspects and very

18 often not even witnesses who were either in territory under control of

19 members of the HVO or the Army of Republika Srpska or such persons had

20 emigrated to third countries and it was simply impossible to reach them.

21 So there were such situations, too.

22 However, in situations when I was able to get hold of the

23 suspect, the first step I would take would be to question that person

24 regarding the circumstances of the commission of the act. Then a

25 decision on an investigation is passed, which is a document allowing the

1 investigating judge to continue with his investigations as envisaged by

2 the competent prosecutor's office or proposed by the prosecutor. Of

3 course, the investigating judge was not bound only by that request. If

4 the investigating judge should find it necessary in the interest of

5 justice and the full establishment of the truth, he could carry out other

6 investigations which he may deem to be necessary at that point in time.

7 Q. Judge Ahmetovic, could you now tell me whether the military organ

8 or the military police of that military organ, regardless of whether it

9 was a brigade or a corps, could it order the investigative judge to take

10 certain actions and could the investigative judge be ordered how to take

11 such actions?

12 A. Absolutely not. The investigative judge only had to bear in mind

13 the request for carrying out investigation from the military prosecutor's

14 office; no one else could influence the investigative judge as far as

15 carrying out investigations are concerned.

16 Q. Judge Ahmetovic, tell me, did the investigative judge cooperate

17 with the military police of the army when performing his duties, and if

18 so how would you assess that cooperation, or rather how did the military

19 unit and the military police carry out orders issued by the court?

20 A. Yes, the investigative judge did cooperate with members of the

21 military police battalion, especially in my case. I cooperated with

22 members of the military police battalion from the 3rd Corps. And in

23 particular, in a situation when we went to on-site investigations

24 together. And later on in the course of the investigation the military

25 police battalion provided all possible support to me as an investigative

1 judge and to the entire district military court in Zenica. They carried

2 out all sorts of orders and provided all forms of support in order to

3 enable the district military court in Zenica to function properly.

4 Q. Judge Ahmetovic, could you tell me what -- could you mention some

5 orders that you forwarded to the military police, orders that they

6 carried out, that they had the duty to carry out?

7 A. In the course of the investigation, these were my orders: to

8 bring in certain individuals, either suspects or witness who did not want

9 to respond to a call from the court. So the cooperation took the form of

10 bringing in these individuals to the district military court in Zenica.

11 In addition, they carried out all other orders that concerned carrying

12 out certain investigations that were urgent. For example, when an

13 on-site investigation is being carried out, then the court has to use

14 experts from the military police battalion in order to take certain

15 steps. For example, in order to gather evidence at the site, in order to

16 secure the site, in order to secure the evidence at the site, take charge

17 of the evidence, place the evidence in safes where they are kept until

18 the proceedings are instituted. So these are the actions that were taken

19 and the military police battalion provided much assistance to the Zenica

20 district court.

21 Q. Judge Ahmetovic, on a number of occasions you mentioned on-site

22 investigations. Tell me, according to the law on criminal procedure

23 could the judge sometimes participate in pre-criminal proceedings or

24 pre-trial proceedings before there was a request for proceedings

25 submitted by the prosecutor? And if such, could you mention the

1 situations that this concerned -- if so, could you mention when this took

2 place.

3 A. At the beginning I already said that in addition to being an

4 investigative judge I was quite frequently, according to the schedule of

5 the presiding judge, a duty judge. This was a judge who had to carry out

6 on-site investigations if it was necessary when on duty. Duty would last

7 for seven days in a month. The investigative judge would do what was

8 necessary to be done on the basis of law on criminal procedure. And I

9 adhered to these laws when I went to on-site investigations, necessary to

10 state what the judge did at on-site investigations. It would be

11 senseless to mention particular cases. You have cases of murders,

12 traffic accidents, et cetera. I would have to go into all these cases.

13 But the we all though what duty judge or an investigative judge does at

14 an on-site investigation. The duty judge must go to the site whether --

15 where an incident broke out or to the site where people state that an

16 incident broke out. And he must record the situation there. If there

17 are any changes at the site from the time when the incident occurred up

18 until the time when the duty judge arrives there to carry out the on-site

19 investigation, I believed that it was useless to carry out an

20 investigation at such a site because the site had been tampered with,

21 evidence had been tampered with, perhaps the body, et cetera. And these

22 are the subjects of interest for an investigation.

23 Q. Judge, when you go to an on-site investigation, can you tell me

24 which organ is in charge of an on-site investigation; who issues orders;

25 what kind of orders are issued; and to what extent are certain

1 investigative steps taken in the course of the on-site investigation?

2 A. According to the law of criminal procedure, this is very clear,

3 too. The duty judge is in charge of the on-site investigation and all

4 those present must obey the orders of the duty judge. Naturally, in

5 addition to the duty judge the competent duty prosecutor must be present

6 and other experts who might assist the duty judge when carrying out

7 certain investigations which have to be carried out at the site itself.

8 Q. Once the judge is at the site, is at the scene, what is the role

9 of the military police or of the civilian police? Can they continue to

10 do what they think they should do independently or do they have to

11 further abide by orders of the investigative judge?

12 A. I've already said that the person in charge of the on-site

13 investigation is the duty judge, and no one present is allowed to take

14 any steps unless the duty judge issues an order. The duty judge is the

15 main person in charge.

16 Q. Judge, tell me, who is provided with the material, the evidence

17 gathered -- material on the evidence gathered? Once the on-site

18 investigation has been completed, who is provided with this material?

19 A. After the on-site investigation team with the duty judge at its

20 head completes the on-site investigation, the duty judge must compile a

21 written record on the on-site investigation, a record in which he will

22 state what was found in the course of the on-site investigation. And

23 naturally, it's also his duty to refer to all the orders he issued in the

24 course of the on-site investigation. This is also his duty to wait to

25 receive information from the military or civilian police on orders

1 carried out in the course of the on-site investigation. And after all

2 this material evidence has been gathered, together with the record of the

3 on-site investigation, he -- well, he provides all this material to the

4 competent military prosecutor's office, which will then assess all the

5 material provided.

6 Q. After the judge provides all the material from the on-site

7 investigation together with his record to the competent prosecutor, who

8 becomes the dominus litis, the main person? Who is then in charge of the

9 material and who is in charge of criminal proceedings that might be

10 instituted?

11 A. Since we're speaking about the role of the main person, while

12 continuing to use that term, it's the competent prosecutor who becomes

13 the person who is in charge.

14 Q. Mr. Ahmetovic, can the military organ or the military police

15 prevent the prosecutor from initiating criminal proceedings or can they

16 in some other way influence the decision taken by the prosecutor as to

17 whether to institute criminal proceedings or not?

18 A. No. No one can influence the competent prosecutor. No one can

19 influence his decision to prosecute an individual or not to prosecute an

20 individual. It's for the prosecutor to decide whether he intends to

21 prosecute someone. No one has any influence on him.

22 Q. When you say no one can influence him, can you as a judge

23 influence the prosecutor's decision?

24 A. No.

25 Q. Thank you. As the investigative judge, having gathered all the

1 evidence, having dealt with all the evidence suggested by the prosecutor

2 or perhaps by the accused or his defence, and having carried out all the

3 actions you believed you should carry out in the interest of justice,

4 what then happens? What is then done up to this stage?

5 A. After I as the investigative judge have carried out all the

6 necessary actions and carried out the request for an investigation and

7 having carried out all the other necessary actions in order to determine

8 what the situation was, when I believe that the investigation is complete

9 I send the record and all the evidence to the competent military

10 prosecutor's office for further assessment. After they have received my

11 case file, the military prosecutor's office in accordance with the law on

12 criminal procedure has a number of possibilities. But it's for the

13 competent prosecutor to decide what to do. No one can influence his

14 decision. And this is quite clearly stated in the law.

15 Q. If the prosecutor believes that the evidence gathered is

16 sufficient and that it confirms his belief that a certain individual

17 perpetrated the crime in question, what decision does he take, what sort

18 of document does he draft, and which organ, which body, discusses this

19 decision?

20 A. If the competent prosecutor after having assessed, after having

21 reviewed the entire case file finds that there is sufficient evidence

22 that indicates that someone committed a crime, the prosecutor then brings

23 an indictment to prosecute a certain individual. And this indictment

24 together with the entire file is forwarded to the competent court. In my

25 case it's the military -- district military court. After they receive

1 this indictment, the judge who's in charge of the case will review the

2 indictment and then provide it immediately to the accused and his defence

3 to give them the possibility of objecting to the indictment.

4 Q. If the objection is not accepted, what then happens?

5 A. In such a situation the indictment in accordance with the law on

6 criminal procedure comes into legal force and the competent judge seized

7 of the case schedules a trial.

8 Q. Judge Ahmetovic, could you now have a look at a document under

9 section 3, documents 1 to 7. And I will now list them. 1 is document

10 1311; document 2 is document DH155, document number 8; under 3 we have

11 document 1450; number 4, document 1975; number 5, document 1576; number

12 6, document in -- it says DH306; number 7, document 1977.

13 Once you have had a look at these documents I would like to ask

14 you whether these documents are Prosecution documents --

15 JUDGE ANTONETTI: [Interpretation] Yes, the Prosecution.

16 MR. NEUNER: Your Honours, we just wish to note for the record

17 that a few of these seven documents just referred to are not translated

18 to English for the time being. It's just for the record.

19 JUDGE ANTONETTI: [No interpretation]

20 THE WITNESS: [Interpretation] I apologise. I didn't quite

21 understand this question because I don't see which documents you're

22 referring to because there are three number 3s.

23 MS. RESIDOVIC: [Interpretation]

24 Q. Number 3 with the heading "Indictment." So there is a set of

25 documents there. It says "Indictment." And then within that group there

1 are seven documents whose numbers I have listed.

2 A. Just a moment, please.

3 Q. May I help you. You can see the III and a piece of paper that is

4 larger than the rest and the heading on it is "Indictment."

5 A. I have number 1.

6 Q. Yes. After the big -- this document you have number 1. And then

7 under number 1 you have a document with the number 1311.

8 A. Yes, I've found that.

9 Q. So these seven documents, 1 through 7, will you please look at

10 them and tell me whether you recognise in these documents a document of a

11 particular body; and if so, will you tell us what kind of documents and

12 which body is involved.

13 A. All the documents I have reviewed are very well-known to me.

14 These are indictments of the district military court of the Zenica which

15 was submitted to my district military court in Zenica for further

16 processing. And due to legal considerations, I did not participate in

17 the trials of these persons but I am familiar with these indictments from

18 other trials, such as certain objections to indictments. But I did not

19 take part in trying these persons because that is prohibited. An

20 investigation who is charge -- an investigating judge in charge of an

21 investigation cannot be a trial judge.

22 Q. Now, look first at the first document with the number 1311. This

23 document contains a description of the act that the person is charged

24 with. And after a description of that act, there is a legal

25 qualification of that act. My question to you, Judge, is: Which was the

1 body to be -- the first to suggest a qualification of an offence and

2 which was the body that had the final say regarding the legal

3 qualification of an act?

4 A. According to an unwritten rule from my own experience, criminal

5 reports for criminal offences against individuals were usually filed

6 either by members of the civilian or the military police who would

7 collect evidence about the offence committed and the moment they come to

8 the conclusion that a person has committed or perpetrated, a criminal

9 offence, they file a criminal report in which they describe in which a

10 certain person committed a certain offence and they give a legal

11 qualification of that criminal offence. Of course, that legal

12 qualification was not binding for the prosecutor or for the investigating

13 judge or for the Trial Chamber during the main trial. The only person to

14 finally decide what criminal offence was committed was the competent

15 Trial Chamber of the court.

16 Q. If you look at the legal qualification in this indictment, you

17 will see that the event in which a person, to appropriate something

18 belonging to Stipe Akrepovic, who was a Croat, pointed an automatic rifle

19 at him, searched his house, and tried to take some property out of that

20 house. This event he qualified as an aggravated burglary according to

21 Article 151 of the Criminal Code of Bosnia and Herzegovina.

22 My question to you is: Could the court on the basis of this

23 description change the qualification and qualify it as a different

24 criminal offence if he felt that it could be given a different

25 qualification?

1 A. I have already said that the Trial Chamber or an individual judge

2 who tried the case was not bound by the legal qualification in the

3 indictment, and therefore not by this indictment, either issued against

4 this person for aggravated robbery. The court would decide on the basis

5 of all the evidence produced during the trial. So whatever the

6 individual judge or a Trial Chamber established at trial would be

7 decisive for the qualification of the criminal offence and he would find

8 the suspect guilty or not guilty of that offence, depending on the

9 outcome of the trial. But he was not bound by the legal qualification

10 given here. And if you're asking me for this particular case whether the

11 qualification could be changed, it could if the court found that it was a

12 different offence that was committed. But if the court found that the

13 act corresponded to the one found by the prosecutor, then he would stick

14 with it.

15 Q. Will you please look at this indictment number 2, DH155/8. And

16 if you can see from the description, the accused entered the house of the

17 victims Pravdic, Kata, and Stipo - I assume they were also Croats - and

18 according to this description he killed these persons. And the

19 prosecutor suggests that this is the crime of murder under Article 36,

20 paragraph 2. And if the court establishes that this crime was committed,

21 could the trial judge decide to give the crime a different qualification?

22 A. My answer is identical to the previous answer. Every indictment

23 is a separate act and of course it is possible to change the legal

24 qualifications should the court find that the evidence warranted a change

25 in the qualifications. So my answer is the same.

1 Q. Now, please look at number 4, document 1975. Here there is

2 stealing of property from abandoned houses and it has been qualified as

3 aggravated theft. Would your answer be identical in a situation when the

4 judge sees this description? Was he the one who decided what

5 qualification he would give to the offence or was it someone else?

6 A. Again, my answer is identical to the previous two. The only

7 person who would have the final say regarding the legal qualification

8 would be either an individual judge or a Trial Chamber, which means the

9 court or the judge. They had the final say.

10 MS. RESIDOVIC: [Interpretation] Mr. President, I see the time. I

11 think it's time for the break. Could the witness be allowed to keep this

12 binder of documents to look through them so that we can save some time

13 later on? Thank you.

14 JUDGE ANTONETTI: [Interpretation] Yes.

15 Judge, you will have a rest but during the break you will have an

16 opportunity to look through the documents at the same time. It is half

17 past 10.00 and we will resume at about 5 to 11.00.

18 --- Recess taken at 10.31 a.m.

19 --- On resuming at 11.00 a.m.

20 JUDGE ANTONETTI: [Interpretation] The hearing is resumed. I give

21 the floor again to Defence counsel.

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

23 Q. Judge Ahmetovic, will you please look at the judgements under

24 chapter 4. In this group of documents please look at documents under

25 number 1, which is a judgement of the high court in Zenica, K12/93, dated

1 the 14th of May, 1993; document number 2, which says DH155; which --

2 document number 7; then document number 3 which says "District military

3 court in Zenica," K212, dated the 4th of August, 1993; document number 4

4 which says at the top "1367"; then document number 5, DH155; document

5 number 9; the document number 6 which says at the top DH155/12; the

6 document number 8, entitled "High court in Zenica case 67/93," dated the

7 27th of January, 1994; document number 9; a document number 13 -- 155/13;

8 document number 10 with the document DH155/14.

9 If you had occasion to look through the remaining documents, my

10 question would be first: In these documents --

11 JUDGE ANTONETTI: [Interpretation] Yes, the Prosecution.

12 MR. NEUNER: The Prosecution doesn't wish to interrupt but wishes

13 to note that the documents 1, 3, 4, and 8 are provided only in the B/C/S

14 version today and documents 1 and 8 are new documents. Thank you very

15 much.

16 JUDGE ANTONETTI: [Interpretation] As far as possible, can the

17 Defence draw the attention of the witness to a particular part of the

18 judgement in view of the fact that they are in B/C/S so that the

19 Prosecution can know what is the object of the question and so that we as

20 Judges can appreciate the relevance of the question.

21 MS. RESIDOVIC: [Interpretation] I have told you that, Mr.

22 President. And before we started examining the previous witness, I think

23 we had a discussion on this matter. If a document is in B/C/S only, I

24 shall draw the attention to the witness to the part of the document I

25 wish him to comment on.

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1 Q. Since the witness has looked at these documents which were given

2 to the Prosecution a few days ago, could he tell me whether he recognises

3 some court documents and if so, which does he recognise.

4 A. During the break I reviewed the documents given to me by

5 colleague Residovic. I do recognise these documents of course. These

6 are judgements following trials. I must note that these are judgements

7 of several courts for a period from 1993 to 2000. These are judgements

8 of the high court in Zenica, the district military court in Zenica, the

9 district military court in Travnik, and even the cantonal Zenica court

10 which is the currently active court. The higher court in Zenica no

11 longer exists nor do these district military courts exist.

12 In view of the judgements of the high court of Zenica and even

13 judgements of the district military court in Zenica is something [as

14 interpreted] I would not like to comment on except for these two

15 judgements. I can tell you why I'm familiar with them. One is the

16 judgement of the cantonal court in which I took part together with

17 colleague Veseljak as a trial judge, and this is a judgement dated from

18 2000, number K67/00, 12th of March, 2000. So I'm very familiar with this

19 judgement and this event because I participated in the trial.

20 I'm also very familiar with the judgement of the district

21 military court of Zenica IK606/94, dated the 21st of December, 1994. I

22 do know Ajanovic, Fahrudin, the suspect, because I carried out the

23 investigation for this criminal case.

24 And I'm also familiar with the judgement of the higher court in

25 Zenica, K194/96, dated the 20th of March, 1997, against the accused Rasid

1 Dzafic. This is a case I investigated while the direct military court in

2 Zenica was still operational. However, after the first-instance

3 judgement of the district military court in Zenica the same judgement was

4 rescinded by the Supreme Court of the republic. And after the district

5 military court was abolished, this case was judged by the Supreme Court.

6 That is why I am familiar with these three judgements.

7 MS. RESIDOVIC: [Interpretation]

8 Q. My questions will not relate to persons and events. I will just

9 ask you to answer some questions you have already testified about and

10 perhaps the documents you have in front of you could serve as

11 illustrations. So the first judgement, which is in B/C/S only and it is

12 a judgement number K12/93 of the higher court in Zenica with respect to

13 the Hazim Maglic, the third accused. Would you look at the explanation

14 on page 10 in the middle of paragraph 3 in which the court judged the

15 circumstances of this event and it is stated in the middle.

16 And with respect to the accused Maglic, Hazim, the court found as

17 mitigating that he was a member of the Army of Bosnia and Herzegovina

18 before he committed the criminal offence, that he was wounded as such,

19 and that a part of his left lower leg was amputated.

20 I'm asking you, in view of the fact that this case was tried by a

21 regular court though he was a member of the army, is this an example of

22 what you referred to, saying that regular courts were responsible for

23 members of the army if he was a co-perpetrator with a civilian of a

24 particular offence?

25 A. Yes. That is the kind of situation I referred to. Mr. Maglic,

1 at the time he committed the offence, was a member of the BH army but he

2 was tried by a regular higher court in Zenica in view of the fact that

3 one or two of the other accused were civilians. And according to the

4 provisions of the law we mentioned, the jurisdiction belongs to the

5 civilian court. I don't know whether I need to comment on all that is

6 stated here. These are just the mitigating facts. The fact that he was

7 a member of the BH army and that he was seriously wounded as a result of

8 which his leg was amputated; this was evaluated as a mitigating offence

9 and requires no further comment.

10 Q. Thank you. In all these judgements contained in this part of the

11 materials there are certain descriptions of the events and there is a

12 legal qualification. My question for you, Judge, is whether this is how

13 the court decided on the facts in question. How were these facts legally

14 qualified? And this is something that confirms your testimony so far.

15 Was it the court that determined a correct qualification of the act in

16 question?

17 A. Since I'm familiar with most of these judgements, I could say

18 that this is a good example of how the court worked. They weren't bound

19 by the legal qualification contained in the indictment. They established

20 the facts at the trial. And on the basis of these facts, they provide

21 this factual description and the legal qualification for which someone

22 was proclaimed guilty.

23 Q. Judge, could you tell me whether the trial seized of the case

24 could amend the factual description of the prosecutor against the

25 accused?

1 A. No.

2 Q. Judge, tell me, since we have now examined a number of legal

3 qualifications of certain events which have been characterised as

4 aggravated robbery, theft, or murder, could you tell me whether crimes

5 such as murder, theft, violence inflicting physical wounds, et cetera,

6 also had the characteristics of war crimes against the civilian

7 population in accordance with the criminal law adopted from SFRY. And if

8 that was the case, can you tell me why judges decided to qualify these

9 acts in the way they were qualified in the documents we have examined.

10 A. If I remember correctly the exact number, that's Article 142 of

11 the criminal law of the former SFRY, according to this article a

12 reference was made to a war crime against the civilian population.

13 Certain criteria had to be met if such a crime was to be established --

14 for example, murder, theft, torching property, kidnapping, et cetera. I

15 can't remember all the details, but everything that you have just

16 mentioned in question in that part of the criminal law, this is something

17 that has to be determined. One has to determine whether such crime has

18 been committed or not.

19 I really cannot say now how the Prosecutor qualified certain

20 acts, whether he qualified them as the crime of murder, looting,

21 aggravated robbery, or theft. I couldn't say why he did not qualify such

22 acts as war crimes, but -- in fact, I think that the answer is simple

23 because in the course of establishing the facts, in the course of the

24 investigation, the prosecutor determined that a war crime had not been

25 committed. A murder had been committed in the course of war. And when

1 there is an imminent threat of war in the case of murder, aggravated

2 robbery, looting, theft, and in case of war crime, there were certain

3 prescribed sentences or the sentences prescribed were almost identical.

4 The death sentence could be handed down for such crimes. But the answer

5 is that the prosecutor, on the basis of the facts established in the

6 course of the investigation, determined that the crime committed was the

7 crime of murder and not a war crime.

8 Q. Earlier on you said that when you received a request to carry out

9 an investigation, you as the investigative judge tried to determine

10 whether what the prosecutor had stated was in fact the case or whether a

11 crime of another kind had been committed and this is what the trial would

12 decide. Do you remember whether you as the investigative judge or

13 perhaps a trial chamber or the Supreme Court, did they ever inform you in

14 some way that the legal assessment shouldn't be provided as an lex

15 specialis but it should be qualified as a war crime? Do you remember any

16 such decision by an investigating judge, the Supreme Court? Did anyone

17 inform you of the fact that the description of a crime concerned -- of

18 the crime in question was wrong, was erroneous in the course of the war?

19 A. In the course of my career and in the district court in Doboj and

20 in Zenica, I really never came across such a situation, the situation

21 that you have mentioned. The Supreme Court or a branch of the Supreme

22 Court of the Republic Bosnia-Herzegovina never suggested in one of its

23 decisions that the crime concerned wasn't the crime of robbery but that

24 it was a crime that was in fact a war crime. I never came across such

25 decisions from the Supreme Court. Nor were there any objections to that

1 effect. You must bear in mind that in the course of a trial the party

2 had the right to complain, the accused had the right to complain, or the

3 suspect had the right to complain, or even the prosecutor. Given such

4 legal remedy, if -- I don't remember the Chamber or the Chamber of the

5 Supreme Court having taken the sort of decision that you have been

6 mentioning.

7 Q. Since the accused and their defence counsel probably appealed

8 against certain judgements, against the ones, for example, that we have

9 just examined, tell me with regard to the application of law what was the

10 position of the second-instance Supreme Court? If the law had been

11 violated, could that be appealed or did the Supreme Court had to deal

12 with such cases ex officio?

13 A. Although the parties could appeal and indicate such violations,

14 they could do this on the basis of law of Yugoslavia -- rather, of the

15 Republic of Bosnia and Herzegovina. But in this case the Supreme Court

16 of the Republic of Bosnia and Herzegovina had to deal with this ex

17 officio. Even though the parties didn't indicate that the law had been

18 violated, they had to examine such cases. The Supreme Court of the

19 Republic of Bosnia and Herzegovina through its decision had to inform the

20 Chamber that heard -- handed down a judgement that they had violated the

21 law in some way.

22 Q. Judge, could the military police have any influence regardless of

23 their rank in such matters?

24 A. No military units, no civilian institutions, no one else in this

25 specific situation influenced or could influence the work of the court,

1 of the prosecutor's office, or the district military court in Zenica, or

2 the district prosecutor's office in Zenica and the Supreme Court of the

3 Republic of Bosnia and Herzegovina. This couldn't happen.

4 Q. Judge, since you have said that you worked as an investigative

5 judge, could you tell us about the number of cases instituted against

6 members of the Army of Bosnia and Herzegovina during that period.

7 A. In the district military court in Zenica I arrived there on the

8 25th of October, 1993; I was then appointed as an investigative judge. I

9 received such files. And if I'm not mistaken, up until November I think

10 that I dealt with over 200 cases. That was up until the end of 1993.

11 And it's fascinating to say that in the course of 1994 I had over 1.300

12 cases. Most of them, perhaps 95 per cent of those cases, concerned ABiH

13 members.

14 Q. For what sort of acts were ABiH members prosecuted? And can you

15 tell me whether you knew what the position of the army was with regard to

16 its members respecting the law?

17 A. At the beginning of my testimony I already said that the Zenica

18 district military court could try members of the military for any crimes

19 covered by the criminal law of the Republic of Bosnia and Herzegovina at

20 the time. There were no exceptions in that respect. It's now difficult

21 to say what sort of crimes were concerned, the crimes that were processed

22 by the Zenica district court. But for crimes such as murder, looting,

23 aggravated theft, which are the most serious ones; then there were also

24 traffic accidents in which people were lightly or seriously wounded. But

25 all forms of crimes were covered.

1 Q. Judge Ahmetovic, could you now have a look at the document under

2 section 5. Section 5, number 4. The number of the document is 1555.

3 This document is only in B/C/S. Could you please read the title of the

4 document? Have you found the document?

5 A. Yes.

6 Q. Could you please read the title of the organ that issued the

7 document, the number of the document. And what is the subject of this

8 document?

9 A. The organ that issued this document is the district military

10 court in Zenica. The number of the document is SU; this means court

11 administration, SU. 247/93, dated the 12th of December, 1993. The

12 subject is a brief analysis of the results of the work from the 1st of

13 January up until the 10th of December, 1993. I don't think I remember

14 this document very well, but the purpose of this document was to point

15 out that the situation was really alarming in the district court in

16 Zenica as far as logistical support is concerned and technical equipment

17 and all other equipment necessary for the work -- for work in the

18 district court in Zenica.

19 MS. RESIDOVIC: [Interpretation] Mr. President, I do apologise but

20 we have just noticed that document 1555 is already in evidence. The

21 Defence number is DH274, so could the Trial Chamber please be provided

22 with this document because we also have an English translation of this

23 document and this will make it easier for us to put questions to the

24 witness. I think my colleagues have this document and the document in

25 question is DH274.

1 Q. While my colleague's looking for this document, could you please

2 read out the fourth and fifth paragraph in the document. You can read it

3 out aloud and I only have one question that I'd like to put to you about

4 this paragraph -- about these paragraphs. "In the course of the year."

5 That's how the fourth paragraph starts: "In the course of the year a

6 total of" ...

7 Could you read that out, please.

8 A. "In the course of the year a total number of criminal cases

9 (indictments) have been received. 432 which concerned 89 individuals.

10 250 cases have been solved with -- concerning 573 individuals. 182 cases

11 haven't been dealt with; that concerns 296 individuals."

12 Paragraph 5: "In this course 512 requests for investigations

13 were received concerning 1.346 individuals. And during this course, 339

14 cases were solved with 844 individuals. This includes cases from 1992

15 which were dealt with in 1993. 172 cases haven't been solved concerning

16 502 individuals. 13 cases from this period -- 13 cases are from 1992 and

17 that concerned 32 individuals."

18 THE INTERPRETER: Could the witness slow down when reading.

19 MS. RESIDOVIC: [Interpretation]

20 Q. Judge Ahmetovic, are these numbers that indicate the volume of

21 work that the district military court had to deal with in 1993, that's

22 the period that this brief analysis is concerned with?

23 A. Yes.

24 Q. Judge, could you please have a look at document under 3. The

25 number of the document is P771, and could you tell me whether you're

1 familiar with this document.

2 A. Yes, I am familiar with this document. This was drafted by the

3 president of my cantonal court in Zenica. And I participated in drafting

4 this document. I helped my -- the president of the court with providing

5 this information. I think it was a request -- it concerned a request

6 from the prosecutor from that tribunal. I'm well familiar with this

7 document.

8 Q. Judge, on the second page of this document in paragraph 4 it says

9 that with regard to ABiH members according to the evidence of the court

10 not a single case has been dealt with during the period concerned, not

11 during the period during which the court was in existence.

12 Since you drafted this document at the request of the

13 prosecutor's office of that tribunal, could you tell us what this

14 concerns. We have just had a look at a document which deals with a

15 number of cases in 1993.

16 A. Well, I think that the subject of this document is a report on

17 how many were processed for war crimes by the district military court in

18 Zenica. And the comment made by the president of the judge [as

19 interpreted] in paragraph 4 probably has to do with that. According to

20 the court's evidence, no cases have been processed that concern ABiH

21 members during the period concerned and during the existence of the

22 court. This means in front of the district Zenica court not a single

23 ABiH member was prosecuted for a war crime. And that's all that this

24 paragraph has to do with. I don't see what else it could concern.

25 Q. Colleague Ahmetovic, after the war as an investigating judge or

1 as a judge of the cantonal court, did you in any point in time come

2 across cases linked to events in Dusina that may have been processed and

3 forwarded to the court?

4 A. After the cantonal court in Zenica was formed in June 1997, I

5 held the position of investigating judge. And for the following two

6 years, I was judge for administrative disputes. And from the end of 1999

7 and the beginning of 2000, I became an investigating judge again

8 primarily for criminal offences of war crimes. And I'm familiar with the

9 case you're referring to, the case of Dusina through a case that I

10 investigated as an investigating judge. And that case, to the best of my

11 recollection, was forwarded to the cantonal court in Zenica by the

12 cantonal court of Central Bosnia, that is from Travnik. And by their

13 decision they declared themselves incompetent and forwarded the file to

14 Zenica. And a month or two later in accordance with the Roman rule root,

15 the cantonal court received approval from the prosecutor's office that it

16 may process one person which The Hague's prosecutor's office classified

17 as category A. So on the basis of documents provided by Travnik to the

18 prosecutor's office in The Hague, the prosecutor found that only for Edem

19 Hakanovic is there specific evidence that a person had committed a war

20 crime against the civilian population under Article 153 of the Criminal

21 Code of the Federation of Bosnia and Herzegovina. And approval was given

22 to the cantonal court in Zenica to process the case against this person.

23 I haven't finished yet.

24 After the court received such permission, the prosecutor's office

25 in Zenica filed a request for an investigation against this person, and

1 this request was addressed to me. And I acted in the case in the way

2 I've already described.

3 Q. Let me go back a little. In -- as a judge in 1993 and 1994, tell

4 me: As a judge could you in any way -- was there any way for you to go

5 to the territory under HVO control to carry out any kind of

6 investigation, examination, to interview a person, to detain a person;

7 and secondly, could any state bodies, the civilian police, the military

8 police, or any other state body, could they exercise any kind of

9 jurisdiction over that territory?

10 A. My answer will be very brief. There was absolutely no

11 possibility for me as an investigating judge or for anyone else to go to

12 the territory under HVO control. And even if any such possibility

13 existed, I can guarantee with certainty that I wouldn't be able to return

14 from that territory because I would have been arrested.

15 Q. Thank you. In that same territory, whether we're talking about

16 Vitez, Busovaca, or Novi Travnik, could anyone else undertake certain

17 actions, interview people, conduct proceedings? If the legal organs of

18 the Republic of Bosnia and Herzegovina or the judicial organs or organs

19 of the army and police were unable to engage in any such action, could

20 anyone else?

21 A. In answer to this question I shall go back again to the case of

22 Dusina that you mentioned a moment ago. And on the basis of that case I

23 realise that the territory under HVO control had all civilian and police

24 and judicial organs established. Among others, there was the higher

25 public prosecutor's office of Travnik, as it was called, based in Vitez.

1 And that prosecutor's office in collaboration with the police could have

2 acted and undertaken all the steps that our court and prosecutor's office

3 could undertake in territory under control of ABiH. And on the basis of

4 this particular case, I came to the conclusion that in the period of 1993

5 and 1994, those bodies had processed this case, Dusina, in the sense of

6 filing a request for an investigation and a criminal report. And all

7 this is part of the file.

8 Q. Finally, Judge Ahmetovic, will you look at document number 8 at

9 the end of this set of documents that you have in front of you. It is

10 number P906. Have you seen this document before?

11 A. This document is one of the documents that was and still is part

12 of the file entrusted to me in the investigation procedure against Edem

13 Hakanovic. And I noticed immediately that this request for an

14 investigation is dated November 1995. So in relation to the event, it

15 was almost two years later that this case was processed through the

16 higher public prosecutor's office in -- of Travnik based in Vitez.

17 Q. Will you please look at the second page of the Bosnian and

18 Herzegovinian version where it says that there's reasonable grounds to

19 believe that the offences charged were committed. There's also a date

20 when the police filed criminal reports against these persons. Will you

21 tell me when criminal reports were filed by the bodies who did have

22 access to all the injured parties. It is the one-but-last paragraph on

23 page 2.

24 A. The date of the filing of the criminal report is the 9th of

25 November, 1994. That too is a date that made me wonder why this criminal

1 report was not filed the very moment when the damaged parties crossed

2 into the territory under the control of the HVO. This criminal report

3 was filed almost ten months after the event, or rather one year and ten

4 months later.

5 Q. And my last question to you. Judge Ahmetovic, will you please

6 tell me, when you looked -- look at the delays made by organs who had

7 access to all the parties, what is your judgement today of the work of

8 the security organs of the ABiH that was active in your region? With

9 what efficiency, celerity, and responsibility did these bodies act in

10 dealing with the duties? And from today's viewpoint, would you say that

11 they could have done more and that the courts could have been even more

12 efficient?

13 A. If you -- one takes into account all the reports of district

14 military court in Zenica from 1992 until 1996 and the fact that I and my

15 family were living within the territory of Zenica and my familiarity with

16 most of the events that took place in the area, I believe that all law

17 enforcement bodies, including the district military prosecutor's office

18 in Zenica, the higher public prosecutor's office, the municipal

19 prosecutor's office, the civilian police, the military police, the

20 military security organs in lower units from battalions through brigades

21 and corps, I believe that the personnel in those institutions in view of

22 the conditions in which they worked were absolutely efficient in the way

23 they discovered perpetrators and processed them.

24 In view of all that, these cases were processed timely [as

25 interpreted] by the police, by the military security bodies, the

1 prosecution, and the courts. In view of the conditions under which we

2 worked and lived, I think that very high marks can be given to all these

3 institutions in crime prevention. The number of cases processed and the

4 number of persons involved speaks for themselves, showing to what extent

5 the personnel in these institutions and the institutions themselves

6 contributed to [as interpreted] greatest ability and crime prevention. I

7 think it is difficult and quite inappropriate now to compare the work of

8 those institutions. I see that in this one case there was considerable

9 delay in processing on the part of organs under the HVO. So I can't say

10 anything favourable about this particular case, and that is the only case

11 I can compare with. But in any way, there's no comparison with the

12 efficiency of bodies in territory under the control of the ABiH.

13 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President. I have

14 completed by examination of this witness.

15 JUDGE ANTONETTI: [Interpretation] Has the other Defence team any

16 questions?

17 MR. IBRISIMOVIC: [Interpretation] Mr. President, we do have

18 several questions for Judge Ahmetovic.

19 Cross-examined by Mr. Ibrisimovic:

20 Q. [Interpretation] Judge Ahmetovic, I will ask you several

21 questions which are perhaps more of a technical nature. You were

22 investigating judge from the 25th of October, 1993, until -- for as long

23 as the district military court in Zenica was operational. My question

24 relates to the way in which interviews were conducted with a suspect

25 after a request for an investigation had been filed.

1 Mr. Ahmetovic, your obligation as an investigating judge after

2 receiving the request for an investigation is to hear the accused. Isn't

3 that right?

4 A. Let me be precise. The duty of the investigating judge,

5 according to the law on criminal procedure, is to examine the suspect.

6 Q. In such a situation when you're examining the suspect, do you

7 file a report on that examination? Do you compile a report?

8 A. That was our duty according to the law on criminal procedure.

9 Q. When compiling those minutes, you first indicate the identity of

10 that person and his particulars. Is that right?

11 A. Yes. First the identity of the person is indicated on the first

12 page of the minutes. There may be some 20 or 25 personal data linked to

13 the identity of the suspect, and these are written down in the minutes.

14 And while I was working in Zenica, there was a certain format for those

15 data which fully corresponded to the provisions of Article 213 of the law

16 on criminal procedure.

17 Q. Judge Ahmetovic, when compiling those minutes did you have to

18 note the persons present while examining the suspect?

19 A. That also is an obligation provided for by the law. And on the

20 first page of the minutes on the examination of the accused or the

21 suspect, one had to note down all those present during the interview. So

22 my name had to be -- had to figure as the investigating judge the name of

23 the record-keeper, and also the presence of the accused, his name,

24 whether his counsel was present, and if so, his name. And finally, the

25 presence of the competent prosecutor who had filed the request for an

1 investigation.

2 Q. Judge Ahmetovic, when compiling those minutes, did you caution

3 the accused as to his rights according to the law?

4 A. That, too, is the duty of the investigating judge, stipulated by

5 the law on criminal procedure. And neither I nor any other judge ever

6 failed to familiarise the suspect with his rights and duties. If we

7 hadn't do that -- if we didn't do that, we would be in violation of the

8 law.

9 Q. For the needs of the Trial Chamber, could you describe the actual

10 procedure in which this statement was taken. Do you make a record of

11 that statement as part of his free will, or do you do it in some other

12 way?

13 A. The statement taken from a suspect is taken in such a way that

14 the suspect is first informed what the charges against him are and what

15 the grounds are to suspect him and what criminal offence he's being

16 charged with, upon which the suspect is invited in his own words to

17 describe the course of events in the way the suspect sees it; upon which

18 the judge may ask one or several questions merely in order to clarify the

19 facts through the statement of the suspect. After that, the defence

20 counsel can ask the suspect questions, as can the prosecutor if he is

21 present at the interview.

22 And once the minutes have been completed, the suspect is informed

23 that he has the right to read those minutes, to make any objections, if

24 any; or if the person doesn't wish to read it, he accepts it as such and

25 signs it, which was obligatory, that is for the suspect to sign the

1 minutes. Of course this document also had to be signed by the

2 investigating judge and the note-keeper, though during the war this was

3 not always the case. But as a rule, he should sign it as well.

4 Q. My final question is whether the suspect had to sign every page

5 of the minutes.

6 A. Yes. This is also an obligation based on the law on criminal

7 procedure. The suspect had to sign not only each page of the minutes but

8 any part of the minutes. If in the text there was a gap or there was a

9 new line that commenced, the suspect had to sign that part too, in order

10 to make sure that these gaps weren't abused, in order to make sure

11 nothing was added to his statement after he signed it. The suspect would

12 prevent anything from being added by signing these parts.

13 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President.

14 Could Mr. -- could Judge Ahmetovic be shown P941 [Realtime transcript

15 read in error: "491"]. I'm not going to go into the truth or falsehood

16 of the contents of this document. I just would like to hear whether

17 these minutes were drafted in accordance with the law on procedure.

18 JUDGE ANTONETTI: [Interpretation] It is P941.

19 MR. IBRISIMOVIC: [Interpretation] P941.

20 JUDGE ANTONETTI: [Interpretation] It's 941. We must correct the

21 transcript.

22 MR. IBRISIMOVIC: [Interpretation] Mr. President, with your leave

23 could this document be shown to the witness.

24 JUDGE ANTONETTI: [Interpretation] Just a minute. Let's just have

25 a look at the Bosnian version.

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7

8

9

10

11

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

13 English transcripts.

14

15

16

17

18

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20

21

22

23

24

25

1 I see that the Prosecution is rising to its feet -- no.

2 MR. IBRISIMOVIC: [Interpretation]

3 Q. Judge Ahmetovic, can you just have a look at the document -- the

4 minutes, and could you say whether it's been drafted in accordance with

5 the law on criminal procedure and do you recognise the name of the judge.

6 I wouldn't want to go into the contents.

7 A. This is what we have spoken of. I've had a look at this record

8 on interview of the accused. There are some shortcomings, but according

9 to what I can see it has been drafted in accordance with the provisions

10 of the law on criminal procedure. It is true that certain details are

11 missing. For example, it doesn't say where this gentleman who was

12 questioned as a suspect is from. And then it doesn't say -- it doesn't

13 provide a description of the crime. It doesn't say when the interview

14 commenced, but these aren't errors that would prevent one from using

15 these minutes in the course of proceedings. For example, there are

16 certain places where the signature I mentioned does not appear. But in

17 all other respects, these minutes have been correctly drafted and one

18 could say that the minutes were drafted in accordance with the law. I

19 know that the investigative judge, unfortunately this colleague of ours

20 is now deceased; he died two months ago. He worked with me at the

21 cantonal court in Zenica.

22 Q. When you have a look at the minutes you can see that the accused

23 signed each page.

24 A. Yes.

25 Q. Perhaps you didn't notice, but Article 150 of the criminal law

1 has been mentioned here.

2 A. Yes. It doesn't mention the crime concerned, but this is not a

3 reason for which one could not use the minutes; I've already said that.

4 But the article concerned is 150, and we all know that Article 150

5 concerns robbery.

6 Q. Thank you very much, Judge Ahmetovic.

7 MR. IBRISIMOVIC: [Interpretation] I have no further questions,

8 Mr. President.

9 JUDGE ANTONETTI: [Interpretation] I will now give the floor to

10 the Prosecution for their cross-examination.

11 MR. NEUNER: Before we start, the Prosecution just wishes to make

12 a note in relation to the witness summary that was provided to us

13 according to Rule 65 ter: It did not contain any reference to Dusina.

14 Cross-examined by Mr. Neuner:

15 Q. Good morning, Mr. Ahmetovic. My name is Mathias Neuner and

16 together along with my colleagues, I'm representing --

17 JUDGE ANTONETTI: [Interpretation] Just a minute.

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

19 JUDGE ANTONETTI: [Interpretation] Defence.

20 MS. RESIDOVIC: [Interpretation] With regard to objection, as in

21 the case of all the other documents that were shown to the judge, it

22 wasn't shown to discuss the event; it was shown to the witness to discuss

23 the procedure. That is why -- the document that concerns Dusina was only

24 shown in order to ask the judge questions about how judges acted in

25 accordance with the law.

1 JUDGE ANTONETTI: [Interpretation] Thank you for this information.

2 You may proceed.

3 MR. NEUNER:

4 Q. Good morning, Mr. Ahmetovic. My name is Mathias Neuner. And

5 along with my colleagues here I'm representing the Prosecution in this

6 matter. I'm going to put a couple of questions to you. If you don't

7 understand them, please ask me to repeat or to rephrase them and I will

8 do so. Do you understand this?

9 Turning to Dusina which was mentioned a few minutes ago. Dusina

10 after the events in January 1993 was under ABiH control and remained

11 under ABiH control throughout 1993. Are you aware about this?

12 A. No. I'm not aware of whose control it was under because during

13 that period when the events took place in Dusina, I was working as a

14 judge in the district military court in Doboj. At the time, I wasn't

15 familiar with this. I only found out about what had happened in Dusina

16 through my case, which I dealt with as an investigative judge in the year

17 2000. This was in the cantonal court in Zenica. So I was able to read

18 about this case at the time, just like you or any other judge could read

19 about it.

20 Q. So thank you for this clarification. So I take it from your

21 answer only in 2000 you were temporarily concerned with this issue and

22 you weren't familiar in whose hands, or let's say under whose control,

23 Dusina was in 1993 or 1994. Is this correct?

24 A. I wasn't interested any case. I said that when the events took

25 place in Dusina in January 1993 I was a judge at the district military

1 court in Doboj and I had no information about the events or about the

2 inhabited place called Dusina. I didn't know who lived there, nor did I

3 know what their nationality was, nor did I know where the village was.

4 All I knew was what I found out in the year 2002 and not in the year of

5 2000. It was in 2002 that I was assigned that case and all I know about

6 it is on the basis of the documents contained in the material that

7 everyone has access to.

8 Q. You mentioned a special military court in relation to Ilijas. If

9 I may turn your attention to the 3rd Corps area of responsibility. Were

10 there any such special military courts created in the 3rd Corps area of

11 responsibility in 1993 to your knowledge?

12 A. When answering that question, the question put to me by the

13 Defence, I was quite clear. That's the only case that I as a judge am

14 familiar with in the territory of Bosnia and Herzegovina that a military

15 unit formed that military court. I have no other information that such a

16 court was formed in the territory controlled by the ABiH.

17 Q. You testified in June 1993 you had problems to return and you got

18 stuck in Zenica, and you also stated that you started working for the

19 Zenica district military court on the 25th of October, 1993. In between

20 June and 25 October, 1993, did you perform any functions or tasks in

21 Zenica or in the 3rd Corps area of responsibility?

22 A. No. Unfortunately I was with my family. We had no food, no

23 clothes, no footwear, nothing. We didn't even have a flat, and this

24 lasted for three or four months. But never mind; this is all behind us

25 now.

1 Q. Then in late 1993 when you joined the Zenica district military

2 court, and then in 1994 you were primarily an investigative judge but you

3 were also duty judge. If you look back now, in the average in 1993 and

4 1994, how much of your monthly work hours would you perform

5 investigations and how much of how much of your time would you serve as a

6 duty judge?

7 A. To be clear I'll have to explain something. Throughout the

8 period that I was at the military court in Zenica from the 25th of

9 October, 1993, up until the 1st of July, 1996, throughout that period I

10 was officially appointed as an investigative judge and I performed the

11 duties of an investigative judge. But in addition to that role it was

12 only when the Presiding Judge appointed me as a duty judge that I acted

13 as a duty judge, and that was the case for all the other judges in the

14 Zenica court. There were between five and eight judges there, and each

15 judge would have to act as a duty judge for one week. So apart from the

16 fact that I was an investigative judge, I also acted as a duty judge when

17 it was necessary to carry out on-site investigations or to carry out

18 urgent investigations that could not be postponed. And this is what all

19 the other judges did, too, and this even included the president of the

20 court.

21 Q. You just mentioned again on-site investigations. Were these

22 on-site investigations exclusively done by the duty judge or could also

23 investigative judge be sent or visiting on -- doing an on-site

24 investigation?

25 A. Don't confuse the two roles. The investigative judge or the role

1 of the investigative judge is a position that one is appointed to by the

2 presiding judge. It can be an annual appointment or it can be permanent.

3 These other activities are only temporary activities. I, for example,

4 was an investigative judge throughout the entire period of time, but I

5 was a duty judge only when assigned this role. We would receive

6 particular decisions from the Presiding Judge stating that someone was to

7 act as a duty judge for a certain period of time.

8 Q. I understand this. But my question was: The on-site

9 investigations, were they exclusively done by duty judges or also by

10 investigative judges?

11 A. I don't know how well you will understand me. All of us in the

12 court had our regular appointments. I was never a trial judge. I never

13 participated in trials. My colleague Mladen Veseljak who was here

14 yesterday never carried out any investigations because I was

15 investigative judge. But we were both duty judges. And whatever Mladen

16 Veseljak did as an investigative judge, I did, too, as a duty judge. So

17 don't confuse the role of an investigative judge and the role of a duty

18 judge.

19 Q. Who did on-site investigations, which judge?

20 A. The duty judge.

21 Q. Thank you. When the duty judge would perform such an on-site

22 investigation, would he usually have already some advance notice about

23 what he will see, in terms of did he receive a criminal report at this

24 early stage in time already?

25 A. Naturally. When the judge is informed that this has been an

1 incident, he will decide whether or not to go to the scene or not, but

2 only on the basis of the information that the duty judge has been

3 provided with by a person or by an institution. Usually in the case of

4 the military district court in Zenica it will be the military police

5 battalion that will provide them with such information. After going to

6 the scene they will gather certain information and provide that

7 information over the phone or in some other way to the duty judge. The

8 duty judge will then decide whether a crime had been committed or whether

9 it was just something that didn't need to be processed. The duty judge

10 could then issue an order to members of the military police battalion to

11 inform the duty prosecutor.

12 JUDGE ANTONETTI: [Interpretation] Stop there, please.

13 Defence counsel is on its feet. I think that the witness is going too

14 fast.

15 MS. RESIDOVIC: [Interpretation] Judge Antonetti, we thought there

16 was a minor error, but since this has been going on for a while I think

17 we should deal with this problem. We haven't been able to follow the

18 transcript for a while now.

19 JUDGE ANTONETTI: [Interpretation] Mr. Judge, could you please

20 speak a little more slowly because the questions are important and it's

21 necessary for everything to be interpreted. If you speak too fast it

22 will be difficult for the interpreters to follow you.

23 MS. RESIDOVIC: [Interpretation] Mr. President, there's also a

24 technical problem. The computer is not working; it's frozen. There is a

25 technical problem.

1 JUDGE ANTONETTI: [Interpretation] Very well.

2 My screen isn't working either; it hasn't been working since the

3 beginning. I only have one which is functioning out of the two that I

4 have.

5 [Trial Chamber and registrar confer]

6 MR. NEUNER: Mr. President, I'm suggesting --

7 JUDGE ANTONETTI: [Interpretation] As we'll be having our break in

8 ten minutes, perhaps we can continue until the break and deal with the

9 technical problems.

10 Does the Defence have the English transcript before them? No.

11 Well, then we have a problem. It would be best to have our break now and

12 we will resume at 25 to 1.00. It's now 12.10, and we will resume at 25

13 to 1.00. Let's hope that by then the problem will have been solved.

14 --- Recess taken at 12.11 p.m.

15 --- On resuming at 12.38 p.m.

16 JUDGE ANTONETTI: [Interpretation] The hearing is resumed. Is the

17 Defence able to read the transcript on their screens?

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

19 we can.

20 JUDGE ANTONETTI: [Interpretation] In that case, the Prosecution

21 can continue. We will work until a quarter to 2.00 without any breaks.

22 MR. NEUNER:

23 Q. Mr. Ahmetovic, the building of the district military court in

24 Zenica was approximately 150 to 200 metres away from the Zenica music

25 school. At the beginning of your tenure as --

1 MS. RESIDOVIC: [Interpretation] Mr. President, I object. During

2 the examination-in-chief, I did not mention the music school.

3 JUDGE ANTONETTI: [Interpretation] Very well. The Defence tells

4 us that during the examination-in-chief she did not make any mention of

5 the music school.

6 Why is the Prosecution referring to it? You must have a good

7 reason. Can you tell me what it is?

8 MR. NEUNER: Mr. President, according to the rules the

9 Prosecution is or has the right to put its case to the witness and

10 certainly there were some incidents in relation to the Zenica music

11 school. And also later on in relation to Varos I also intend to ask at

12 least a few general questions in relation to the Zenica music school and

13 later to Vares, just since it is our case that allegations were there and

14 maybe they were investigated.

15 JUDGE ANTONETTI: [Interpretation] I shall give the floor to the

16 Defence in a moment. If I understand the Prosecution correctly, it is

17 the position of the Prosecution that within the framework of the

18 cross-examination they may ask the witness questions relating to the

19 charges contained in the indictment. And the Prosecution tells us that

20 in their submission they are entitled to ask the witness questions about

21 the music school or about what happened in Vares. What has the Defence

22 to say? Because now we are faced with a legal problem.

23 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. Our

24 position is that the cross-examination of this witness and any witness

25 has to be within the scope of the examination-in-chief. The

1 examination-in-chief to my understanding had to do with procedure and the

2 way in which the district military court operated. Let us not forget

3 that the witness was a judge on the 25th of October, 1993, as he

4 mentioned many times. So our position is that the Prosecution is not

5 entitled to ask the kind of questions our learned friend intimated he

6 would.

7 JUDGE ANTONETTI: [Interpretation] And the other Defence team?

8 MS. RESIDOVIC: [Interpretation] Mr. President, I already said

9 that questions related to the music school cannot be put to the witness,

10 as this was not touched upon in the examination-in-chief. I also did not

11 mention any other events, particularly not in Vares. And I fully support

12 the arguments of my colleague. We have here a judge who can give us more

13 detailed information of the role of the courts. Anything beyond that, I

14 think, goes beyond the scope allowed for the cross-examination.

15 JUDGE ANTONETTI: [Interpretation] Before giving the floor to the

16 Prosecution to respond, reading Article 90(H)(i). I'm going to read it

17 slowly.

18 "The cross-examination shall be limited to the subject matter of

19 the evidence in-chief, matters affecting the credibility of the witness

20 and where the witness is able to give evidence relevant to the case for

21 the cross-examining party, to the subject matter of that case."

22 So the subject matter relates to the subject matter of the

23 evidence in-chief affecting the credibility of the witness and also

24 subject matter relevant to the case for the cross-examining party. So

25 that is what Rule 90(H)(i) says. So in the light of what has just been

1 said, what are the submissions of both parties? What are the positions

2 of both parties? Mr. Dixon?

3 MR. DIXON: Your Honour has referred to the provision that is

4 entirely on point. In our submission however, Your Honour, there is in

5 addition to looking at part 1 a need to go further to look at part 2 of

6 (H), and that reads as follows - because in our submission this second

7 part qualifies the first part of Rule 90(H) - where it says that: "In

8 the cross-examination of a witness who is able to give evidence relevant

9 to the case for the cross-examining party," so that would be -- the

10 Prosecution is saying this witness can give evidence relevant to their

11 case.

12 And this is the important part for us, Your Honours: "Counsel

13 shall put to the witness the nature of the case to the party for whom

14 that counsel appears which is in contradiction of the evidence given by

15 the witness."

16 So in our submission part 2 qualifies part 1 by saying, yes, you

17 can ask questions relevant to the case of the cross-examining party, but

18 only if the witness has given evidence which needs to be contradicted;

19 then the Prosecution would be entitled to put their case to that witness.

20 In this instance, the witness has not given any evidence about the music

21 school or about Vares. So under (H)(ii), in our view, the Prosecution

22 should not be allowed to put their case because there's nothing to

23 contradict; the witness hasn't given any evidence in that regard.

24 And in our submission, this rule is designed specifically to

25 allow he either party to put their case if something has come up which

1 they need to contradict, but not to re-litigate their case again. So

2 that would mean the Prosecution had an opportunity in their case to call

3 this witness if they thought he had relevant evidence and they could have

4 then led that evidence as part of their case. Now it's the Defence case.

5 They can only ask questions that we have raised in examination-in-chief

6 or to contradict something the witness has said, not to raise new topics.

7 Those are our submissions on the way in which the rules should be

8 interpreted. Thank you, Your Honours.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Dixon.

10 The other Defence counsel.

11 MS. RESIDOVIC: [Interpretation] We fully support the

12 argumentation provided by our colleague, but -- which means that the

13 Prosecutor can be allowed to cross-examine in accordance with the

14 provisions of 90(H)(ii). We don't see how the Prosecutor may be allowed

15 to ask the question that he has just put to the witness.

16 JUDGE ANTONETTI: [Interpretation] I shall give the floor to Mr.

17 Mundis in a moment. In the light of what has been said by the Defence,

18 they do not contest the scope of Article 90(H)(i), but they specify that

19 concerning the case of the Prosecution, the Prosecution case, this is

20 regulated by the next paragraph (ii) which says:

21 "In the cross-examination of a witness who is able to give

22 evidence relevant to the case for the cross-examining party, counsel

23 shall put to the witness the nature of the case of the party for whom

24 that counsel appears which is in contradiction of the evidence given by

25 the witness."

1 Which means that the witness must have made a statement about a

2 certain matter and the Prosecution has other evidence and then it can put

3 it to him. We have already discussed this matter and I see that the

4 debate is continuing.

5 Mr. Mundis.

6 MR. MUNDIS: Thank you for the floor, Mr. President. The

7 Prosecution has just a couple of issues to put before Your Honours that

8 arise from what my learned colleagues from both Defence teams have said.

9 Mr. President, as you've indicated and as the Chamber is clearly aware,

10 this issue has arisen on a number of occasions. Our position remains

11 that Rule 90(H)(i) is an independent basis upon which the

12 cross-examination may be undertaken and that Rule 90(H)(ii) covers a

13 slightly different type of situation, where a witness has said something

14 which is contradicted by or is contrary to the other -- the

15 cross-examining party's case. But let me just address you on two other

16 issues if I might.

17 In the annex, I believe it's Annex A of the Hadzihasanovic

18 Defence 65 ter package, this witness was listed as being someone who

19 would talk about measures taken, that is point 30, "Measures Taken."

20 Clearly the Defence have said that the witness testified about procedural

21 matters and court matters, and that is beyond doubt. However, the fact

22 remains, Mr. President, that this witness's office -- the court he worked

23 for was responsible for investigating and prosecuting offences. There

24 has been evidence that that court was located within 200 metres of one of

25 the alleged crime scenes in this case.

1 Our position -- or the underlying theory of our position has

2 always been that the party calling a witness should not be in a position

3 to control the evidence given by that witness if that witness has other

4 relevant information that needs to be put before the Trial Chamber. So

5 our submissions would be that, number one, Rule 90(H)(i) is simply the

6 overarching cross-examination provision, which governs what may be the

7 subject of cross-examination. Point two, the witness was called with

8 respect to measures taken to investigate and prosecute offences. And

9 point three, we believe the witness may have some relevant evidence to

10 put before this Trial Chamber with respect to one of the alleged crime

11 scenes that was within 200 metres of the courthouse where this witness

12 worked.

13 JUDGE ANTONETTI: [Interpretation] I shall give the floor to the

14 Defence once again. The Prosecution tells us that a slightly different

15 reading should be done of (i) and (ii). The Prosecution feels that the

16 second paragraph is an independent paragraph which has no link to the

17 previous paragraph. Also, the Prosecution tells us that in the document

18 providing its obligations under 65 ter, there is a paragraph 30 according

19 to which it is possible to put questions linked to paragraph 30. Also

20 the Prosecution tells us that we have a witness who might be able to

21 contribute to the truth due to the very fact that in his previous post he

22 might have been in a position to look into certain matters.

23 I give you the floor.

24 MS. RESIDOVIC: [Interpretation] Mr. President, since both parties

25 have made their submissions I must say that we tend to say "As many

1 lawyers, so many opinions." But I have absolute trust in Your Honours to

2 make their own interpretation. This is not the first time that we have

3 come across this debate, and each time the Trial Chamber ruled in favour

4 of the position submitted by the Defence. Referring to our summary, this

5 witness in fact did describe all the measures taken, how many criminal

6 proceedings were processed -- were processed, that more than 95 per cent

7 of those cases were initiated by the police battalion of the 3rd Corps,

8 and that most of the accused were members of the Army of Bosnia and

9 Herzegovina. So our summary does not deviate in any way from the

10 testimony of this witness.

11 We must -- as for the comment that the Prosecution could have

12 called this witness during its case, they could have done that. It is my

13 conviction that criminal proceedings cannot be conducted in such a way

14 for the Prosecution to go beyond the scope of the rules of

15 cross-examination to use a Defence witness to support their case. And

16 this would be contrary to the spirit of a fair trial. If the Prosecution

17 felt this witness could have been useful for them, they could have called

18 him.

19 JUDGE ANTONETTI: [Interpretation] Mr. Dixon.

20 MR. DIXON: Your Honour, just one piece of additional information

21 which I do think is important, and that this witness was indeed on the

22 Prosecution list to be called as a Prosecution witness to testify. And

23 I'm looking at their Rule 65 statement to testify about all of the counts

24 in the indictment. But he was withdrawn as a witness. Your Honours may

25 recall some discussion about that when a number of Prosecution witnesses

1 were withdrawn; he was one of those witnesses and it was decided by the

2 Prosecution at that stage not to call him. And leave was granted by Your

3 Honours to withdraw this witness at that point, together with a number of

4 other witnesses. There was a statement taken from this witness by the

5 Prosecution dated 2 October 2003 where it was abundantly clear what his

6 position was, and at that point the Prosecution was in a position to

7 pursue these matters if they had wanted to.

8 In our submission that would have been the proper course. And

9 according to the rules, they cannot now seek to call a Prosecution

10 witness through the Defence case to talk about topics that are relevant,

11 they say, to their case. Our reading of the rule would be that it's

12 quite plain from the language that paragraph (ii) follows on from

13 paragraph (i) and is meant to clarify and explain it further. That is

14 why the paragraph (ii) starts with the wording "In the cross-examination

15 of a witness who is able to give relevant evidence," referring directly

16 back to the last line of paragraph (i) and showing the clear link to

17 provide a further detailed explanation of how to interpret the rule.

18 Those are our submissions. Thank you, Your Honours.

19 JUDGE ANTONETTI: [Interpretation] I'll give the floor again to

20 Mr. Mundis and we will withdraw to deliberate. However, regarding the

21 point that the Prosecution did plan to call this witness, I remember that

22 several witnesses at the last moment were withdrawn and were not called

23 to testify with reasons that were given at that time. I think this was

24 one of the witnesses who was withdrawn at the very last moment. Maybe

25 this was to speed things up for reasons of economy; I don't know. Maybe

1 Mr. Mundis can explain if he wishes to, but he's not obliged to do that.

2 MR. MUNDIS: Thank you, Mr. President. That decision was taken

3 in -- I don't recall the specific date, but it was sometime around --

4 between the 17th and 20th of May the discussion was had with respect to

5 withdrawing witnesses, and we did discuss that during that time period.

6 And I don't want to go back into that issue, other than pointing, Mr.

7 President, the Prosecution could have theoretically called a large number

8 of witnesses and for a wide variety of reasons chose not to do so,

9 including the resource and temporal reasons Your Honours has just alluded

10 to.

11 Let me come back to a couple of things the Defence said. With

12 respect to rule 90(H)(i) and (ii) I think the positions of the parties

13 have been clearly explained. There is also Rule 90(H)(iii) which perhaps

14 also in light of the Defence position follows on to permit the Chamber to

15 permit additional inquiry into matters at the discretion of the Chamber.

16 But there are two other points that very quickly I want to put

17 before you. The Trial Chamber will recall that beginning with the very

18 first witness called by the Prosecution in this case, the scope of the

19 cross-examination permitted to the Defence was extremely broad. And

20 during the first few weeks of the trial, the Prosecution objected when

21 the Prosecution called witnesses to talk about, for example, events in

22 Dusina and the cross-examination concerned event in Ahmici, for example.

23 The Trial Chamber ruled, in effect, for the Defence, permitting them the

24 widest possible latitude to cross-examine the witnesses brought by the

25 Prosecution.

1 And the final point I need to make, Mr. President, is that with

2 respect to Rule 90(H)(ii) and in fact cross-examination in general, we

3 quite often need to lay a foundation in order to ask the witness the

4 questions. At the beginning of us attempting to lay such a foundation,

5 the Defence will object. We simply don't know what the witness's

6 testimony here today on this point will be, but I will tell you one

7 thing: My colleague's cross-examination on events with respect to the

8 Zenica music school would have been over 10 or 15 minutes ago had he been

9 allowed to simply lay the foundation, ask the witness one or two

10 questions, and move on to the next topic. Thank you.

11 JUDGE ANTONETTI: [Interpretation] We're going to withdraw and

12 we'll be back as soon as possible.

13 --- Break taken at 1.01 p.m.

14 --- On resuming at 1.04 p.m.

15 JUDGE ANTONETTI: [Interpretation] The Chamber, after

16 deliberation, will render a new decision and I think it's the fifth

17 during this day and we still haven't come to the end of today's

18 proceedings.

19 Regarding the question raised by the Prosecution who wanted to

20 put a question to the witness linked to the music school, regarding this

21 question the Defence objected saying that the scope of the

22 cross-examination defined by Rule 90 does not allow the Prosecution to

23 question a witness on points which were not mentioned during the

24 examination-in-chief. The Chamber examined the merits of the arguments

25 submitted by both parties and feels that the Chamber up to now has had a

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1 highly liberal approach regarding the scope of questions put. And during

2 the hearing of Prosecution witnesses, the Chamber allowed the Defence

3 during their cross-examination to ask any questions that were useful for

4 the Defence. So we granted the Defence a very broad scope for their

5 cross-examination of witnesses.

6 Similarly, we have authorised the Defence and the Prosecution

7 during re-examination to ask questions within a very broad range. And

8 under those conditions, we feel there is no reason to prevent either

9 party to put questions which are useful for their cause. Also, based on

10 the provisions of Article 90(H)(iii) feels [as interpreted] that in the

11 position professional qualities of the witness, who was an investigating

12 judge at the time in the Zenica region, can in the very interests of

13 justice and in the interest of truth answer questions of a technical

14 nature related to his duties as a judge.

15 And in view of that, our decision is that the Prosecution may ask

16 the witness questions about the music school.

17 You have the floor, Mr. Mundis -- I'm sorry. Mr. Neuner. I'm

18 sorry.

19 MR. NEUNER:

20 Q. Mr. Ahmetovic, you have heard the reasoning of the Chamber. If I

21 may repeat my question. The district military court in Zenica was

22 approximately 150 to 200 metres away from the Zenica music school. At

23 the beginning of your tenure as district military judge at this court,

24 did you receive any criminal reports or requests to open investigations

25 relating to the Zenica music school?

1 A. To answer that question I have to go back to what I was saying at

2 the beginning. It's very important to point out that I arrived in Zenica

3 in the course of the war on the 23rd of June, 1993. That was the first

4 time I arrived there. And I was in Zenica without having a job up until

5 the 25th of October, 1993, nor did I have a military post. And believe

6 me, during that period I gathered potatoes to feed my family during that

7 period. And afterwards, throughout the entire war, I never heard about

8 the music school. It was only towards the end of the war or after the

9 war that I heard from colleagues and from friends that there was such a

10 music school, that something had happened in the music school or there

11 was something there. But during that period of time I really knew

12 nothing about the music school.

13 Q. I understand you heard from colleagues or friends after the war

14 about the Zenica music school. Just to clarify, during your work during

15 the war, you did not receive any complaint, any criminal record, or any

16 request to open an investigation in relation to the Zenica music school?

17 Just please confirm or deny.

18 A. No, I didn't receive any kind of a criminal report.

19 Q. You testified that until July 1994 the district military court in

20 Zenica was administratively attached to the Ministry of Defence. From

21 your perspective of an investigative judge, what did this mean for your

22 relationship to the 3rd Corps?

23 A. Nothing. We were neither subordinate to the 3rd Corps nor were

24 we above the 3rd Corps, or rather the 3rd Corps command. And the

25 3rd Corps command had no competence and no authority over us. We were an

1 independent court and we acted in accordance with the laws that were in

2 force at the time according to the code of criminal procedure, and no one

3 could meddle in the work of that court.

4 Q. And do I take it from your answer that also from the perspective

5 of the ABiH, the other perspective, the fact that the district military

6 court was administrated by the Ministry of Defence did also not concern

7 them very much; they very much respected basically this administrative

8 distinction.

9 A. Well, I don't see the point of that question. I'll repeat what I

10 have already said. We were only administratively attached to the

11 Ministry of Defence; that concerned the work of the court and the

12 appointment of judges. It didn't concern anything else. It didn't

13 concern logistics or anything else. We didn't receive support from the

14 Ministry of Defence nor did we receive support from the 3rd Corps

15 command. We were completely independent of all of them and even later

16 on, when we were under the Ministry of Justice. Not even then, apart

17 from the fact that judges were appointed or relieved of their duties.

18 Even then we were not really dependent on them.

19 MR. NEUNER: May I ask the usher to distribute the bundle of

20 documents which were prepared for this witness.

21 Q. Judge, I'm intending to show you a document which dates 20 June,

22 1993, and is signed by Mr. Hadzihasanovic. In the bundle in front of you

23 it's tab 2. It's Prosecution Exhibit P190. If you please look at tab 2

24 on the first page in the fifth paragraph, please. This is a document

25 signed by Mr. Hadzihasanovic and sent to all commands, OGs, and brigades,

1 and units, and relates to an exchange of 198 HVO prisoners detained at KP

2 Dom in Zenica. And do you find the fifth paragraph on page 1? If I may

3 read it to you --

4 A. Yes, please go ahead.

5 Q. It states here, and I quote: "The acts of arrest and taking into

6 custody and the filing of criminal reports completely rule out any

7 jurisdiction of the 3rd Corps command as the prosecutor's office and the

8 judiciary fall under the jurisdiction of the Ministry of Defence."

9 As I said, this relates to 189 HVO prisoners detained at KP Dom.

10 How do you, having read this paragraph, interpret this sentence? What

11 does it mean?

12 A. I must put this quite simply. I really don't know what the

13 author wanted to say. I don't understand. "The act of arrest and taking

14 into custody and the filing of criminal reports completely rule out any

15 jurisdiction of the 3rd Corps command as the prosecutor's office and the

16 judiciary fall under the jurisdiction of the Ministry of Defence."

17 I really can't draw any concerns from this. I don't know who it

18 concerns; I don't know whose jurisdiction it concerns; I don't know who

19 the detainees were; I don't know when they were detained, by whom, on

20 what basis. I really couldn't comment on this.

21 Q. So you say you cannot comment on this. Does this make at least

22 sense to you in any way? Or I'm just asking -- trying to explore what

23 could be meant here. Obviously the relationship to the Ministry of

24 Defence and its judiciary and the Prosecutor's office is mentioned here

25 by the 3rd Corps commander. But does it make any sense to you or would

1 you have formulated it differently?

2 A. Well, my comment might be that it's quite clear that the

3 3rd Corps command believed that if they had a prisoner or prisoners or

4 detainees, and when they handed over these individuals to the judiciary

5 -- to the military Prosecutor's office or to the military court, from

6 that point in time they no longer have any authority over those

7 individuals. I think that whoever drafted this document certainly

8 thought in this manner, because this meant that they no longer -- that

9 the 3rd Corps command no longer had the duty to take care of those

10 individuals. In 1993 a military judicial system had been established and

11 every citizen, every individual -- every individual in the 3rd Corps

12 command in a military unit had the duty to report anything they knew

13 about individuals to the judicial authorities, in this case to the

14 military judicial authorities. And this is the situation that is

15 concerned. And I think that the corps command acted quite correctly in

16 this case. They complied with the legal obligations. Once they had

17 reported a case to the organs, to the prosecution, to the police, to the

18 military court, and once the prosecutor's office or military court take

19 over these cases, the corps command has nothing to do as far as the case

20 is concerned; they have fully complied with their obligations.

21 Q. You were referring several times in your answer to the handing

22 over of detained prisoners. According to the headline here it says:

23 "Additional clarification regarding the exchange of prisoners from the

24 Zenica KP Dom." These prisoners appear to be still at the KP Dom.

25 I'm just asking you: From your perspective as an investigative

1 judge at the Zenica district military court, from what point in time

2 would you consider these prisoners to be handed over to you as a

3 representative of the judiciary? Would that be when they are still in

4 the Zenica KP Dom or would this be at a later point in time? I'm just

5 asking. When does this transfer, the handing over take place?

6 A. In this kind of situation it's important to be familiar with the

7 facts and to know when criminal proceedings are being instituted. Such

8 proceedings are instituted in accordance with the law on criminal

9 proceedings at the time once a decision has been taken to carry out an

10 investigation, a decision by the investigative judge. I have already

11 spoken about this in my testimony. Anyone detained in the KP Dom in

12 wartime situation. This doesn't mean that a criminal report has been

13 filed against such an individual. It doesn't mean that this individual

14 has committed a crime, a crime for which the individual should been

15 processed. If one of the military organs, the military security, or the

16 military police, or any of the other organs establishes that the

17 individual in question committed a crime, in such a case naturally a

18 criminal report will be filed with the competent civilian or military

19 prosecutor's office. Once the prosecutor's office has submitted a

20 request for an investigation and once the investigative judge has been

21 called to carry out an investigation and taken a decision on an

22 investigation, this individual is given the status of prisoner.

23 A decision determines that he will be held in detention and he

24 will no longer be held in the -- on the premises where he was kept

25 before. So there is a criminal procedure that must be followed in such

1 cases. If someone is in the KP Dom, this doesn't mean [as interpreted]

2 this is someone who has been detained and someone against whom criminal

3 proceedings have been instituted.

4 Q. So do I take it from your answer that from the point the

5 investigative judge or the judge of the district military court makes a

6 decision on the detention of the arrested person, then the

7 jurisdiction -- so to speak, who's responsible for this person --

8 switches over from the 3rd Corps to the district military court. Is this

9 correct? Can you just clarify.

10 A. You can't link this to the responsibility of the 3rd Corps. If

11 someone's in the KP Dom, it doesn't mean that the 3rd Corps arrested the

12 individual and took him there. The civilian police might have arrested

13 the individual. It might be an ordinary civilian in question. And

14 perhaps it hasn't been established that he has committed a crime.

15 Naturally there was such cases, too, but once the individual arrested by

16 members of the 3rd Corps is in the KP Dom and then after he has come to

17 me as an investigative judge, I take a decision on carrying out an

18 investigation and on establishing detention. From that point in time, he

19 is no longer the responsibility of the 3rd Corps, the military security

20 of the 3rd Corps, or the military police battalion of the 3rd Corps.

21 Q. Thank you for clarifying this. I want to take you to on-site

22 investigations. In 1993 the territorial jurisdiction of the Zenica

23 district military court ended westwards at the municipality border

24 between the municipality board between there and Travnik. Please confirm

25 that all towns, villages and hamlets in Travnik municipality fell under

1 the jurisdiction of the Travnik military court and not under the

2 jurisdiction of the Zenica district military court.

3 A. I can't provide you with the provide answer to that question

4 because I do know at one point in time, perhaps later on, a district

5 military court in Travnik was established. I really can't remember when

6 this was done nor do I remember how the territory was divided. And I no

7 longer know which territory the Travnik military court had under its

8 jurisdiction and which territory was under the jurisdiction of the Zenica

9 military court. I really can't answer that question.

10 Q. Do you recall that Judge Adamovic once tried to carry out an

11 on-site investigation in the region of Ovnak, Brajkovici, Grahovcici and

12 Susanj, and this on-site investigation related to the death of 15 to 20

13 persons in June of 1993?

14 JUDGE ANTONETTI: [No interpretation]

15 MS. RESIDOVIC: [Interpretation] Mr. President, in accordance with

16 your decision I believe that the witness should first be told about when

17 something took place, since the witness became a judge on the 25th of

18 October. This will help us to avoid asking questions if the questions

19 concern matters that the witness can't be familiar with.

20 JUDGE ANTONETTI: [Interpretation] Yes. In fact the witness said

21 he arrived in Zenica on the 23rd of June, 1993. He spent a certain

22 period of time without any resources. And it was only on the 25th of

23 October, 1993, he assumed his post. So he can't answer questions about

24 events that took place before the 25th of October, 1993.

25 Yes, the Prosecution.

1 MR. NEUNER: One of our members, Mr. David Re, has taken a

2 statement of the witness in 2003, November 2003, and this incident dating

3 indeed from June 1993 was mentioned by our today's witness. And this is

4 the only reason why I'm touching upon this. The Prosecution is fully

5 aware that Mr. Ahmetovic was certainly not performing his role as an

6 investigative judge at the Zenica military court at the time, but since

7 Judge Adamovic was his colleague from October 1993 onwards, he might have

8 mentioned something to the witness and that's the only reason why I'm

9 asking it. I can rephrase my question.

10 JUDGE ANTONETTI: [Interpretation] Please go ahead and put your

11 question to the witness and we will see.

12 Q. Mr. Ahmetovic, you've heard the objection. You started your

13 professional work at the district -- Zenica district military court in

14 October 1993. Did at any point in time -- did you learn at any point in

15 time thereafter after an on-site investigation carried out by Judge

16 Adamovic in June of 1993 in the area of Ovnak, Brajkovici, Grahovcici,

17 and Susanj?

18 A. As far as this question is concerned, I really don't remember

19 when I first heard about that. I did speak to my colleague, Mr.

20 Adamovic; I think that was towards the end of the war. We usually meet

21 like that in the afternoon and speak to each other about various events.

22 Perhaps he mentioned that event, too.

23 But the only reliable information I have about the event is the

24 fact that I examined that document when the Prosecutor from this Tribunal

25 photocopied all the documents from the district military court in Zenica,

1 various documents, various records, and I think that I had this in my

2 hands on that occasion. And it was only then that I found out some sort

3 of truth about the event as to whether my colleague, Adamovic, carried

4 out an investigation or not. All I know is there was some sort of an

5 official note in which he said that individuals had been identified in

6 the hospital. It wasn't necessary or it wasn't possible to carry out an

7 on-site investigation because there was ongoing combat and one couldn't

8 guarantee security. But I think my colleague, Mr. Adamovic, could

9 provide you with the best information on this matter. Because as I have

10 already said, at that time I was gathering potatoes for my child.

11 Q. So do you recall that -- from the official note that Mr. Adamovic

12 was able to visit or not? You said there was combat going on. I'm just

13 trying to clarify.

14 MS. RESIDOVIC: [Interpretation] Mr. President, the judge was

15 here; the document is in evidence. Having heard the witness's answer, I

16 don't believe it's necessary to insist on putting additional questions to

17 this witness.

18 JUDGE ANTONETTI: [Interpretation] Yes. Why is the Prosecution

19 persisting? What are you trying to establish? The witness said that

20 during this period of time he had other concerns and perhaps later on he

21 spoke about this affair. But he doesn't seem to be able to provide us

22 with any other information. But perhaps you have a reason for putting

23 this question to the witness again, a reason which we don't understand

24 immediately.

25 MR. NEUNER: I'm prepared to move on, Your Honours.

1 Q. You came to the district military court in Zenica in late October

2 1993. Have you ever been sent to Vares for purposes of an on-site

3 inspection in November 1993?

4 A. No.

5 Q. Has any of your colleagues at the Zenica district military court

6 been sent to Vares for an on-site inspection?

7 A. I haven't access to the documents from the Zenica district

8 military court. Perhaps there was such an event during that period of

9 time. And as a result, one of my colleagues might have had to go to

10 carry out an on-site investigation in Vares, but I really couldn't answer

11 that question. That was the initial period of -- that was during the

12 first few days in the court in Zenica.

13 Q. Did you yourself ever investigate a murder case in relation to

14 Vares around the 7th -- happening around the 7th of November, 1993?

15 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. Our

16 objection is that the question put by the Prosecutor is beyond the scope

17 of the charges. We discussed the matter yesterday, so we don't believe

18 that questions concerning a murder case should be put to the witness

19 because this is not referred to in the indictment.

20 JUDGE ANTONETTI: [Interpretation] Yes. Defence counsel says that

21 there are no murders mentioned in the indictment; that's quite evident.

22 And why ask the witness a question about such an event?

23 MR. NEUNER:

24 Q. I may only ask: Can you confirm that there was jurisdiction by

25 the district military court in Zenica over Vares in November 1993?

1 A. It's very difficult to answer that question. It's very difficult

2 to answer that question. Which period in November are you -- do you have

3 in mind? Because I know what happened in one part of the month of

4 November and what happened in another part of the month of November in

5 the town of Vares. So, please, could you specify the exact period that

6 you have in mind.

7 Q. From the very beginning of November 1993 I believe the ABiH was

8 moving towards Vares around the 3rd of November onwards. So from the

9 very beginning of November 1993, was there jurisdiction of the district

10 military court in Zenica over Vares?

11 A. As far as I know, up until the time that ABiH members entered the

12 town of Vares itself, I think that was between the 4th and the 8th of

13 November, 1993, but before that period of time I never entered the town

14 of Vares, nor was I called there for any reason. I don't know whether my

15 colleagues went to Vares, but after the ABiH units had entered the town

16 of Vares, the first time I went to the town of Vares was on the 15th of

17 May, 1994, give or take a day. But it was certainly during that period.

18 Q. In your capacity as investigating judge, did you once investigate

19 a weapons charge case against a foreigner called Hamzala?

20 A. I cannot remember the exact date, but I do remember that person;

21 that was his pseudonym, Hamzala. He was brought to the district military

22 court in Zenica. I think that the charge was linked to unlawful

23 distribution of weapons as far as I can recall. And I think the case

24 still exist in the archives of the Zenica district military court. I'm

25 afraid I can't remember the other details.

1 Q. Just -- you said you cannot remember exactly the point in time

2 when a person called Hamzala was coming. Could you just give an

3 approximate time period. Was it shortly after you arrived at the Zenica

4 district military court or a couple of months or even a year after you

5 arrived? Do you recall?

6 A. I really cannot give you the date with any greater precision. I

7 don't think it was in the first period after I arrived. I think it was

8 later. But I'm not sure. I would have to look at the logbook of the

9 Zenica district military court to be sure, but I think you can do that

10 yourself.

11 Q. Which unit or which members of the military police did bring Mr.

12 Hamzala? By which organs was he brought in?

13 A. I really cannot remember that. I think the answer to the

14 question can be found if it is possible to look through the archives of

15 the Zenica district military court. These should be in the cantonal

16 court, and perhaps this file could be found through the registry book,

17 probably also the other documents which would tell you who brought the

18 person to the court and what happened after that. I'm afraid at this

19 point in time I'm unable to comment about it.

20 Q. Just if I may refresh your recollection. You stated to Mr. David

21 Re in paragraph 11 of your signed statement that the military police had

22 arrested him and brought him to the investigating judges. So it was a

23 military police unit, I assume.

24 A. I will accept that part of my statement. If that is what I said,

25 then that is quite certainly what it was. Probably my recollection was

1 better then than today, because in the meantime something has happened

2 which I wouldn't like to refer to now so I may have forgotten things.

3 But I do accept that that is what I said and that is what it was.

4 Q. Did you interview Mr. Hamzala?

5 A. I think I -- as an investigating judge, I should have taken a

6 statement from him.

7 Q. Do you remember anything, what he said during that interview? To

8 which unit he belonged, or ...

9 In I just refresh your recollection. Also in paragraph 11 of

10 this statement taken by Mr. David Re you stated, and I quote: "He was a

11 member of a guerrilla detachment and I interviewed him. He spoke some

12 Bosnian."

13 A. But that was not the way you put your question to me. You asked

14 me what the content of his statement was, and I really don't know. But

15 what you said is quite right. I spoke to him as an investigating judge.

16 I took a statement from him, and I remember that he had such an accent --

17 he had an accent.

18 MR. IBRISIMOVIC: [No interpretation]

19 THE INTERPRETER: Could we ask counsel to speak into the

20 microphone. We are having a problem hearing him.

21 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, it's working

22 now.

23 THE INTERPRETER: Mr. President, microphone.

24 JUDGE ANTONETTI: [Interpretation] Would you please approach your

25 microphone.

1 MR. IBRISIMOVIC: [Interpretation] Thank you. I can repeat that

2 we have quite a different translation. It was misquoted from David Re's

3 statement. It says in our version that Hamzala was a member of "a

4 guerrilla detachment," not "a detachment of guerrilla."

5 And something else I wanted to mention, what Peter Hackshaw on

6 the 28th and 29th of June said as a witness. He said that for the needs

7 of the Prosecution he looked through the registrar of the Travnik and

8 Zenica military courts, and he testified here that they have an analysis

9 of all the cases processed by those courts. Therefore, I think in

10 putting their questions about cases the Prosecution is confusing us a

11 little bit with their questions, whereas they have all the information at

12 hand.

13 JUDGE ANTONETTI: [Interpretation] The Prosecution. You have

14 heard the remarks of the Defence, which have two points. One is linked

15 to a problem of translation. The reading of the Defence appears to

16 indicate that when Mr. Hamzala made his statement he said that he was a

17 member of a guerrilla detachment. There appears to be a problem of

18 translation there. And a second point when the Defence recalls that you

19 have all the files and that you're fully familiar with everything and

20 that they find it difficult to ask questions since they do not have the

21 information that you have. What would be your response?

22 MR. NEUNER: Regarding the first point, Your Honours, I'm

23 prepared to again read out the relevant part of the paragraph so that it

24 -- that the translators can for a second point in time translate the

25 English version into B/C/S. And this statement taken by Mr. David Re was

1 disclosed to both Defence counsels on the 14th of October, 2003, and it

2 was taken on the 2nd of October, 2003. So it was disclosed right after

3 Mr. Re returned to the building. I don't think that the Prosecution is

4 withholding any information here. I'm just asking Mr. Ahmetovic what he

5 alls from the encounter with Mr. Hamzala, that's all.

6 JUDGE ANTONETTI: [Interpretation] Will you read the paragraph

7 once again so that the interpreters can interpret and there should be no

8 ambiguity regarding the translation.

9 MR. NEUNER: The whole paragraph reads and states and I quote:

10 "I can remember one investigation against a foreign member of the

11 mujahedin nicknamed Hamzala for some weapons charge, I think buying or

12 selling, in late 1993 or early 1994. The military police had arrested

13 him and brought him to the investigating judges. He was a member of a

14 guerrilla detachment and I interviewed him. He spoke some Bosnian. I

15 think he was released from custody several days later."

16 JUDGE ANTONETTI: [Interpretation] We have heard the English text

17 regarding the translation. Any comments? No comments now?

18 MR. IBRISIMOVIC: [Interpretation] This quotation was differently

19 interpreted into Bosnian. It's not a guerrilla detachment but in

20 quotation marks there's guerrilla and then the word detachment. Perhaps

21 the witness could read it to us and explain it in Bosnian.

22 JUDGE ANTONETTI: [Interpretation] I see the time and as you know

23 there's another hearing in this courtroom. So we'll continue tomorrow.

24 It is best for us to stop there.

25 Unfortunately, Judge, for you or maybe fortunately, you will have

1 to be back here tomorrow morning for the hearing that will continue at

2 9.00 for the continuation of the cross-examination. And rest assured we

3 will complete your testimony tomorrow.

4 So we will now adjourn and resume tomorrow morning. Thank you.

5 --- Whereupon the hearing adjourned at 1.47 p.m.,

6 to be reconvened on Thursday, the 17th day of

7 February, 2005, at 9.00 a.m.

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