1 Tuesday, 4th May, 1999
2 (Closed session)
3 (The accused entered court)
4 --- Upon commencing at 9.02 a.m.
13 redacted pages 8929 8967 closed session
19 (Open session)
20 JUDGE CASSESE: The next witness is a judge,
21 and no measures for protection have been requested.
22 It's Mrs. Dijana Ajanovic.
23 I'm sorry. I don't remember who is going to
24 examine this witness in chief.
25 MS. SLOKOVIC-GLUMAC: I will be asking the
1 questions, but my colleague Radovic, if there are any
2 questions left unanswered, he will continue the
4 MR. PAVKOVIC: Mr. President, I will also be
5 asking some questions if there is some time to spare.
6 JUDGE CASSESE: She will be examined in chief
7 by Counsel Slokovic-Glumac and, if need be,
8 cross-examined by Counsel Radovic and Pavkovic. All
9 right. Thank you.
10 MR. PAVKOVIC: Mr. President?
11 JUDGE CASSESE: Yes.
12 MR. PAVKOVIC: I also propose that this
13 witness be examined as the Defence witness for Vlado
14 Santic, so I think that I should also be conducting the
15 examination-in-chief and not just cross-examination.
16 MR. RADOVIC: Mr. President, I also propose
17 this witness to be examined, so if there are some
18 issues left after my colleague Slokovic-Glumac examines
19 the witness, I will ask some questions.
20 JUDGE CASSESE: Yes, but then in the form of
21 cross-examination, only as cross-examination. That
22 means that you can't re-examine the witness after the
23 Prosecution's cross-examination.
24 MS. SLOKOVIC-GLUMAC: Mr. President, if I
25 may, this was a joint proposal for this witness to be
1 called. We did that previously. We stated the reasons
2 why we feel that this witness should be brought before
3 the Court. This was a joint motion by my colleague
4 Radovic and myself. For this reason, in fact, we were
5 allowed earlier to call joint witnesses. This is one
6 of the joint witnesses, and I do think that we have the
7 right to examination-in-chief.
8 JUDGE CASSESE: Yes, of course. We don't
9 intend in any way to curtail or restrict your rights,
10 but you should be aware that this will indefinitely
11 prolong our proceedings. On top of that, it may be
12 that the court witness to be called, (redacted),
13 might come only on Friday, so, therefore, we have a lot
14 of time constraints. I hope that you will bear in mind
15 the need to conduct proceedings in the most expeditious
16 way possible.
17 (The witness entered court)
18 JUDGE CASSESE: We will take a break at a
19 quarter to eleven for 30 minutes, but meanwhile, we can
21 Good morning, Mrs. Ajanovic.
22 THE WITNESS: I cannot hear.
23 JUDGE CASSESE: Can you hear now? Can you
25 THE WITNESS: Yes.
1 JUDGE CASSESE: Good morning. Would you
2 please make the solemn declaration?
3 THE WITNESS: I solemnly declare that I will
4 speak the truth, the whole truth, and nothing but the
6 JUDGE CASSESE: Thank you. You may be
7 seated, and I will call upon Counsel Slokovic-Glumac to
8 start her examination-in-chief, I'm afraid, for five
9 minutes only.
10 MS. SLOKOVIC-GLUMAC: Thank you,
11 Mr. President.
12 WITNESS: DIJANA AJANOVIC
13 Examined by Ms. Slokovic-Glumac:
14 Q. Good morning, Mrs. Ajanovic. Could you tell
15 us when you were born, where you live, and what you do?
16 A. I was born in Zenica, in Bosnia and
17 Herzegovina, on the 15th of September, 1953. I still
18 live in Zenica. I worked in various courts for 16
19 years, and since 1994, I have been an attorney.
20 Q. And you are still working as an attorney in
22 A. Yes, that's correct.
23 Q. Could you please tell us where you were
24 working in 1993?
25 A. In 1993, I was at the Superior Court in
1 Zenica as a judge. It is a court which has both first
2 instance and second instance jurisdiction, and at that
3 time, it had jurisdiction over 12 municipalities as the
4 appeals court and both as the first instance court. Do
5 I need to go into any more details?
6 Q. This court also had a criminal department and
7 a civil department?
8 A. Yes, that's correct.
9 Q. In which department were you employed at that
10 time, in 1993?
11 A. Up until September 1993, I worked in the
12 civil law department as a judge in the appeals chamber
13 for civil suits, and I was also working in the registry
14 dealing with the registrations of companies, the
15 entering those companies into the court register. As a
16 judge in the civil department, from time to time, I was
17 assigned as a member of a criminal trial chamber, so
18 until the autumn of that year, I sometimes worked in a
19 five-judge chamber dealing with serious criminal
20 offences. From September 1993 on, I have been assigned
21 to the criminal prosecutions department as an
22 investigating judge.
23 Q. In the former system, the qualifications for
24 a judge dealing with criminal cases or carrying out
25 investigations or working on civil lawsuits or in the
1 economic department, the qualifications were the same
2 for all of this?
3 A. Yes, that's correct. The requirements were
4 the same for any judge, regardless of the type of cases
5 you were dealing with.
6 Q. You said that in 1993, you took over the
7 criminal investigations department, and were you a
8 judge in the court of first instance or the appeals
10 A. In 1993, I worked as an investigating judge,
11 but I continued participating in the five-judge chamber
12 when needed. I was not a presiding judge in any of the
13 chambers in 1993.
14 Q. Could you please tell us whether you remember
15 the investigation under official number KI-229/93?
16 A. I do remember the investigation, but the
17 reference numbers of the cases were not important to
18 me, so I don't really remember the numbers. But since
19 we are here, I remember that this was an investigation
20 into the crimes committed in the village of Ahmici, in
21 the area of Vitez, the municipality of Vitez, to be
22 more precise.
23 MS. SLOKOVIC-GLUMAC: Mr. President, could we
24 take a break now because I would like to have the next
25 part continuously?
1 JUDGE CASSESE: Yes. A 30-minute break.
2 --- Recess taken at 10.45 a.m.
3 --- On resuming at 11.15 a.m.
4 JUDGE CASSESE: Counsel Slokovic-Glumac?
5 MS. SLOKOVIC-GLUMAC: Thank you,
6 Mr. President.
7 Q. Mrs. Ajanovic, could you please tell the
8 Court who is in charge of an investigation in our
10 A. In the system of Bosnia and Herzegovina, the
11 person in charge of an investigation is the
12 investigating judge. There are various kinds of
13 courts: municipal courts, and now there are cantonal
14 courts instead of the higher courts, so that both in
15 the municipal courts and the former high courts, now
16 the cantonal courts, there are investigating judges who
17 are employees of the court and who conduct
18 investigations independently.
19 Q. An investigation may then only be carried out
20 by an investigating judge?
21 A. Yes.
22 Q. Investigations include examinations of
23 witnesses; is that correct?
24 A. Yes.
25 Q. Can any other person interview a witness, so
1 that the statement can have force of evidence at the
2 main trial, apart from the investigating judge?
3 A. The witness can be interviewed only by an
4 investigating judge.
5 Q. Is this procedure of taking witness
6 statements or interviewing witnesses a very formal
8 A. This is highly formalised procedure, and it
9 is done in accordance with a special law, the law on
10 criminal procedure.
11 Q. And the record of the interview, does it have
12 force of evidence at the trial conducted pursuant to
13 any indictment?
14 A. I need to give a more detailed explanation.
15 Witnesses are interviewed in the course of an
16 investigation, and some other pieces of evidence are
17 also produced. The public prosecutor uses all this
18 evidence to decide at the end of the investigation
19 whether he will or will not file an indictment.
20 In addition to that, the records do have a
21 certain evidentiary value at the trial. In the course
22 of the trial, all the witnesses are examined again, and
23 if a witness does not remember his or her statement
24 given in the course of the investigation, he is
25 confronted with the record in order to remind him of
1 it. If the witness's statement at this stage differs
2 from the statement given before -- so it's not a matter
3 of whether he remembers or not; he is giving now a
4 completely different statement -- he is then asked what
5 is the reason for the difference between this current
6 statement and the previous statement, and if necessary,
7 he is shown his previous statement, which is recorded
8 in this record.
9 Q. At the trial, are only those parts of the
10 witness statement departing from or changing the
11 original statement written down, according to the
12 provisions of the law?
13 A. In the course of the trial, the statement
14 given by the witness at the trial is entered into the
15 record, so not only the parts which are different from
16 his previous statements, but his entire statement.
17 However, if the statement given by the witness at trial
18 conforms completely with his statement given in the
19 course of the investigation, then it needn't be entered
20 into the record, the transcript, again.
21 I have to add something. I did not conclude
22 my answer to the previous question.
23 Q. Go ahead.
24 A. The records made in the course of the
25 investigation, the records of the interviews conducted
1 with the witnesses, can be used as evidence during the
2 trial in certain cases. It is the case if a witness
3 has died in the meantime, if he has mental illness, if
4 he has developed a mental illness in the meantime, or
5 if he cannot be reached by the court; in other words,
6 if his whereabouts cannot be determined.
7 In cases involving persons who do not have to
8 testify, the spouse of the accused, his or her
9 relatives, up to the third degree -- three times
10 removed, so people who are directly or indirectly
11 related to him, then stepchildren and step-parents,
12 adopted parents and adopted children, then confessors,
13 religious confessors, if they do not attend the trial
14 to which they have been summoned or if they refuse to
15 testify, their records of examination cannot be used.
16 Q. This part is not so important to us, but when
17 you said that in certain cases a record given to the
18 investigating judge may be used as evidence without an
19 examination of a witness, and you said that these were
20 records made during an interview and later the witness
21 either dies or becomes mentally ill or cannot be
22 traced, do persons who refuse to testify at the
23 trial -- in other words, are their witness statements
24 used as evidence at the trial?
25 A. If we're dealing with persons who are not
1 bound to testify, their witness statements cannot be
2 used, their records cannot be used. And if a witness
3 refuses to give a statement, if a statement had been
4 given previously in the course of an investigation, the
5 court needs to take the situation into consideration
6 and to bring the statement given during the
7 investigation, bring it into relation with other
9 Q. I am asking you a very specific question: A
10 witness statement made by a person who refuses to
11 testify at the trial, can it be used?
12 A. Yes, it is used.
13 Q. Would you please tell us whether witnesses
14 giving testimony before an investigating judge are
15 warned that they have to tell the truth and that giving
16 false evidence is a criminal offence?
17 A. Every witness, prior to giving his statement,
18 is cautioned that giving false evidence is a criminal
19 offence and that he should not hold back any
20 information, that holding back information is also
21 considered as giving false testimony and that he could
22 be punished with imprisonment for that. It's a usual
23 procedure in courts. Every judge begins the
24 examination of a witness by cautioning the witness in
25 this manner.
1 Q. When you were conducting the investigation,
2 KI-229/93, did you act in the same way? Did you
3 caution every witness?
4 A. I cautioned every witness. I am used to this
5 procedure. It's impossible for me not to do that.
6 It's really ingrained, this procedure.
7 Q. Who issued the decision to carry out an
8 investigation? Was it you, or another investigating
10 A. I remember the decision on conducting an
11 investigation was issued by a colleague of mine.
12 Should I tell you his name?
13 Q. You can.
14 A. Mensur Hasagic. As far as I remember, he
15 questioned two or three witnesses. After that, I was
16 assigned to this case, and I continued interviewing
17 other witnesses proposed in the request for the
18 initiation of an investigation, which was submitted to
19 the court by the public prosecutor.
20 Q. Against whom was the decision on conducting
21 an investigation issued?
22 A. I do not remember all the names, since this
23 was a case that I dealt with in 1993, and it continued
24 for a while in 1994. When I left the court, I did not
25 take any documents relating to this case with me
1 because this is not usual procedure, to bring any of
2 those documents home. But I do remember the following
3 names: Dario Kordic, Tihofil Blaskic, Ignac Kostroman,
4 Pero Skopljak, Cerkez; I do not recall his first name,
5 Kupreskics; I don't remember whether there were two or
6 three of them on that request. I don't recall the
7 names -- in fact, I do know the names now, but I do not
8 recall the names from before.
9 Santicis, Bralo, Kraljevic, Papic -- well,
10 these are the names that I can remember at this
12 Q. Do you remember the file, were there any
13 official police records in the file, any records drawn
14 up by the then-State Security Service, the SDB?
15 A. The file contains everything that relates to
16 the case. First of all, from the Ministry of the
17 Interior, a criminal report is filed and is entered
18 into the file together with the supporting material.
19 These are the statements of persons who were questioned
20 preliminarily by the police, and that goes to the
21 public prosecutor, who decided on the basis of those
22 documents that there are grounds for suspicion that
23 persons who are then listed in the request, that they
24 did in fact commit the criminal offence. The public
25 prosecutor then writes and signs a document that is
1 called the request for the institution of an
2 investigation, which is then filed with the court, so
3 that all these documents are contained in one case
5 Q. And they all bore the same number, the number
7 A. They had their own individual numbers. The
8 reference numbers of the Ministry of the Interior are
9 different, but they were all in the same case file,
11 Q. Would you tell us how you invited or summoned
13 A. It was late autumn and winter of 1993/1994.
14 There was a war going on in Bosnia at the time, and of
15 course in Zenica too. The conditions were very hard.
16 We did not have electricity. From time to time our
17 water supply was cut. We did not have fuel for our
18 cars. We had too many refugees in the town and in the
19 surrounding areas, and it was difficult to trace them
20 to determine their address.
21 I issued written summons which were then
22 mailed to those people for whom I had the addresses
23 listed in the request of the prosecutor. For some
24 persons, there was no address listed, and in those
25 cases, I was assigned an official from the Ministry of
1 the Interior whose task it was to go to the areas, to
2 the villages in the area surrounding Zenica, and to ask
3 about the whereabouts of the witnesses.
4 Q. And that person brought the witnesses to you?
5 A. That person was able to find some of them,
6 but in most cases, he left the messages for those
7 persons, telling them that they should come to the
8 court. That person went there on foot. He did not
9 have a car. I asked some of the witnesses who came to
10 tell me where others were and also to relay the message
11 that they should come, so that they did come on the
12 basis of those oral messages.
13 Q. When a witness came to the court, did you
14 take their details?
15 A. Yes, I did take their details.
16 Q. Their personal details were entered into the
17 official form which has to be filled in when a witness
18 is interviewed?
19 A. That's correct.
20 Q. How was this record drawn up? Did you tell
21 the witnesses why they were summoned?
22 A. Yes, of course.
23 Q. Did they give their statements on their own,
25 A. The record was drawn up, first of all, very
1 patiently. Each witness that appeared was first
2 explained why they had been summoned, and they were
3 read the request of the public prosecutor for the
4 investigation. I read out all the names, and I also
5 read the brief explanation of the public prosecutor
6 indicating why this procedure is being done.
7 After that, I asked the witness to tell me
8 everything he or she knew about the events in his or
9 her village in the period from the 15th of April, 1993
10 and even before that and after that. They told their
11 own story. I interrupted them from time to time in
12 order to dictate for the record their statement. They
13 sat in front of me at a distance of about two metres,
14 and the size of the room in which we were was about 12
15 square metres.
16 Q. So they heard you dictating the record?
17 A. Yes. They told me their story, and I wrote
18 down what they said in pencil. So they were, in fact,
19 dictating it to me. I had to ask them to slow down, to
20 stop in order to be able to write everything down.
21 After that, I dictated that to the person who
22 typed it, to the typist who sat to my left. Each
23 witness was looking at me and listening to me. After I
24 finished dictating, actually, at the end when the
25 record was made, he was given the record to read and to
2 Q. Did the signing of the record follow
3 immediately after the dictation or was there a time
5 A. No. It all happened continuously in that
6 very same room. The witness never left the room until
7 such time when he looked at the record, read the
8 record, and signed it.
9 Q. You were present during the signing of the
10 record by the witness?
11 A. I gave them the record into their hands and
12 told them, "Please sign."
13 Q. Did they sign every page of the record or
14 just the last page?
15 A. The records were written on two sheets of A-5
16 paper, so it was one sheet of paper that was folded
17 up. If the statement was such that it needed to be
18 continued onto the third page -- but if it was only on
19 one page, then the signature was on that page.
20 Q. So each sheet of paper was signed, in fact?
21 A. Yes.
22 Q. Did you also sign the record and the person
23 who typed it out?
24 A. Yes, we all did. That's the usual procedure
25 for all records, not only in criminal proceedings but
1 in civil proceedings too.
2 Q. The signature of the witness means that the
3 witness made the statement. Does it also mean that the
4 witness agrees with the content of the statement?
5 A. Yes.
6 Q. Could you tell us whether you remember how
7 many witnesses you interviewed in this case?
8 A. I interviewed 20 to 30 witnesses. I really
9 cannot recall exactly. I am, in fact, sorry that I
10 haven't recorded that to take it with me, because I
11 haven't been an employee of the court for five years,
12 and I didn't go to the court to check these things
13 prior to coming here.
14 Q. Did you complete the investigation in this
16 A. No, I did not. In fact, partially, I did,
17 but I do know that the investigation continued
19 In late January, I assessed that I could not
20 locate any more witnesses and that I should advise the
21 public prosecutor thereof. At the same time, the
22 witnesses who gave their statements provided
23 information leading to some other names which were not
24 included in the request for the investigation. In
25 accordance with the procedure, the investigating judge,
1 in all cases, must advise the public prosecutor of any
2 such occurrence and leave it to him to decide whether
3 he or she would issue such a request for those new
4 persons and the new crimes. That was the reason why I
5 returned the case to the public prosecutor, so that he
6 could make the decision whether he would expand the
7 investigation to include these other persons.
8 Q. On the basis of whose statement did that
9 happen; do you remember?
11 I think that there were some other statements, but
12 really I cannot remember in such detail. It is in the
13 case file, I wrote a record about all this, and that's
14 why this record exists. That's the purpose of it.
15 Q. Very well. Now a general question. Is an
16 investigation mandatory for any criminal offence for
17 which imprisonment of over three or five years is
18 provided for by law? According to the Law on Criminal
19 Procedure, just answer "Yes" or "No," please.
20 A. Yes.
21 Q. Very well.
22 MS. SLOKOVIC-GLUMAC: Very well. Thank you
23 very much. I would now like to have a part of my
24 examination-in-chief in closed session because I need
25 to mention the name of a protected witness.
1 JUDGE CASSESE: Ms. Slokovic-Glumac, do you
2 need a closed session or a private session?
3 MS. SLOKOVIC-GLUMAC: A private session.
4 JUDGE CASSESE: Yes. Private session.
5 (Private session)
15 pages 8987 – 8995 redacted private session
19 (Open session)
20 MR. PAVKOVIC:
21 Q. So from September 1993, you were an
22 investigating judge?
23 A. Yes.
24 Q. May we conclude on the basis of what you say
25 about your court experience dealing with various kinds
1 of cases, including criminal cases, that you are a
2 person competent to hear criminal cases? In your
3 opinion, of course.
4 A. I passed my bar examination in 1979, and from
5 that time on, I was qualified to work as a judge and as
6 an attorney in all kinds of cases. Of course, work
7 experience is of great assistance to all of us, and of
8 course my colleagues who had been working for a long
9 time dealing with one kind of cases know more about
10 those cases than I do; but on the other hand, there are
11 persons who only start working but know more about
12 those things than some other people who have been
13 working for a long time. It's an individual thing.
14 It is my assessment that I was fully
15 qualified to perform the duties of an investigating
16 judge. As far as being a presiding judge in a court
17 chamber dealing with criminal cases, I did not want to
18 do that job, first of all because I'm a very emotional
19 person, and I did not feel that this job was suitable
20 for me, and that's why I became an attorney.
21 Q. Of course, I understand that this is a very
22 sensitive matter.
23 A. You can ask some more questions. Go ahead.
24 But I can say that examining witnesses before the court
25 is a routine matter for a judge such as myself. Before
1 that, I had questioned, interviewed, perhaps three or
2 four thousand witnesses in my previous cases, and it is
3 so simple, really, that there is no reason why I
4 shouldn't able to do it.
5 Q. Thank you very much. In case KI-229/93, you
6 heard, as you have already said, between 20 and 30
8 A. As far as I can remember, it's closer to 20
9 than to 30, but I really don't know.
10 MR. PAVKOVIC: Mr. President, I would now
11 like to go into private session, because I will mention
12 the name of a protected witness.
13 JUDGE CASSESE: Yes.
14 MR. PAVKOVIC: Thank you.
15 (Private session)
13 page 8999 redacted private session
13 redacted page 9000 – private session
13 redacted page 9001 – private session
9 (Open session)
10 Examined by Mr. Radovic:
11 Q. Could you please tell me, at the time the
12 record we're talking about was drawn up on the 17th of
13 December, 1993, what law on criminal proceedings was in
14 force in the Republic of Bosnia and Herzegovina?
15 A. At the beginning of the war in Bosnia and
16 Herzegovina, a considerable number of laws valid in the
17 Socialist Federal Republic of Yugoslavia had been
18 adopted as laws of the Republic of Bosnia and
19 Herzegovina, in accordance with the decision/decree
20 issued by the presidency of Bosnia-Herzegovina,
21 published in the Official Gazette, number 2/92.
22 Later on, these laws in the Official Gazette,
23 number 13/92, were confirmed as laws. Over a certain
24 period of time, they were called decree laws, and then
25 they became laws in the full sense of the word again.
1 Among those laws that had been adopted from the
2 previous state was the Law on Criminal Procedure. Some
3 parts of that law had been changed. Those dealing with
4 socialism and Yugoslavia, they were amended to include
5 Bosnia and Herzegovina.
6 Q. Yes, but these are not important points as
7 regards the law itself. What I wanted to ask was, were
8 anybody's rights reduced, particularly, the rights of
9 accused, in comparison with the Law on Criminal
10 Procedure because of the state of war or did the
11 pre-war law fully apply?
12 A. The Law on Criminal Procedure remained the
13 same, but in the course of the war, certain
14 extraordinary legal remedies have been abolished.
15 Q. But the investigation procedure remained the
17 A. Yes, the investigation procedure remained the
18 same; detention remained the same. Only the right to
19 an appeal against the indictment was abolished and
20 certain extraordinary legal remedies.
21 Q. In the introductory part of the record of the
22 17th of December, 1993, it says that criminal
23 proceedings are being instituted under Article 141 of
24 the Law on Criminal -- of the Penal Code.
25 A. That's genocide.
1 Q. What was the prescribed sentence?
2 A. That was five years to death penalty.
3 Q. And the old law was still in force?
4 A. Yes. It included death penalty.
5 Q. Now, the investigation file, when an
6 investigation has been completed and the public
7 prosecutor issues an indictment, what happens to the
8 investigation file? To put it more directly, is the
9 investigation file an integral part of the criminal
10 file or does it remain in the hands of the public
11 prosecutor only for his own information? Did you
12 understand the question?
13 A. Yes. I'm waiting for the interpretation.
14 The investigation file becomes part of the new file.
15 The investigation file is marked "KI," whereas the main
16 file, the criminal file, has the mark "K." When it
17 enters the trial stage, once the indictment has been
18 issued, the investigation files, together with its
19 folder, becomes a part of the criminal file.
20 Q. Would you agree with me that the
21 investigation file is ultimately an integral part of
22 the criminal file?
23 A. Yes.
24 Q. While an investigation procedure is under
25 way, does the investigation file contain every document
1 that comes into the hands of the investigating judge
2 during the investigation?
3 A. Yes.
4 Q. Is there any method of ensuring that all the
5 integral parts of the file are actually in the file or,
6 to be more precise, is there a system which shows that
7 a part of the file is missing, for example? If you
8 don't understand what I'm getting at, I'm referring to
9 the way the pages are numbered and the way the file is
10 put together.
11 A. In the court, the files are put together in
12 such a way that the last page is, in fact, the first
13 document, and other documents are then placed upon that
14 one and they are all glued together. If somebody were
15 to unglue a page, it would be obvious, but as a rule,
16 it should not be done. It must not be done.
17 Q. Yes. Well, what mustn't be done is one thing
18 and what is actually done is another. Can you tell me,
19 does every page have a number in the file?
20 A. In the folder containing the file, on the
21 left-hand side of the interior, there is a list of all
22 the documents, and therein, it is indicated under each
23 number which documents are contained, and each page
24 should be numbered. I have to admit that this is not
25 always done.
1 Q. Very well. But in any case, there is a list?
2 A. Yes, there is a list. There is also the
3 regulations on the internal operation of the courts
4 which really stipulates all this with great precision.
5 Q. The file KI-229/93, do you know where this
6 entire file ended up? This was after you had left the
7 court, of course.
8 A. I assume that it ended up here.
9 Q. So you consider that the entire file was
10 delivered to the Prosecutor's office of the
11 International Tribunal?
12 A. Yes, I assume so. I never asked anyone about
13 that, but in some unofficial discussions, when I went
14 to the court unofficially, I learned that this file was
15 being translated into English and that the file was
16 being prepared for its final delivery to The Hague.
17 Q. The entire file?
18 A. Yes. I assume that the entire file was
19 submitted here, but I would like to be shown all my
20 records to confirm whether these documents, these
21 records are mine. That may be of no interest to the
22 Court, but I would like to see, to confirm whether
23 these are my documents.
24 Q. With respect to this record, in December
25 1993, with reference to the person named previously,
1 did the Prosecutor of this Court conduct any
2 interview? Don't mention the name, please. The name
3 of the person who signed the record, please don't
4 mention it.
5 A. It is not connected to that person. In the
6 autumn of 1997, a person, a gentleman from the
7 International Tribunal in The Hague was in Zenica. He
8 traced me and talked to me about the way in which I
9 conducted the whole case. He wanted me to explain it
10 all to him. I spoke to him for about 20 minutes and
11 asked him whether this was what he wanted me to tell
12 him. He said that I had understood what he wanted me
13 to say, and then we talked for another couple of
14 hours. He did not show me the record of the person
15 that you're interested in, but this one. Only that one
16 he showed me.
17 Q. Very well. And the signature?
18 A. It was a copy of the record.
19 Q. The same one?
20 A. Yes. Yes.
21 Q. Did this investigator ask about the way in
22 which these records were signed?
23 A. I told him that myself. He was interested in
24 that. He did ask questions, but there are no official
25 records about that. He just made some notes.
1 Q. I'm not asking you about the existence of
2 records. I would like to know what he was interested
4 A. He wanted to know how I did that, basically
5 the same kind of questions that you're asking, how long
6 did it take me to interview the witness, how I acted
7 towards the witnesses.
8 THE INTERPRETER: Could the counsel be asked
9 to make pauses between the questions and answers?
10 MR. RADOVIC:
11 Q. In our proceedings, at the trial stage, when
12 there is a substantial difference between the statement
13 made during the investigation and during the trial, how
14 does this affect the credibility of the witness in the
15 assessment of the court?
16 JUDGE CASSESE: Counsel Radovic, is this
17 question relevant? I don't find that it's material to
18 our question. We are not interested in the trial
19 proceedings in Bosnia-Herzegovina. To the best of my
20 knowledge, there was never a trial on this particular
21 issue, on this case. Therefore, what is the relevance
22 of your question? We're interested in what happens
24 MR. RADOVIC: The relevance, first, is that
25 we now know where the entire investigation file is,
1 which we have not been able to see yet, and it is in
2 the hands of the Prosecutor of this Tribunal. This has
3 brought us into the position of not knowing what is
4 contained in the file, and it is only due to the
5 goodwill of the Prosecutor for us to be able to read
6 only what the Prosecutor has decided is exonerating
7 evidence. We are grateful to the Prosecutor for giving
8 us a part of this file --
9 JUDGE CASSESE: You are speaking at cross
10 purposes. I was objecting to the relevance of your
11 question which was related to the followup of a
12 statement made by a witness before an investigating
13 judge in a trial proper in Bosnia-Herzegovina. I think
14 this question is not relevant.
15 As for the file which allegedly - allegedly -
16 because this is a guess by the witness, should be in
17 the hands of the Prosecutor, this is a different issue
18 which you may raise in due time.
19 I wonder whether you could kindly move on,
20 Counsel Radovic.
21 MR. RADOVIC: I have lost my place now, so to
22 speak, my bearings.
23 JUDGE CASSESE: I apologise.
24 MR. RADOVIC: But the question was aimed at
25 getting a reply -- to say that a witness who makes
1 different statements is less credible, but this may or
2 may not be relevant to this Court. I will not go
3 further in this direction. Thank you.
4 JUDGE CASSESE: Thank you so much.
5 Prosecution? Mr. Terrier?
6 MR. TERRIER: Mr. President, regarding the
7 observation made by Counsel Radovic -- oh, I think that
8 Mr. Radovic is now down.
9 Mr. Radovic, are you through with your
11 JUDGE CASSESE: Are you finished with your
13 MR. RADOVIC: Yes.
14 MR. TERRIER: Yes. Thank you,
15 Mr. President.
16 Cross-examined by Mr. Terrier:
17 Q. Good morning, Witness. I am Franck Terrier.
18 I am one of the Prosecutors. I think that you're aware
19 of the fact that I'm going to ask you a number of
20 questions. I'm going to try to be quick.
21 You said earlier, Madam, that after having
22 worked for a long time in civilian occupations, you
23 said that in September 1993 you started working as an
24 investigating judge in a criminal court. Now, is it a
25 deliberate act on your part? I mean, is it an
1 expression of your will? Did you want to become an
2 investigating judge or is this something that was
3 requested from somebody?
4 A. The president of the court assigns judges to
5 the tasks in the yearly assignment plan. In wartime
6 conditions, it was not at the beginning of the year but
7 it was sometime in September 1993, he reassigned
8 judges, and he assigned me to this job. It was not
9 what I had wanted, but I knew that he had to do that
10 because the scope of the work in the criminal
11 department was expanding all the time, and he needed
12 more judges. He considered me to be highly competent,
13 and that was the reason why he assigned me to this
15 Q. In September '93, were you, in Zenica, the
16 only investigating judge or were there more
17 investigating judges?
18 A. I was not the only judge. I have to now make
19 a count. There were four or five other judges. Most
20 of them were men. There was a lady, she was older than
21 I was, and she was the chief of the criminal
22 prosecutions department as the most senior judge at
23 that court.
24 Q. At what time, if you have any recollection of
25 it, were you in charge of investigating the crimes
1 committed in Ahmici in April 1993?
2 A. I received that case for my procedure
3 sometime in late September. There is a book of
4 assignment in the court. I do not recall the exact
5 date, but there is a book in which I recorded that I
6 received that case for my action.
7 In the course of October, as far as I can
8 remember, I did not summon anyone. I was preparing for
9 this job. It also took some time for the summons to be
10 issued and for the witnesses to receive the summons,
11 especially bearing in mind the fact that it was very
12 hard for the postal service to function.
13 But I also conducted other investigations,
14 not only in this case, but I had some regular cases
15 that I had to deal with. I was also involved partially
16 in the investigation of some other issues related to
17 the work of the Tribunal in The Hague, dealing with
18 cases in which this Tribunal had already issued a
19 judgment. If I may say so, if it is relevant at all, I
20 can even specify the cases, but you probably assume
21 which case it was.
22 Q. One more question regarding your positions at
23 the time, your functions. Did you have to conduct
24 other criminal investigations, apart from the one
25 regarding Ahmici, at the same time?
1 A. Yes, I had to. I was assigned to this job,
2 and there was a lot of work at the court. There were
3 also some ordinary criminal offences that had been
4 committed in this area, serious robbery, murder. I
5 conducted investigations into all kinds of criminal
6 offences as they were assigned to me.
7 Q. First, to have an idea as to your work load
8 of the time, can you tell us approximately how many
9 inquiries you were supposed to conduct at the same
11 A. Bearing in mind the fact that it was a war,
12 we did not have a set norm that we had to meet. The
13 requirement was to do one's job properly and honestly.
14 We did not have an obligation to meet a certain number
15 of cases, whereas in the pre-war period, there were
16 such norms set. Everything was done slowly.
17 I have to repeat: In wartime conditions, I
18 was afraid for my own life. I went to work -- while
19 the sirens -- when the sirens indicated that there was
20 an alert, general alert, which meant that I had to be
21 in shelter, I went to work all the same, because in
22 some cases nothing happened, but I went to work all the
24 I had to provide some security to all those
25 witnesses, I had to concentrate really hard, I had to
1 be their support, I had to be really strong, to make
2 them believe that there is somebody somewhere in this
3 territory who could make sure that justice is done. I
4 also issued decisions on detention. Everything
5 functioned as it functioned before.
6 Q. I understand. Should we think, then, that at
7 that time, in September '93 up until the end of 1993,
8 that you were a solitary investigator, so to speak?
9 I.e., were you alone in your work, or did you have the
10 possibility to rely on policemen, on other judges, and
11 possibly on the prosecutor or his co-workers? Did you
12 work on your own, or did you have the possibility to
13 rely on other people, including policemen, colleagues,
14 other judges?
15 A. I did not have any contact with police
16 officers. This would not be usual procedure. In my
17 work, since all the judges are on good terms, we're all
18 colleagues, we all work together, we're all at our jobs
19 together, and those who have more experience are always
20 at the disposal of their younger colleagues. So I had
21 both to the left and to the right of my office
22 colleagues with greater experience in this job who
23 spent their entire time in the office with me. I
24 consulted them. Sometimes you wouldn't even know which
25 one of us would have to attend an inside investigation,
1 who would be there to question the next accused. You
2 wouldn't even know which judge would do that. It would
3 be done by that judge who was free at the time.
4 Q. Thank you very much. You've explained
5 earlier, madam, that it was upon the request of the
6 prosecutor that you were in charge of investigating on
7 the crimes committed in Ahmici. The prosecutor, on the
8 basis of information that he had at hand, had called
9 that crime genocide. That crime of genocide was
10 provided for in the law enforceable in
11 Bosnia-Herzegovina at the time; is that so?
12 A. Yes. Article 141, I even have the book in my
13 purse. I can show you the law and the article itself.
14 Q. We do believe you, Madam Witness, but just
15 simply --
16 A. Here is the book.
17 Q. Can you please tell us, what is the
18 definition of the crime of genocide in the law
19 applicable in Bosnia-Herzegovina at the time when it
20 was committed, according to the Prosecutor?
21 A. Genocide can be committed broadly in two
22 ways. One is persons that order other people to commit
23 murder, grievous bodily harm, or which affect the
24 mental stability of certain persons, with the purpose
25 of exterminating either a national or a religious or a
1 racial group from a certain -- or an ethnic group from
2 a certain area and orders such murders to be committed,
3 persecution, torture in all its forms. That person
4 commits a genocide, as does the person who actually
5 commits all those acts, so that person is also
6 considered to have committed the crime of genocide.
7 I must say, however that, the public
8 prosecutor defined in his request the crime of genocide
9 in its broadest terms, as the broadest type of crime
10 against humanity, which did not mean that had we
11 proceeded to the trial stage in Bosnia-Herzegovina,
12 that this qualification would have remained the same.
13 He has the right, after the end of the investigation,
14 to assess on the basis of that material what kind of
15 criminal offence he is dealing with and what kind of
16 indictment he can issue, what can he charge the accused
17 with, whereas the conduct of the investigation does not
18 diminish the value of those statements. They can be
19 used in evidence for other legal qualification of the
20 offence for different criminal offences.
21 Q. I understand. You said earlier that the
22 crime of genocide in the law applicable in
23 Bosnia-Herzegovina of the time was punishable by
24 maximum sentence, i.e., the death penalty. As far as
25 you know -- and now I'm no longer talking about the
1 Ahmici events; I'm no longer talking about Ahmici --
2 but as far as you know, in Bosnia-Herzegovina after the
3 war, were there trials that were conducted for crimes
4 of genocide? And I'm not, again, talking about the
5 crimes in Ahmici or none of the accused, but as far as
6 you know, what is the situation?
7 A. I am not fully informed about everything that
8 is happening in the courts, but I believe that there
9 are no trials going on now for these offences.
10 Q. When the Prosecutor gives to you a request
11 for an investigation, does he necessarily have to name
12 persons, the people who are affected or concerned, or
13 is it up to him to make the choice of people to be
15 A. Yes, but -- yes, it's the prosecutor who
17 Q. Yourself, as an investigating judge, when you
18 receive a request for an investigation from the
19 prosecutor, do you have to conduct the investigation,
20 or can you refuse to do so when the information, for
21 instance, are considered to be insufficient? Do you
22 have a choice, as an investigating judge, to do that?
23 A. An investigating judge has a council. The
24 council is made up of three judges from the same court,
25 dealing in criminal cases, and if the investigating
1 judge disagrees with a request made by the public
2 prosecutor, he or she has to apply to the council,
3 which will then make a decision.
4 Q. As a consequence, madam, when you or maybe
5 your predecessor received a request for an
6 investigation from the prosecutor, you considered that
7 request was receivable, that it was valid and that it
8 was well-founded upon the exhibits as filed by the
10 A. The public prosecutor does not provide
11 evidence. He does not hand over evidence. He provides
12 certain documents from which it is evident that there
13 are reasonable grounds to suspect that the suspect has
14 perpetrated the crime, and the public prosecutor
15 proposes, in his request to the court -- that is, to
16 the investigating judge -- what evidence should be
17 collected or presented. Therefore, it is only before
18 the investigating judge that evidence is presented. Up
19 to that time, it is just in the preparation phase.
20 Q. I think that there might be a small problem
21 of terminology, and correct me if I'm mistaken in my
22 interpretation of what you said, but it seems that as
23 an investigating judge, that you had examined the
24 request for investigation by the prosecutor, that that
25 request for investigation was based on a number of
1 documents -- I'm not talking about evidence at that
2 stage of the procedure -- and you considered, as an
3 investigating judge, that those documents established
4 reasonable suspicion against the people who were
5 involved to have committed a crime of genocide, and
6 then on that basis, you started your investigation so
7 as to verify or counter the allegations of the
8 prosecutor. Am I right in making this interpretation
9 of things?
10 A. You are right, but I did not start this
11 investigation. This investigation was started by my
12 colleague, Judge Mensur Hasagic. He was the one who
13 issued a decision that an investigation should be
14 carried out, and it was he who judged that the material
15 handed over by the public prosecutor provided
16 reasonable grounds for an investigation, and there is a
17 list in that decision of all the persons mentioned by
18 the public prosecutor in his request.
19 Q. This colleague whom you are referring to, why
20 didn't he continue his investigation? Why did you have
21 to replace him?
22 A. That was an internal matter of the court.
23 The president of the court had made the decision that
24 my colleague could not handle all the cases on his own
25 that he was assigned. Sometimes people apply
1 personally. He had already been conducting
2 investigations for a long time, and he wanted to stop
3 doing investigations and to do more in trials.
4 Q. You said earlier, madam, that within this
5 investigation, you heard some 20 to 30 witnesses. Did
6 you also do other investigations, for instance, did you
7 go to Ahmici, did you conduct technical visits in
8 houses, things like that? Was it possible at all,
9 given the circumstances and the fact that there was a
11 A. It was absolutely impossible for me to go to
12 Ahmici until the Washington Accords were signed around
13 the 1st of April 1994. There was no way I could have
14 gone to Ahmici because there was gunfire coming from
15 that direction, and shelling. There were two warring
16 sides there, and it was impossible for me to go there.
17 What else did you ask me? I forgot.
18 Q. You have answered my question, madam.
19 A. You asked about sketches?
20 Q. You have fully answered my question. Let me
21 turn to another question: Those 20 to 30 witnesses
22 you've heard, were they all former inhabitants of
23 Ahmici who were victims of the crimes committed in
24 April '93?
25 A. They were all victims of the crime, but they
1 were not all from Ahmici. A number of them were from
2 other villages. I didn't know, although it's very
3 close to my town, but I didn't know exactly the
4 relative position of all these villages, because I had
5 never had occasion to go there. But I remember they
6 mentioned Grbavica, Gacice, and Nadioci. This has
7 stayed in my memory, the names of these villages.
8 There was a lady who testified to rape who was from
9 Vitez, from the town, and there were people who were
10 not from Ahmici but were from the area of the Vitez
12 Q. Without referring to one witness in
13 particular, what recollection do you have of those
14 testimonies you've heard regarding the Ahmici crime for
15 the purpose of this investigation? Do you have a
16 feeling that the witnesses appeared to have been very
17 deeply affected, were they experiencing difficult
18 circumstances, did they appear to be very precise, or
19 very imprecise? What is your recollection of how they
21 A. The witnesses, when they came before me, it
22 is my impression, tried to be as dignified as
23 possible. They were all deeply affected. All of them
24 had lost either a husband or sons or brothers,
25 fathers. In Ahmici it was mostly men who were killed.
1 It was very difficult and very moving to
2 interview these witnesses. The women would begin their
3 story in a relatively calm manner, but as they
4 continued talking, when they came close in their story
5 to the moment when their husband, son, a brother, is
6 killed, they would then usually break down and start
7 crying. Some of them tried to hold back the tears, to
8 cry as little as possible, but you could see on their
9 faces that they were deeply moved and couldn't conceal
10 their feelings.
11 So at that time, I would stop a little, I
12 would tell them to pause, to take a rest, I would give
13 them a glass of water, offer them a cigarette, some
14 coffee. So the interviews went on slowly. I would
15 wait for them to calm down and then allow them to
16 continue, and that's what the interviews were like.
17 The statements, in most cases, they said that
18 in the evening, on the eve of the 15th of April, the
19 village was quiet, and that they had noticed nothing
20 suspicious, and in the morning, as dawn was breaking,
21 gunfire broke out in the village. There was banging on
22 the doors. People would burst into their houses and
23 kill the male members of their families.
24 They all said that the murderers were some
25 kind of soldiers -- at this moment, I cannot remember
1 exactly what kind of soldiers -- that their faces were
2 painted in various colours, so that most of them were
3 unable to recognise the faces.
4 One group said that they recognised these men
5 and named these persons, and the names they mentioned I
6 entered into the record. It was all the same to me
7 whether the name they mentioned was of this or that
8 person, because I didn't know any of them. I only
9 wrote down or transmitted the names they mentioned.
10 Q. As a consequence, madam, the witnesses you
11 saw appeared to be very credible on the whole,
12 trustworthy, and what they were looking for was for
13 justice to be done after the crimes committed in
14 Ahmici; that is the impression which you gathered?
15 Isn't that so?
16 A. Well, of course, that's how it appeared. On
17 one occasion, the public prosecutor, who was present at
18 a witness interview, after everything she said and the
19 questions I asked, he wanted her to say again who she
20 had recognised. He insisted, saying, "How come you
21 didn't recognise anyone? Who did you recognise?" And
22 she said, "I would like to have recognised someone, I
23 wish I had recognised someone, I wish I knew who these
24 people were."
25 Other people said they saw someone. At the
1 time I was interviewing the witnesses, they were
2 already a bit demoralised. They had been interviewed
3 by the police, then they had come before the court, and
4 the first thing most of them said was, "Why do I have
5 to tell this story again? I've already told it."
6 But when I explained to them that this was a
7 court and that this is the place where their testimony
8 will become evidence, then they understood that, and
9 then they were very happy to tell their stories again
10 in the desire to have those persons punished.
11 MR. TERRIER: Mr. President, I have about
12 another 15 to 20 minutes' worth of questioning, but
13 maybe we can continue tomorrow.
14 JUDGE CASSESE: Yes, we shall resume tomorrow
15 morning at 9 a.m.
16 I think that (redacted)-- I would like
17 to apologise; I have a lot of trouble pronouncing his
18 name -- I heard that the doctor is ready to come and
19 testify on Thursday, which means that we'll have to get
20 organised. So tomorrow we'll continue with the present
21 witness, and maybe we have now concluded -- we have a
22 list of three witnesses after the witness on Thursday,
23 so maybe we could also hear an expert witness convened
24 by the Defence of Vlatko Kupreskic. I think he's the
25 president of the Supreme Court, unless I'm mistaken.
1 Yes, Counsel Pavkovic.
2 MR. PAVKOVIC: Your Honours, this is the
3 first time that I heard that (redacted) could be
4 here on Thursday. Although I will limit my examination
5 to a limited range of issues, because, as we know he
6 has already testified before this Court, I will need
7 some time for preparation. I would have to see him at
8 least one day before he testifies, and according to
9 this schedule, that would be impossible.
10 I have to prepare. I cannot come here on
11 Thursday and ask questions of a man I haven't seen in
12 my life, despite the fact that I'm really willing to do
14 JUDGE CASSESE: Well, you know, the question
15 is very simple: Either we hear him on Thursday or
16 Friday, or he can't come. So therefore you have to
17 make a choice. In any case, I don't think that you
18 need so much time. To the best of my recollection,
19 it's not a huge issue, the one about which he may be of
20 some relevance. So we could then try to see whether he
21 could be called on Friday, Friday morning, but of
22 course we would then finish with this testimony by
23 Friday at 1.00. Otherwise he will not be able to come
25 So you may ponder this question, and then,
1 when we come back tomorrow morning at 9.00, let us
2 know. But as I say, I know he is available on Thursday
3 morning. That's why I was suggesting that we should
4 organise our proceedings in such way as to start on
5 Thursday morning with him. He will be here on
6 Wednesday, I understand, tomorrow. And then -- you
7 know, in the afternoon, we are all free, in inverted
8 commas; namely, we work on other matters. You could
9 probably, tomorrow afternoon, if he is around, so
10 Wednesday afternoon and possibly Thursday afternoon.
11 Is that fine with you?
12 MR. PAVKOVIC: I don't know if it's necessary
13 for him to be examined this week. Maybe his testimony
14 could be postponed until the witnesses in the Defence
15 for Vladimir Santic are here.
16 No? Well, I will abide by your decision, but
17 please allow me some reasonable time for my
19 JUDGE CASSESE: Yes. Thank you.
20 All right. So therefore we can adjourn now
21 until tomorrow at 9, and we will go -- yes?
22 MR. KRAJINA: Mr. President, if I may?
23 JUDGE CASSESE: Yes, Counsel Krajina.
24 MR. KRAJINA: Mr. President, I would like to
25 advise the Court that the witnesses in the Defence of
1 Vlatko Kupreskic called according to the list presented
2 to the Court are all here in The Hague except for the
3 one who has fallen ill, and we are prepared to start
4 the examination of two or three of them. Our first
5 witness would be Vjenceslav Ilic, the president of the
6 Supreme Court, and then we can go on.
7 JUDGE CASSESE: Yes, as I say, I very much
8 hope that we can start with Mr. Ilic tomorrow after the
9 present witness, and I very much hope that his
10 testimony will be brief, because as I warned you, we
11 will not go into legal technicalities about the notion
12 of persecution in the Yugoslav law, because it is for
13 this Court to decide what is meant by "persecution."
14 We don't want to have a big picture of the legal
15 technicalities of the legal system in
16 Bosnia-Herzegovina. So I hope that you will ask
17 questions brief and material to our case. In this
18 case, if this is so, we could even tomorrow move on to
19 the second witness you intended to call.
20 Thank you so much. We adjourn until tomorrow
21 at 9.00.
22 --- Whereupon the hearing adjourned at
23 1:10 p.m., to be reconvened on
24 Wednesday, the 5th day of May, 1999,
25 at 9:00 a.m.