1 Tuesday, 2 October 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.01 a.m.

5 [Trial Chamber and registrar confer]

6 JUDGE BONOMY: Well, I understand there are certain technical

7 difficulties this morning with the equipment, but essentially that is

8 confined to the transcript on e-court. The transcript exists in the

9 normal form, and e-court will handle the exhibits. So there is no reason

10 why we cannot continue.

11 Mr. Visnjic, who is your next witness? Oh, sorry, Mr. Cepic.

12 MR. SEPENUK: Yes, thank you, Your Honour. The next witness is

13 Radomir Gojovic.

14 JUDGE BONOMY: Thank you.

15 [The witness entered court]

16 JUDGE BONOMY: Good morning, Mr. Gojovic. Would you please make

17 the solemn declaration to speak the truth by reading aloud the document

18 which will now be shown to you.

19 THE WITNESS: [Interpretation] I solemnly declare that I will speak

20 the truth, the whole truth, and nothing but the truth.

21 JUDGE BONOMY: Thank you. Please be seated.

22 WITNESS: RADOMIR GOJOVIC

23 [Witness answered through interpreter].

24 JUDGE BONOMY: You will now be examined by Mr. Sepenuk on behalf

25 of Mr. Ojdanic.

1 Mr. Sepenuk.

2 MR. SEPENUK: Thank you, Your Honour.

3 Examination by Mr. Sepenuk:

4 Q. Good morning, General Gojovic.

5 A. Good morning.

6 Q. Sir, what is your current occupation?

7 A. I am a lawyer.

8 Q. And where do you practice?

9 A. In Belgrade.

10 THE INTERPRETER: Interpreter's Note: Could Mr. Sepenuk please

11 switch off his mic when the witness is mic'ing his answer.

12 Q. Are you a formerly a member of the Yugoslav Army?

13 A. Yes, sir.

14 Q. And how long did you serve in the Yugoslav Army?

15 A. From 1963 until 2001, for 40 years.

16 Q. And you retired in 2001; is that correct?

17 A. Yes.

18 Q. And what was your rank at retirement?

19 A. Major general.

20 Q. Now, General, would you briefly describe your career in the army

21 and also your military legal career.

22 A. I completed the school for non-commissioned officers in the

23 infantry in Sarajevo. Then I graduated from the high school and the

24 school of law in Sarajevo. And for ten years, from 1961 to 1971, I was

25 the commander of the mortar platoon and the recoilless rifle platoon. I

1 was a troop commander.

2 After I completed the law school, I was transferred to the legal

3 service. That was in 1971. And from that time on, I was a legal

4 profession.

5 I worked in the legal judiciary for 30 years -- in the military

6 legal judiciary for 30 years.

7 Q. And did that include the -- being the former president of the

8 military court in Belgrade from 1994 to 1999?

9 A. Yes.

10 Q. And on April 16th, 1999, is it true that you were appointed chief

11 of the legal department of the General Staff?

12 A. Yes.

13 Q. Who appointed you to that position?

14 A. I was appointed by the President of the Republic at that time, and

15 that was Slobodan Milosevic.

16 Q. And before you were appointed to that position, did you meet with

17 General Ojdanic, and if so, tell us what was said at that time.

18 A. Well, it was sometime on the 14th or the 15th of April. I was --

19 got a phone call from General Ojdanic. That was in the evening. And he

20 told me that he should have an interview with me about some -- he should

21 talk to me about some status-related issues and he asked me whether I

22 agreed, and I said yes.

23 The next day he came to the court and he told me about

24 Milosevic -- President Milosevic's position, that President Milosevic had

25 asked him to find some person to appoint to that post in order to improve

1 the operation of military courts in wartime.

2 He then told me that he talked to the president of the supreme

3 military court and the supreme military prosecutor, asking them who could

4 be professional enough to be appointed to that post, who had proper --

5 appropriate experience, and they gave him my name.

6 I agreed to take that post, because I had already been at all the

7 posts in the military judiciary. I was the deputy military prosecutor,

8 the military prosecutor. I was a judge, a military judge. I was the

9 president of the lower military court. And I agreed to take that

10 position.

11 Q. Was there any discussion at that time with General Ojdanic about

12 whether the legal system was functioning well or not? And if so, what was

13 that conversation?

14 A. Well, all military courts in wartime and all military prosecutors

15 offices had already been set up. There had been some organisational

16 difficulties at the outset in light of the fact that this was the first

17 time for such courts to be set up. They had not functioned. They did not

18 in fact exist from 1947, the end of the Second World War. So a great deal

19 of experience was needed. Some problems had been encountered. And it was

20 necessary to reorganise them and to make them more efficient, more

21 efficient that -- than there had been up until that time. That's what we

22 talked about.

23 Q. Thank you. Now, General, would you give us briefly an overview of

24 the laws, rules, and regulations that apply during 1998 and 1999 regarding

25 observance of international humanitarian law by members of the army. Just

1 a brief overview, if you would.

2 A. Until the Constitution of the Federal Republic of Yugoslavia, in

3 Article 16 it is envisaged that all international treaties ratified by the

4 parliament and published in accordance with the law and norms of

5 international law apply, and they are an integral part of the internal

6 legal system of Yugoslavia. That includes all the Geneva Conventions, all

7 the protocols. So this is the basic provision in the Constitution. On the

8 basis of that provision in the Constitution, the Law on Defence also

9 envisages -- or rather, there is a provision in Article 19 of the Law on

10 Defence stipulating that all personnel of the -- of the military in combat

11 are duty-bound to abide by the Rules of International Law of law and other

12 rules about the humane treatment of prisoners of war and the civilian

13 population.

14 In the law on the army of Yugoslavia - I think that is Article

15 31 - it is also stipulated that the military personnel in the course of

16 executing their combat missions are entitled to use firearms in accordance

17 with the rules of engagement, and the rules of engagement provide for the

18 proper use of weapons in combat.

19 These are the basic legal provisions.

20 And there was also the instruction on the application of the

21 international law of war in armed conflict. It was systematised and

22 edited, revised in 1988. There was also an order of the President of the

23 Republic on the application of this -- these laws in the army of

24 Yugoslavia, and this is in fact still in force.

25 Q. Thank you. Now, I want to go over with you again very briefly

1 some other rules and regulations applicable in this area, and for that

2 we're going to turn to Defence Exhibit 3D1110. And we have examined all

3 of these rules and regulations before together, have we not?

4 A. Yes.

5 Q. And I'd first like to direct you to tab 2 of that exhibit, 3D1110,

6 and that's at -- at 3D110172 in the English and 3D110036 in B/C/S.

7 Do you -- do you recognise that, General?

8 A. These are the rules. This is a brochure, "Rules on the

9 application of the rules of international law of war." And they contain

10 those provisions that I talked about a little while ago. So this was a

11 hard-back brochure, and every unit at a certain level has this booklet in

12 its possession. It has to be in the library.

13 Q. And who --

14 MR. SEPENUK: And by the way, Your Honours, I notice the English

15 version is not up, but it is the regulations on the application of

16 international laws of war in the armed forces of the SFRY.

17 Q. And I notice it's dated 1988. Were these rules and regulations

18 applicable in 1998 and 1999? And if so, why were they applicable? How

19 did they become applicable if they're dated 1988?

20 A. They were applicable at that time too, and they are in force right

21 now, because they contain all the Geneva Conventions, the 1947 Geneva

22 Conventions and all the additional protocols and all the other -- other

23 rules of international law of war and customs that are generally accepted.

24 This booklet was published in 1988. That was when it was edited and

25 revised and adapted to the actual needs. Nothing changed in the meantime.

1 So the fact that it bears the date of 1988 doesn't mean much.

2 Q. Yes. But I asked you a specific question: Why is the 1988 rules

3 applicable in 1998 and 1999, and whether the Constitution has anything to

4 do with that.

5 A. Well, the Constitution is the foundation for that, because it

6 envisages that all the international regulations are to be applied and

7 they are part of the internal legal system. So that is the foundation.

8 Q. Thank you, General. Now I'd like you to look at tab 3, which is

9 the rules of combat for soldiers, and it's 3D110258 in the English and

10 3D110256 in the B/C/S.

11 JUDGE BONOMY: I hope that's a mistake. 110258, Mr. Sepenuk. That

12 can't be right. I hope.

13 MR. SEPENUK: Well, it's -- excuse me. It's 3D11-0258 in the

14 English.

15 JUDGE BONOMY: 11 dash?

16 MR. SEPENUK: Yes. That's the way it's numbered on my copy, Your

17 Honour.

18 [Trial Chamber and registrar confer]

19 JUDGE BONOMY: Oh, this is the e-court page number?

20 MR. SEPENUK: Yes.

21 JUDGE BONOMY: Oh, sorry. Sorry.

22 What is the exhibit number, then?

23 MR. SEPENUK: The exhibit number is 3D1110.

24 JUDGE BONOMY: Still part of that.

25 MR. SEPENUK: Yes. Your Honour, we have 18 or 19 tabs on this.

1 So, again the English is at 3D11-0258, and there it is on the

2 screen. And the B/C/S is 3D11-0256. Is it possible to put that up at the

3 same time? Thank you.

4 Q. General, you've seen these rules before, have you not, sir?

5 A. Yes. Yes.

6 Q. What are they and who were they distributed to?

7 A. The rules of conduct for soldiers, this is a small laminated

8 leaflet that contains the most salient provisions of the international law

9 of war. That is adapted to soldiers to use them in combat. This provides

10 how a soldier should comport himself in combat, that they may fire only at

11 other soldiers, that they should abide by the rules of the international

12 law of war, that they should protect the civilian population, how to treat

13 the wounded, in the battlefield, the wounded enemy, the wounded prisoners,

14 and also how to treat property, to use only the combat warfare that is

15 necessary to carry out the mission and not to use excessive force.

16 So these are just the general rules that every soldier had to

17 carry with him. This is a pocket-size leaflet and every soldier had it

18 with them.

19 Q. Was it one of those laminated leaflets that you -- small laminated

20 leaflets that you can carry in your pocket?

21 A. Yes. It's laminated. There are just two pages, so it is

22 impervious to humidity and to water.

23 Q. And now I'd like to turn to tab 4.

24 JUDGE BONOMY: Mr. Sepenuk, is this the -- the document that we've

25 heard of 1300 copies being distributed?

1 MR. SEPENUK: I think there was some testimony, but the short of

2 it, Your Honour, as I understand it - and that's one of the reasons

3 General Gojovic is here - is that every single soldier received a copy of

4 this. I forget the specifics of the 1300 copies, but I think there'll be

5 other evidence, if there not already has been other evidence, that every

6 soldier received a copy.

7 JUDGE BONOMY: Mr. Gojovic, how did every soldier come into

8 possession of a copy of this?

9 THE WITNESS: [Interpretation] This was printed, and just as every

10 soldier is issued weapons and other equipment, they were also given this

11 small leaflet. So this is nothing new.

12 And the cost was negligible. If you can supply every soldier with

13 all the equipment they need, you could give him those two pieces of paper

14 too. And the soldier has it in his kit. When a soldier is mobilised,

15 when she's issued weapons and other equipment, he get this is

16 leaflet, "Rules of conduct for soldiers in combat."

17 JUDGE BONOMY: Thank you, Mr. Sepenuk.

18 MR. SEPENUK: Thank you, Your Honour.

19 And now I'd like to turn to handout 4, which is handbook for VG

20 members engaged in areas affected by sabotage and terrorist activities

21 from June 1998. And that's in the English at 3D11-0271.

22 Q. And you're familiar with that document, are you not, sir?

23 A. Yes.

24 Q. And just very briefly tell -- it's a -- tell the Trial Chamber

25 what it provided for. Very briefly.

1 A. Well, just as there was the rules of conduct of soldiers in

2 combat, there was an analogous document dealing with the way in which

3 soldiers should comport themselves in the fight against the terrorists in

4 Kosovo and Metohija. So all the rules were incorporated in it, but there

5 were some other rules as to how to treat members of terrorist groups if

6 they were captured. They were to be treated in the same manner, although

7 they did not have the status of prisoners of war. They should be treated

8 as if they were prisoner of wars and they should be handed over to the

9 competent organs in order to be prosecuted, because terrorism is a crime.

10 So this was adapted to this particular situation in fighting

11 against terrorist groups. So it was just slightly modified and some new

12 provisions were included about fighting terrorist groups and infiltrated

13 sabotage groups.

14 Q. In your knowledge, General, who received a copy of this handbook?

15 A. These handbooks were distributed to the soldiers who were engaged

16 in fighting terrorist groups, so just them.

17 Q. All right. Now I'd like to turn again very briefly to tab 5,

18 which is a resume of the four Geneva Conventions and protocols. And we

19 have it, I think, Your Honours, only in B/C/S. I don't really want to

20 spend much time on it. I'll simply ask the general what was that document

21 and who was it distributed to, to your knowledge?

22 For the record, it's at 3D11-0279.

23 You know what I'm talking about, General, do you not?

24 A. Yes.

25 Q. Just tell us -- just tell us again, very briefly, what it was. And

1 if you know, who was it distributed to.

2 A. This handbook contains just a brief outline of all the Geneva

3 Conventions from 1947 and the additional protocols, just the briefest

4 outline of the contents, all unit commanders from platoon commander,

5 company commander and upwards, they had the handbook with them. So we're

6 talking about commander -- unit commanders, "komandiri."

7 Q. Thank you. And finally on this subject, if you would look at tab

8 6, which is the Yugoslav Army Supreme Command Staff fundamentals of the

9 laws of war, a summary for officers, at 3D11-0309 in the English.

10 3D11-0294 in the B/C/S.

11 And you're familiar with this document, General? We don't have

12 the B/C/S up yet.

13 A. I know about this document, but I can't see it on the screen.

14 Q. Yes. It's -- now it's up, I believe. "Fundamentals of the law of

15 war." Do you recognise that?

16 A. Yes. That's it; although, I don't see the rest of the text.

17 That's the fundamentals of the law of war. This is just a basic

18 principles of the law of war, basic concepts, some explanations, and unit

19 commanders also had this document. The soldiers were not issued that.

20 They didn't need that. They had this and the summary of the Geneva

21 Conventions from 1947 [as interpreted].

22 Q. Thank you. Now, aside from what you've talked about, the

23 Constitution, Rules of Defence, rules of the army, and these other

24 provisions we've talked about, please tell us the specific laws

25 prohibiting the commission of war crimes and the specific law prohibiting

1 murder and multiple murder in both in the Federal Republic of Yugoslavia

2 Criminal Code and the Serbian Criminal Code.

3 A. In addition to the regulations that we've already discussed, in

4 the Criminal Code of the Federal Republic of Yugoslavia there is a chapter

5 containing crimes -- or rather, where persons who commit war crimes during

6 wartime are sanctioned. A number of different crimes: Crime against --

7 war crime against civilian population, war crime against prisoners and

8 wounded, genocide. This is all stipulated in the Criminal Code. Every

9 perpetrator is prosecuted and tried.

10 Q. I want to focus on war crimes against the -- the civilian

11 population. What article is that?

12 A. That is mentioned in Article 142 of the Criminal Code of the

13 Federal Republic of Yugoslavia.

14 Q. And what is the minimum and maximum sentences pertaining to that

15 article?

16 A. The minimum sentence is five years in prison and the maximum

17 sentence is twenty years in prison.

18 Q. Prior to -- when did the 20-year maximum go into effect?

19 A. Well, it was up to the court. It depended on the manner in which

20 the crime was committed, the seriousness of the crime, and the threat to

21 the society. If a person ordered the commission of such a crime and if

22 the civilian population sustained suffering for no reason, then this

23 maximum sentence would apply.

24 Q. But, again, the maximum sentence was 20 years; is that correct?

25 A. Yes. Yes.

1 Q. Now, what was the article in the Serbian code which covered murder

2 and multiple murder?

3 A. The Criminal Code of Serbia has Article 1 -- Article 47, several

4 forms of homicide, paragraph 1 is just ordinary murder, one person is

5 killed; and if you have several persons killed, then it's multiple murder,

6 at least ten years, that's the sentence for this kind of murder, or even

7 death penalty.

8 In the federal law, the death penalty was abolished, but in the

9 Criminal Code of the Republic, it -- the death penalty existed up until

10 2005, when the Criminal Code was finally amended.

11 Q. So the short of it is, General, that the penalties for the crime

12 of murder are more severe than the penalties for the Article 142 war

13 crimes. Is that a fair statement?

14 A. Correct.

15 Q. Okay. Now, we've talked about the rules, the regulations, the

16 laws prohibiting, commission of crimes. Now tell us about the judicial

17 system that was set up during the war to prosecute crimes.

18 JUDGE CHOWHAN: Well, I apologise interfering. Forgive me,

19 please. Now, I just wanted to clarify whether the Criminal Code of Serbia

20 was applicable to the armed forces or was it applicable generally as a

21 corpus juris for everybody in that area. Did it apply exclusively for the

22 army, like the case of Article 142 of the Criminal Code of FRY. I mean,

23 how -- how these both could be brought together. Because otherwise

24 there'll be a principle of -- of double jeopardy.

25 MR. SEPENUK: Thank you, Your Honour.

1 Q. General, do you understand His Honour's question?

2 A. I understood the question. It's a unified, single law or legal

3 system, and it applies to all members, that is, all perpetrators of that

4 crime, all citizens, regardless of whether they are civilians or members

5 of the army.

6 However, military courts only had jurisdiction over members of the

7 army. If the perpetrator was a civilian, then the civilian court would

8 deal with it. So there would be no double jeopardy, no two trials.

9 There's only one court trying this crime.

10 JUDGE CHOWHAN: So a person of the army, if he committed several

11 murders, will he be tried under Article 142 or will he be tried under the

12 Criminal Code of Serbia and then what will be the forum?

13 THE WITNESS: [Interpretation] For someone to be held liable under

14 Article 142 of the Criminal Code of the FRY, if that was a military

15 commander who ordered that crime to be committed, to his underlings or if

16 it was a member of the army, a subordinate member of the army they would

17 answer under Article 142 of the Federal law. However, prosecutors opted

18 during the wartime in cases when this crime was not the result of an order

19 but something done on an individual's own initiative, they opted to act

20 under the republican law, because the republican law envisaged a more

21 severe punishment. In the course of trials, Defence counsel usually made

22 motions that were successful in many cases that the crime be tried under

23 Article 142, because it was, if I may put it that way, more lenient. If

24 those murders or multiple murders were committed during war operations or

25 combat against civilians, against the wounded in wartime.

1 MR. SEPENUK: Is that satisfactory, Your Honour? Is that

2 satisfactory?

3 JUDGE CHOWHAN: I think there's still a bit of a confusion,

4 because -- will the penal law applicable to everybody apply to the

5 soldiers who committed murder, let's say of their own initiative, rather

6 than by the directions of a commander, what will happen? And will it be a

7 military court or ordinary court? I mean, this is still something. But

8 anyway, you can kindly help us later on, Mr. Sepenuk. Thank you very

9 much.

10 MR. SEPENUK: Thank you, Your Honour.

11 JUDGE BONOMY: Just for the transcript, Mr. Sepenuk, these

12 questions are posed by Judge Chowhan and not by Judge Kamenova.

13 MR. SEPENUK: Thank you, Your Honour.

14 Q. Now, General, tell us about the judicial system that was set up

15 during the war to prosecute crimes.

16 A. With a proclamation of the state of war on the 26th of March, the

17 chief of General Staff issued an order in keeping with the state of war

18 that military courts in wartime and military prosecutors in wartime be

19 established. On the basis of that, the peacetime military courts and

20 military prosecution offices seized their [Realtime transcript read in

21 error "washing"] work, and work proceeded to establish military courts and

22 military prosecution offices. They were formed as part of commands of

23 individual units.

24 In total, 20 first-instance courts and 20 first-instance

25 prosecutor's offices were established as part of commands of units.

1 Q. General, let me just interrupt you for a moment, please.

2 JUDGE BONOMY: Just before you do, Mr. Sepenuk, we can't allow to

3 go unnoticed a reference to the military judiciary and prosecution seizing

4 their washing.

5 MR. SEPENUK: Seized their washing, yes.

6 JUDGE BONOMY: You may be able to help us.

7 MR. SEPENUK: I'm sure Mr. Cepic can enlighten us.

8 MR. CEPIC: I believe, Your Honour, there are some more errors in

9 transcript. First of all, I found on the two places that the witness

10 mentioned 1949 in relation to Geneva Conventions, but in transcript it is

11 1947. That is first.

12 Secondly, page 12, line 12. Defence counsel usually made motions

13 that were successful. I think that witness did not say as in the

14 transcript.

15 JUDGE BONOMY: Very well. Can you help us with the washing?

16 MR. CEPIC: I think that Mr. Sepenuk is in charge right now.

17 JUDGE BONOMY: Very well. Back to you, Mr. Sepenuk.

18 MR. SEPENUK: We could go back to it right now, Your Honour, if

19 you'd like. Otherwise, I'll continue on.

20 JUDGE BONOMY: I'm sorry I mentioned it, but it seemed to brighten

21 up a Monday morning -- Tuesday morning.

22 MR. SEPENUK: Thank you.

23 JUDGE BONOMY: I'm also a day behind. Please continue.

24 MR. SEPENUK: Thank you, Your Honour.

25 Q. General, excuse me for interrupting, but I wanted to just get back

1 a little bit in terms of how many military court there is were in

2 peacetime. Just tell us that briefly. Military courts in peacetime. How

3 many were there and where did they sit?

4 A. In peacetime, there were three first-instance military courts: One

5 in Belgrade, one in Nis, and one in Podgorica, there were also three

6 peacetime prosecutor's offices in these locations. There was also a

7 supreme military court and a supreme military prosecutor's office.

8 Q. Thank you.

9 A. Based both in Belgrade.

10 Q. Now, after the war, how many military courts were established? I

11 think you said 20. Is that correct?

12 A. Correct, 20 first-instance military courts, and the same number of

13 prosecutor's offices. There was also a supreme military court and supreme

14 military prosecutor's office. Plus they had their own sections each, and

15 they were subordinate to army commands. There were three sections each,

16 three sections of both organs that dealt with appeals. So in total, there

17 were 24 courts and 24 prosecutor's offices.

18 Q. And these 20 Trial Courts, could you just reel off from memory - I

19 hope you can do that - some of the locations where they were at.

20 A. I know all the locations. The trial military courts were set up

21 annexed to army commands, the 1st, 2nd, and 3rd armies, that is, Belgrade,

22 Nis, and Podgorica. They were also form within corps commands, Belgrade,

23 Nis, Podgorica, Uzice, and others, and as part of military districts

24 commands and division commands. There was one division as well as -- as

25 part of the Navy and air force and air defence.

1 Q. And how about defence lawyers? Were there provisions for defence

2 lawyers and if so, what were they? Very briefly.

3 A. According to establishment, there was a loophole earlier. There

4 was no establishment first of Defence counsel. When I came to my

5 position, I noticed this lacuna. So later on we proceeded to organise

6 defence free of charge and Defence counsel were at the disposal of every

7 court to be appointed, to be assigned as Defence counsel, if necessary.

8 So that element was also included in the judiciary.

9 Q. And were rules of organisation and procedure enacted for both

10 military courts and military prosecutors? Just "yes" or "no."

11 A. Yes, at the same time.

12 Q. And I'd like you to --

13 MR. SEPENUK: As a matter of fact, Your Honours, and with the

14 permission of -- or at least the concurrence of the Prosecution, tabs, 8,

15 9, 10, and 11 represent the Rules of Procedure of military courts and

16 military prosecutors. And I'd simply like to mention that to Your

17 Honours. It's listed in 65 ter.

18 And just for the record, tab 8 is the organization and work of the

19 military prosecutor and that's at 3D11-0329 this is again 3D1110. Tab 9

20 is the law on military courts, 3D11-0337. Tab 10 is the application of

21 law of criminal procedure during a state of war, 3D11-0346. And tab 11,

22 3D0355, Proma [phoen] getting the law on the military prosecutor. And I

23 think we'll just move on.

24 JUDGE BONOMY: Mr. Hannis, you accept these -- these appear to be

25 what they're said to be?

1 MR. HANNIS: I do.

2 JUDGE BONOMY: Thank you, Mr. Hannis.

3 Move on, Mr. Sepenuk.

4 MR. SEPENUK: Thank you, Your Honour.

5 Q. Now after assuming your duties as chief of the General Staff's

6 legal department on April 16th, 1999, was there in your opinion, a

7 sufficient number of judges and prosecutors to do an adequate job?

8 A. I noted immediately that the number of judges or prosecutors was

9 insufficient. They were really minimal in number and inadequate. That is

10 one thing.

11 And the second thing is that according to the wartime assignment,

12 although candidates met all the requirements, they passed the bar exam and

13 had a law degree, the persons appointed to such posts had no previous

14 experiences, judges or prosecutors. So one of the first things to do was

15 to replace those people by persons who had previously worked in the

16 judiciary, mainly from district courts, because they had experienced

17 personnel, so that at my proposal the personnel was replaced in order to

18 have the work done as efficiently and as professionally as possible.

19 Q. So a number of new judges and prosecutors were appointed; is that

20 correct?

21 A. Yes.

22 Q. And are -- are the specific numbers reflected in tab 12 of Exhibit

23 3D1110 at 3D11-0370?

24 A. There were 155 judges in total and 92 prosecutors, and the newly

25 appointed ones were 125 in number. They were promoted to be officers

1 because military prosecutors and judges have to be officers. So they were

2 given the status of reserve officers.

3 Q. Thank you.

4 A. 125 of them, therefore, were appointed within a very short period

5 of time.

6 Q. Thank you.

7 MR. SEPENUK: And again, Your Honours, the specifics are reflected

8 in tab 12 under -- at the page I mentioned.

9 Q. Now, having set up a system of military courts, military

10 prosecutors, Defence lawyers, as you've testified, were there rules and

11 procedure in place for those courts to operate? And you can just

12 answer "yes" or "no" to that.

13 A. Yes. Yes.

14 Q. And as the war progressed and the number of crimes increased, did

15 you see a need to improve the system?

16 A. I did.

17 Q. And did you personally draft guidelines to improve the functioning

18 of the system?

19 A. I did.

20 Q. And are those guidelines reflected in tab 13 of Defence Exhibit

21 3D1110? "Yes" or "no"?

22 A. Yes.

23 MR. SEPENUK: And, Your Honours, this is at 3D11-0380 in the

24 English. I'm just going to pass on. I just want the panel to be aware of

25 it.

1 Q. Now, during the war, was part of your job to monitor the work of

2 the military courts in prosecuting crimes?

3 A. Yes.

4 Q. And to that end, did you visit military prosecutor's offices and

5 military courts to see how they operated?

6 A. I did.

7 Q. And very briefly, tell us about that. How many offices did you

8 visit?

9 A. I toured all the military courts and military prosecutor's offices

10 during their war; that is, 24 in total.

11 Q. All right.

12 A. Twenty-four courts and twenty-four prosecutor's offices, and that

13 is a total of forty-eight.

14 Q. And when you toured these military courts and prosecutor's offices

15 during the war, what were some of the physical problems, if any, that you

16 noticed, some of the physical problems and difficulties of operating the

17 court system? Just tell us briefly about that.

18 A. Of course there were some difficulties. When I say "of course,"

19 it's because we were under the conditions of war. There were daily air

20 strikes by the forces of NATO. They flew over the entire territory of the

21 former Republic of Yugoslavia. There were frequent air alerts and

22 military prosecutors had to move frequently from their locations. And

23 apart from that, communication with parties was made significantly more

24 difficult because the accused or suspects were supposed to appear before

25 the court. That created difficulties in the safety of movement and the

1 safety of movement of investigators and judges, especially in the area of

2 Kosovo and Metohija, because in addition to air strikes on that territory,

3 it was dangerous to move across that terrain in view of the danger posed

4 by terrorist forces in and around settlements. So there were significant

5 difficulties in communicating with parties.

6 In addition to that, units moved even more often than the courts

7 did, so that the work of prosecutors and judges was really very difficult.

8 Q. How about your office? Did you have to move?

9 A. I had to relocate with my department and my personnel. While I

10 was there in that position, we moved three times, and the location itself

11 changed to -- two to three times. So we moved in total five or six times.

12 That requires every time re-establishing communications, setting up in a

13 new place, and all the military organisations moved as well, so we had to

14 find each other again every time in order to be able to communicate.

15 Q. Now, General, after you'd been on the job for about a month, did

16 you write a report about the military judicial organs to that point, their

17 functioning to that point?

18 A. Yes, I did.

19 Q. And I want to direct your attention to 3D1110, tab 15. I'm going

20 to ask you if that's the report that you wrote. It's in e-court in

21 English 3D11-0404; in B/C/S, 3D11-0398.

22 MR. HANNIS: And, Your Honour, if -- if I may, I believe this

23 document is already in Exhibit P2826, which was admitted on the 28th of

24 March. So for the sake of efficiency, I would prefer that we refer to it

25 by that number, as it's already been used.

1 JUDGE BONOMY: Mr. Sepenuk.

2 MR. SEPENUK: Well, the thing is it's in e-court specifically

3 under pagination, there's 18 different tabs. And I have all my --

4 questions keyed to the e-court numbers for 3D1110, so I don't think it

5 would be -- it shouldn't be a particular problem for Mr. Hannis to follow

6 this. I always like to comply with anything that Mr. Hannis says, but I

7 think this one is, you know, pretty reasonable on our part.

8 JUDGE BONOMY: What you'll find, Mr. Hannis is that correct P2826

9 is a number that will be used eventually, but now that we know the two are

10 identical, then for the purpose of presentation at this stage, I think

11 it's acceptable for Mr. Sepenuk to proceed the way he's proceeding.

12 MR. HANNIS: That's fine, Your Honour. I don't have a problem

13 following. But for the sake of the record at the end of the case. And

14 while I'm up, I guess I should follow to go or three others in this

15 sequence.

16 JUDGE BONOMY: It is helpful if you do that, so that we don't lose

17 sight of the identity between two exhibits.

18 MR. HANNIS: Tab 14 wasn't mentioned, but what is P2825. Tab 16

19 is P953. Tab 17 is P954. Tab 18A is P955.

20 JUDGE BONOMY: Thank you.

21 MR. SEPENUK: And some of these, like 954 and 955, Your Honours,

22 we did refer to in our 65 ter summary.

23 Q. Now, General, do we have that up on the ...

24 So you see the report that you wrote on the left there and on the

25 right it's in English; correct?

1 A. Correct.

2 Q. Okay. Now, first let's get the dates straight. At the beginning

3 of the report, it says September 12th, 1999. And that flat out is wrong;

4 correct?

5 A. That's wrong. On the back side, on the last page, there is an

6 authentic date. This one is an error.

7 Q. And what is the authentic date?

8 A. 12 May 1999.

9 Q. That is when you actually wrote this report; is that correct?

10 A. Yes.

11 Q. And who was the report submitted to?

12 A. That report was intended for the Supreme Command Staff, and I

13 submitted it to the Department for Mobilisation and Reinforcement that

14 forwarded it to the Supreme Command Staff.

15 Q. Okay. Can we turn to section 2.3 of the report, 3D11-0405 in

16 English, and 3D11-0399 in B/C/S. And could you scroll up a bit on the

17 English to -- where it says 2.3. And if you would blow up 2.3, I'd be

18 grateful.

19 Do you see section 2.3, General?

20 A. Yes.

21 Q. All right. Now, the first paragraph of that - and I'll read it.

22 You follow in the B/C/S and make sure that I'm reading it correctly and

23 getting the full gist of the translation - "It was assessed that the

24 volume and complexity of the tasks faced by military judicial organs in

25 this strategic group was too great a load for the existing establishment,

1 and after making adjustments and overcoming initial difficulties, the

2 military organs have become fully operational."

3 Is that -- did I read that correctly? Is that what it says in the

4 B/C/S?

5 A. Essentially, yes.

6 Q. Okay. Now, that was your opinion, correct, that the military

7 judicial organs have become fully operational? Was that your opinion?

8 A. Yes.

9 Q. And throughout the remainder of your time as the chief of the

10 legal department of the General Staff, did you ever change that opinion?

11 A. No.

12 Q. All right. Now, go to the next paragraph. It says: "The first

13 organ -- the first-instance organs attached to the command of the third

14 army, the Nis Corps and Nis military District have proved extremely

15 efficient, unlike the judicial organs attached to the command of the

16 military district in Nis."

17 First I want to ask you: Is there an error in that paragraph?

18 A. A small error. It's a slip. The last one should be "the military

19 district in Pristina," not Nis. Because the military district in Nis

20 operated well and there were certain deficiencies and weaknesses in the

21 operation of the military district in Pristina.

22 Q. Can you be more specific? What were those problems? What were

23 the problems in Pristina?

24 A. Well, I -- I noted a moment ago that there were difficulties in

25 Pristina because intensive fighting went on there, so that the military

1 court attached to the command of the military district in Pristina did not

2 really have the right conditions for -- for working well, because the

3 conditions of movement, of prosecutors, witnesses and other parties was

4 very difficult and they could not operate properly. Those were the

5 objective reasons why they couldn't operate properly. And there were also

6 difficulties with filling all the vacancies. Later on, when the staffing

7 was complete, that improved a little, but there remained the

8 organisational difficulties.

9 Q. And is it fair to say that those difficulties remained pretty much

10 throughout the war?

11 A. Throughout the war, yes, because the circumstances didn't change.

12 They did not improve.

13 Q. Thank you. And would you please turn to the third paragraph,

14 where it says:

15 "Military judicial organs attached to the Pristina Corps Command

16 have encountered in their work very complex criminal cases that deal with

17 serious crimes (terrorism, murder, robbery, theft, et cetera), which

18 require the prosecutors and judges to have a high degree of expertise and

19 experience."

20 My question, General, is: How did you know about these crimes?

21 How did you find out about them? What was your sources of information?

22 A. Well, my sources of information were reports of military courts

23 and military prosecutor's offices that were submitted to the supreme

24 military court and supreme military prosecutor's office, who in turn made

25 available to me these reports about criminal cases and the criminal

1 proceedings initiated as a result. I saw from those reports that we are

2 facing very complex crime, that it is extremely complex work that requires

3 indeed a high degree of expertise and experience on the part of military

4 judges and prosecutors.

5 Q. All right. And you went on to say that --

6 JUDGE BONOMY: Before you move on, Mr. Sepenuk, Mr. Gojovic,

7 what's the reference there to terrorism.

8 THE WITNESS: [Interpretation] Well, that relates to terrorist

9 groups, ethnic Albanians that composed those terrorist groups. They

10 abducted people in one occasion, the suspects and the witness who came to

11 the court and on the way back to the unit three of them were abducted and

12 their fate remains unknown.

13 JUDGE BONOMY: The paragraph we're looking at, though, is dealing

14 with the military judicial organs dealing with serious crimes and

15 terrorism is given as one of the examples. Now, can you give me an

16 example of a crime of terrorism that the military judicial organs were

17 dealing with?

18 THE WITNESS: [Interpretation] Military courts during the war did

19 not prosecute those cases. They merely registered those cases, but many

20 of such cases were dealt with by the district courts, the civilian courts.

21 Military courts did not prosecute those cases.

22 JUDGE BONOMY: It's possibly my misunderstanding of this, but I

23 assume the military courts did not have jurisdiction over terrorists.

24 THE WITNESS: [Interpretation] This crime is not in the exclusive

25 jurisdiction of the military courts. It is in the jurisdiction of the

1 district courts. But they were victims of those terrorist acts.

2 JUDGE BONOMY: Can you answer -- can you answer my question: Did

3 the military courts have jurisdiction over terrorists? Yes or no?

4 THE WITNESS: [Interpretation] Yes. If they targeted military

5 personnel and provided they got caught.

6 JUDGE BONOMY: So that takes me back to my original question:

7 What are you referring to in that paragraph when you talk about terrorism

8 being one of the serious crimes that the military judicial organs were

9 dealing with? Can you give me an example?

10 THE WITNESS: [Interpretation] Well, I've just given you an

11 example. They faced those crimes, but they were not in a position to

12 catch the perpetrators. I mentioned that three military servicemen who

13 had come to the court were abducted. This is a crime. They were killed,

14 but their fate -- they were probably killed, but their fate remains

15 unknown. They're still missing. And abduction, an abduction -- every

16 abduction is a terrorist act.

17 JUDGE BONOMY: Thank you.

18 Mr. Sepenuk.

19 MR. SEPENUK: Thank you, Your Honour.

20 Q. Would you just turn to the next page, which is 3D11-0406 in

21 English and ... Okay. Do we have the English? 3D11-0406. And then

22 3D11-0400 in B/C/S.

23 Okay. And if you just make 3 a little bit larger. Thank you.

24 And do you notice, General, the paragraph that says "Number of

25 cases"?

1 A. Yes.

2 Q. Would you just -- let me just read one sentence to you. It

3 says: "Some 3897 persons have been indicted, 997 judgements have been

4 pronounced, 2393 criminal cases have been closed, and 205 on-site

5 investigations of destroyed buildings and other crimes have been carried

6 out." There's other matters in that paragraph. I'm not going to get into

7 them. It says: "Attachments 1 to 3."

8 Was the basis for those figures an attachment that is in this case

9 as tab 14 that we've previously discussed? You can answer that"yes"

10 or "no."

11 A. Yes.

12 MR. SEPENUK: And, Your Honour, for the record - and Mr. Hannis

13 referred to this before - tab 14 is the list of convictions per category

14 of persons, type of crime, and length of sentence as of 15 May 1999. And

15 it's 3D11-0392.

16 JUDGE BONOMY: Mr. Gojovic, when that paragraph refers to 2.393

17 criminal cases being closed, what -- what does "being closed" mean?

18 THE WITNESS: [Interpretation] I don't know. The translation is

19 not really very good. Case concluded? I don't know. Well, 7.800

20 criminal reports, requests for investigation filed against 2.911 persons.

21 THE INTERPRETER: Could the witness please slow down when reading.

22 JUDGE BONOMY: Mr. Gojovic -- Mr. Gojovic, just a moment. The

23 interpreter can't follow you if you speak so quickly. I wonder if you

24 could speak a little more slowly and deal with that --

25 THE WITNESS: [Interpretation] Yes. Yes. I understand. I merely

1 wanted to concentrate on what you asked me.

2 2.393 investigations that were completed. The investigating judge

3 completes the investigation and then submits the file or the dossier to

4 the military prosecutor's office. So after that, then you can have an

5 indictment. And the reason why I was a little bit confused is because the

6 term that I got back was "zakljuceni" not concluded. And then it says

7 that 3.897 persons were indicted and that 997 judgements were pronounced

8 and that 2.393 criminal cases were closed. If you -- if you add all that

9 up, that means that the proceedings in those cases were actually

10 completed.

11 JUDGE BONOMY: Well, I'm still not understanding that, then,

12 because I thought part of your answer there was to suggest that these

13 2.393 were not in fact completed. Are you saying they have been completed

14 but there has been no judgement in these cases?

15 THE WITNESS: [Interpretation] This figure, 2.393, this is about

16 the work of the court. The court has to conduct and complete an

17 investigation. The court completed a certain number of investigations,

18 and it -- they have to deliver judgements. They -- once they deliver the

19 first-instance judgement, the case is completed. And this is the figure

20 that relates to this stage in the proceedings.

21 JUDGE BONOMY: I'm sorry, I don't understand these figures,

22 Mr. Sepenuk. If -- if they're of any significance to you, you'll need to

23 have them clarified.

24 MR. SEPENUK: Thank you, Your Honour. I think that -- and I

25 agree. It's -- it's certainly not very clear to me either. But we are

1 going to go to another report of September which I think will clarify it,

2 a later report with, I think, more accurate -- more meaningful figures.

3 Thank you.

4 JUDGE CHOWHAN: I -- sorry to interrupt you, interrupting. But

5 he -- the general is a lawyer as well. When we talk of a case being

6 closed, that comes under -- under a technical heading; meaning that the

7 case didn't proceed. And it was closed at its nascent stage or without

8 any adjudicatory action in it. So this is where the confusion arises.

9 Does he mean closure of a case after a judgement or does he mean

10 closure of a case before a judgement? I mean, that would answer the

11 question.

12 I'm sorry, I'm talking of these number of cases here.

13 THE WITNESS: [Interpretation] Once a stage in the proceedings is

14 completed, that's what we're talking about. At this stage, we don't have

15 a final judgement, because the appellate proceedings are still pending.

16 So these are not cases that are closed in the sense that they have been

17 put ad acta.

18 JUDGE CHOWHAN: A very simple question. Is question is: These

19 cases which were mentioned were closed. Does it mean -- these 2393 cases.

20 Were they closed after a judgement, after an adjudication, or were these

21 collated prematurely before a judgement, before witnesses coming to

22 testify? Because these were not proceedable, these were not tenable in

23 law. This is the question -- the answer you have to kindly provide us

24 with.

25 THE WITNESS: [Interpretation] In those cases -- these cases are

1 not adjudicated. There is not a final judgement. Only a certain stage in

2 the proceedings was completed.

3 JUDGE CHOWHAN: Thank you.

4 MR. SEPENUK:

5 Q. Now, General, would you turn to paragraph 4, called "Basic

6 problems." ," which is also on the page that's in front of you. And you

7 talked about the difficulties of the work of the prosecutor of a large

8 number of cases in a very short period of time. Sometimes the lack of

9 legal evidence.

10 And then you go on to say: "There's a slight increase in more

11 complex crime, with an increasing number of perpetrators committing

12 serious crimes, which represents a threat to society and requires greater

13 engagement of the competent organs in order to uncover and prevent

14 crimes."

15 Is that something you noticed at the time?

16 A. Yes.

17 Q. And, again, though it might be repetitive, but I think it's

18 important: What were the sources of your information? How did you --

19 this gradual -- this increase in crime, where did you get that from?

20 A. This is all from the reports that I received from the courts and

21 the prosecutor's offices.

22 Q. And was this something that concerned you, this increase in crime

23 and the lack of -- the ability to --

24 A. Well, every increase in the number of crimes, especially if we're

25 talking about the complex and seriousness -- serious crimes, this is

1 something that is of concern for -- for anyone dealing with this kind of

2 issues.

3 Q. And as a result of this concern, would you look at paragraph 6.3

4 of your report and tell us what that is. And that's on page 3D11-0407 in

5 the English. Okay, and 6.3. Right.

6 We might need -- no, I think that's fine.

7 This -- this paragraph, General, says: "For units and organs at

8 other levels." And it says: "All unit officers must immediately report

9 to the competent military prosecutor any crimes and their perpetrators so

10 that they can be prosecuted, and any officers who do not adhere to this

11 will be made accountable and the strictest measures will be applied

12 against them."

13 Is that what it says?

14 A. Yes.

15 Q. And at about that time or slightly before that time, did you

16 discuss your concerns about this, about the increasing number of crimes

17 with General Matovic? And if you did, tell us what was that discussion

18 and who General Matovic is.

19 A. Well, when I wrote this report, the first person that I acquainted

20 with it was General Matovic, because he was my immediate superior. We

21 analysed the situation and we made our assessments, and this was something

22 that merited our attention, and we proposed the measures that had to be

23 taken at the lower levels, not only preventative -- not only sanctions but

24 preventive measures that would prevent other people from committing the

25 same kind of acts.

1 Q. And did you follow through and draft an order to be signed by

2 General Ojdanic on 10 May 1999, and that order reflected in tab 7 of

3 3D1110, which is 3D11-0320 in the English --

4 MR. HANNIS: I'm sorry, Your Honour. I just want to object to the

5 leading nature of that question.

6 MR. SEPENUK: Well --

7 MR. HANNIS: It would be better just to show him the document.

8 MR. SEPENUK: That's fine. I have no problem with that.

9 Yes. And by the way, this is also 3D483. It's already marked as

10 a Defence exhibit. I think it's in evidence. But, again, we're following

11 the tab structure, Your Honours.

12 And if you would look at 3D11-0320 - that's in the English - and

13 3D11-0315 in the B/C/S. We'll wait for the B/C/S to come up. There it is.

14 Q. Do you see that, General?

15 A. Yes.

16 Q. Just tell us what that is.

17 A. This is an order that I prepared myself for the signature of the

18 chief of the Supreme Command Staff, General Ojdanic. It was distributed

19 to all the units. They all had to familiarise themselves with the

20 contents of the order. And attachments were appended to this order, the

21 excerpts from the Criminal Code of the Federal Republic of Yugoslavia.

22 That dealt with the violations of the international humanitarian law.

23 This order has a number of paragraphs. The first paragraph

24 envisages that all the commanders at all levels in the units and all the

25 superior commanders have to take all the necessary measures in their units

1 to ensure that during combat and when not in combat all the unit members

2 should abide by the provisions of the international law of war. So this

3 is an imperative that had to be stressed once again.

4 And it was brought to the attention of all the commanders of all

5 the units that they are held personally responsible for any violations

6 that they commit themselves or any violations committed by their

7 subordinates. So the personal responsibility is stressed here. The

8 commanders of all units and all the superior officers have to take all

9 measures to prevent violations of laws and customs of international law of

10 war if they knew about any violations yet failed to take measures to

11 prevent them.

12 And in paragraph 4, every officer should be held personally

13 responsible if he knew that any such violations were committed and if he

14 fails to take appropriate proceedings against such -- such perpetrators.

15 And every person shall gather evidence against such persons and shall

16 submit a criminal report.

17 So this order was drafted in order to ensure that preventive

18 measures are taken and also to sanction all violations of international

19 humanitarian law, regardless of who the perpetrator is. This was

20 distributed to commanders of all strategic groups and the task was to

21 study that in the units and that all units should comply with it in their

22 work.

23 Q. I'm going to ask one more question on this, General. The -- in

24 paragraph 6, there's -- there's an annex to the order which is mentioned,

25 and it's -- it says that all -- all those reading the order should go

1 through the annex regarding criminal liability for war crimes and other

2 serious violations. And there was an annex attached to this report; is

3 that correct?

4 JUDGE BONOMY: Mr. Hannis.

5 MR. HANNIS: May I inquire, Your Honour, I don't have an English

6 translation of the annex, and I wonder if one exists. It doesn't appear

7 to be in e-court.

8 MR. SEPENUK: Yes, I didn't have that until very recently. In

9 3D483, it's not attached. It's come -- yes, we will make an English

10 translation available to Mr. Hannis right away.

11 Q. And is there an annex attached? I'd be glad to show it to you, if

12 it would help you. Do you want me to show you the annex?

13 A. Yes, there is.

14 Q. And the annex, just very, very briefly, provides for war crimes

15 against civilians and various other acts that -- that commanders should

16 pay attention to and should warn their units about. Is that a fair

17 statement?

18 A. Yes. That is the key issue, among other things.

19 JUDGE BONOMY: Mr. Gojovic, this -- this was prompted, you told

20 us, by an increase in criminal conduct. What was the general nature of

21 the increase in criminal conduct?

22 THE WITNESS: [Interpretation] Well, from the reports that I

23 received from the courts, from the president of the supreme military court

24 and from the supreme military prosecutor, if you monitor that, you become

25 aware of the increase in the number of persons against whom criminal

1 reports were filed, who were prosecuted and tried. You could see that

2 several perpetrators would commit a certain crime. That was a trend. And

3 this was something that required the attention on the part of the Supreme

4 Command Staff; attention should be drawn to this to prevent any further

5 increase in the level of crime, on the one hand; and on the other, to

6 improve the efficiency of the -- in the work of the military courts and

7 the organs that were involved in detecting the crimes in the field.

8 JUDGE BONOMY: What were the crimes which were being committed

9 more regularly?

10 THE WITNESS: [Interpretation] Well, in most cases, these were

11 crimes against property. There were quite a few murders, multiple

12 murders, and serious crimes of robbery with -- involving homicide. This

13 was carried out by some renegade groups that were no longer under the

14 control of their commands and then they perpetrated those crimes. And it

15 was evident that this type of conduct was very dangerous. The conduct of

16 such small group us that became loose cannons, that were out of control.

17 JUDGE BONOMY: I assume these are members of the VJ.

18 THE WITNESS: [Interpretation] Yes.

19 JUDGE BONOMY: Mr. Sepenuk.

20 MR. SEPENUK: Thank you, Your Honour.

21 Q. Now, following the war, did you write a report on the work of the

22 military judicial organs during a state of war?

23 A. Yes.

24 Q. And I'm going to refer you to your report of September 6th, 1999.

25 MR. SEPENUK: And I would like to say at this point, for the

1 record, Your Honour, there is an earlier report that we've marked as an

2 exhibit of June 20, 1999. This report amplifies on that, gives more

3 current data. I've spoken to Mr. Hannis about it. There's also an error

4 in that earlier report. I've -- I've told Mr. Hannis about the error.

5 He -- I don't know whether he's going to want to cross-examine on it or

6 not, but I want to just make it clear for the record there is the earlier

7 report. We're going to go to this report, 'cause I think it's -- it's

8 more expansive and it's -- it's more accurate.

9 Q. Tell us about that report. It's -- by the way, it's 3D986. And

10 it's at 3D06-0001 in B/C/S and 3D07-0375 in English.

11 And, General, this is a report of September 6, 1999. And why did

12 you write this report?

13 A. Well, it was completed at that time. Why was it written?

14 Q. Yes. By the way -- yes. By the way, we might put up 3D07-0376.

15 I think you've got the covering page in English. If you'd put up the next

16 page in English, which is the first page of the report. That's it.

17 Yes. Why -- how did you come to write this report?

18 A. Well, after the war ended and once all the data had been collated,

19 the chief of the General Staff, General Ojdanic, through his operations

20 organs ordered all sectors in the General Staff, all the organisational

21 units in the General Staff, within their purview during the war, that they

22 should submit a detailed report on their work, the problems, the

23 difficulties they had encountered, in order to study that and to draw some

24 lessons from it. This was the purpose of this report: To create a file,

25 some documents that would be then used to study the work, the practice,

1 and to see where the difficulties lay in terms of establishment,

2 organisation, in order to eliminate those deficiencies in any further

3 plans. That was the purpose of this report.

4 It was to be filed and to be used at a later date to study the

5 work of those organs during the war, what problems, what difficulties they

6 encountered, and to draw conclusions how to improve the operation of those

7 organs in the future. So that was the process of that -- purpose of that

8 report.

9 It is a voluminous report. It includes all the work from the time

10 when the state of war was declared until the end of their operation.

11 Q. All right. And if we could turn to page 3D07-0382 in the English

12 and 3D06-0006 in the B/C/S. Could you make it a little bit -- the top two

13 paragraphs a little bit larger, please, top three paragraphs. And then

14 the same with the B/C/S. Just the top -- yeah, that's fine. That's fine.

15 Okay. Now, we have some numbers again. I don't know -- I hope it

16 will clear this up, Your Honours, but let's -- let's just see.

17 You have -- it says in your report that "Military prosecutors

18 receive add total of" -- and again, this is as of September, correct,

19 19 -- 1999; correct?

20 A. Yes.

21 Q. It says: "Military prosecutors have received a total of 19.701

22 criminal reports, submitted requests for investigations of 5.630 persons

23 and indicted 7.097 persons. Military courts completed 3.052

24 investigations and issued 3147 judgements. In addition, they carried out

25 280 on-site investigations," et cetera.

1 And do you have those figures listed in your report at the end of

2 your report? Have you compiled those figures in your report? And I'll

3 specifically refer you to 3D-- in B/C/S 3D06-0014, in the B/C/S; and in

4 the English 3D07-0390.

5 Is it possible -- yeah, there we go.

6 So, General, do you recognise that as an attachment to your report

7 and does that set forth the figures you just testified to?

8 A. Yes, that's for the September report. The figures are somewhat

9 higher than the ones submitted in the 21st of June report. The simple

10 reason is that it covers the period ending on the 25th of June. The state

11 of war was ended on the 26th of June, so this covers this period.

12 In the five or six days, the courts intensified their work and

13 they tried to complete all the cases that were in the final stages. So

14 this is why the -- we have this final figure. The report of the 21st, the

15 data was compiled on the 18th and the 19th, so the figures are somewhat

16 lower. You should not be confused by that, because this report -- the cut

17 of date was the 20th [as interpreted] of June and this report in the

18 September -- in September summarises all the data -- the cut of date was

19 the 26th of June, because that's when the state of war ended. That is why

20 there is a discrepancy in the figures, but that should not confuse you.

21 But if you look at the number of adjudicated cases, there is

22 precious little of those, so there is no major discrepancy there, but

23 there is a big discrepancy in the number of criminal reports and the

24 requests for investigation, because military prosecutors wanted to get as

25 much done as possible in the period until the end of the state of war,

1 which ended on the 26th of June.

2 I don't know whether I was clear.

3 MR. SEPENUK: Yes. Well, Your Honour, is it time for a break?

4 Thank you, General.

5 JUDGE BONOMY: Mr. Gojovic, we have to break at this stage for 20

6 minutes. Could you please leave the courtroom with the usher and we will

7 see you again at ten minutes to 11.00.

8 [The witness stands down]

9 --- Recess taken at 10.32 a.m.

10 --- On resuming at 10.51 a.m.

11 [The witness entered court]

12 JUDGE BONOMY: Mr. Sepenuk.

13 MR. SEPENUK: Thank you, Your Honour.

14 Q. General, we were talking about the number of criminal judgements

15 that had been entered in -- in these cases, and I'd like to ask you: The

16 great majority of these proceedings, of these criminal proceedings, were

17 what -- for what crimes? The overwhelming majority were for what crimes?

18 A. Yes, the greatest part of them fell under Article 214 of the

19 Criminal Code, that is, failure to respond to the mobilisation call-up;

20 and Article 217, that is, going AWOL from one's unit. But in those

21 circumstances of general mobilisation, many people did not respond to the

22 call-up and proceedings were initiated against a great number of them.

23 Q. And according to your report, General, this constituted some 88

24 per cent of the cases; is that correct?

25 A. Correct.

1 Q. And what were the remaining 12 per cent?

2 A. The remaining 12 per cent encompassed all other criminal acts

3 committed at that time; that is, criminal acts against one's person, life

4 or limb, and criminal acts against property. They were at the same time

5 the criminal acts that were the best monitored.

6 Q. When you say "life or limb," what are the specifics we're talking

7 about? What kind of crimes related to life and limb?

8 A. All the criminal acts where the target, the victim is a human

9 being; that is, all forms of murder, regardless of how they were

10 perpetrated, all bodily arm -- harm or abuse, including rape. Those were

11 the criminal acts encompassed by this general name, where the object of

12 attack is a human being.

13 Q. Were there war crimes included within this life-and-limb category?

14 A. This category also encompasses war crimes, because they include

15 murders.

16 Q. But you don't have any specifics in this report, do you, sir, on

17 war crimes?

18 A. In that report, they fall in the category of these criminal acts.

19 There is no separate rubric.

20 Q. Now, General, simply what did you conclude in this report? What

21 was your conclusion?

22 A. Well, my conclusion in that report was that the courts in those

23 specific circumstances, within a relatively short space of time - that is,

24 two, two and a half months - worked very efficiently, managing to deal

25 with a great number of cases, a great number of cases were initiated and a

1 high percentage of them were completed in those circumstances which were

2 very difficult.

3 Q. And when you completed your report in September 1999, was

4 General Ojdanic still the chief of the army's General Staff?

5 A. Yes.

6 Q. Did you discuss your report with him?

7 A. No, not in September. It went to the operations department and

8 the institute for war information, for purposes of study.

9 Q. Now, General Ojdanic eventually became the Minister of Defence. Do

10 you recall that? In February 2000.

11 A. Yes.

12 Q. And what was your job in February 2000?

13 A. I was still at the General Staff. A bit later I moved to the

14 legal department of the Ministry of Defence.

15 Q. And did you eventually compile a report dealing with war crimes

16 and other serious crimes committed during the Kosovo war?

17 A. I did.

18 Q. And when did you do that?

19 A. I made that report in September/October 2001.

20 Q. And why did you compile this report?

21 A. A commission was established at that time, a commission of the

22 Ministry of Defence for cooperation with the Tribunal in The Hague,

23 because there had been some requests to submit certain documentation and

24 information regarding proceedings underway here, so the ministry set up

25 this commission in which I was deputy chairman, and I worked on that

1 commission to gather this kind of data on criminal acts that have been

2 perpetrated and can be qualified under the provisions of the international

3 humanitarian law.

4 Q. And is that report contained in tabs 18A and 18B of Defendant

5 Exhibit 3D1110? You can just answer that "yes" or "no."

6 A. Yes. Yes.

7 Q. And is that report, to your knowledge, also listed as a

8 Prosecution Exhibit 955?

9 A. Probably. I am not up to snuff with the figures.

10 Q. You're not the person to ask that, but I'll just note, for the

11 record, Your Honours, that it is 955.

12 Now, upon what was this report based? Upon -- your -- your report

13 of September 2001, upon what was it based?

14 A. It was based on the report of the military court in Nis that had

15 been submitted to the supreme military court, and I got it from there. So

16 it was based on information provided by the military court in Nis, which

17 had received all cases from military courts of The 3rd Army, that is, the

18 military court of the -- the military district of Pristina, the command of

19 the Nis Corps and the command of the Nis army. So all of these cases had

20 been submitted to the military court in Nis for further processing.

21 Q. And is that information for the military court in Nis reflected in

22 tab 17 of Defendant Exhibit 3D1110?

23 A. Yes.

24 MR. SEPENUK: And that's also, Your Honours, Prosecutor's Exhibit

25 954. And for the record, tab 17 covers pages 3D11-0496-0562, and I should

1 mention that tab 18 is divided into 18A and 18B. 18B is the crime of

2 rape, 18A is all other crimes and is in the record at 3D11-- this is again

3 Defendant Exhibit 3D110. 18A is 3D11-0645-0714. And 18B is

4 3D11-0728-0730.

5 Q. So the short of it is, General, that tab 18 was based on tab 17;

6 correct?

7 A. Yes.

8 Q. Now, after you prepared this report, did you discuss it with

9 General Ojdanic? And if you did discuss it, when did you discuss it and

10 what was said?

11 A. Yes, I discussed it with him. While he was still Minister of

12 Defence and while I was still chief of the legal department at the

13 Ministry of Defence, he asked data on criminal acts processed at military

14 courts during wartime to be organised, so that was finally done. I

15 familiarised him with the situation, based on that data, and I discussed

16 it with him.

17 Q. Did you discuss the number and type of war crimes that you found

18 and that you compiled in this report?

19 A. I informed him of the numbers and information that I had gathered,

20 and I showed him how it was shown in the report, how it was reflected. I

21 tried to make it very obvious and easily understandable for anyone who is

22 not a lawyer, and I thought it was easily understandable for him as well.

23 Q. And what was his response to that?

24 A. His first reaction was that the report was very well done, very

25 clear, and his only remark was that there were not many prosecutions and

1 trials for these crimes except for crimes against property, because all

2 robberies and similar crimes were included in the category of war crimes.

3 It can easily be put under "war crimes," although they had initially been

4 qualified differently.

5 And there were also some crimes involving war crimes of murder,

6 et cetera, were shown in the category of crimes against civilian

7 population of the ethnic Albanian community. The discrepancy was

8 considerable and we discussed why many of these perpetrators were not

9 found and apprehended, so I provided him with some explanation.

10 Q. And are you saying that he said that -- he noted that there were

11 not that many war crimes reflected in your report? Was that what he said?

12 Or you -- if not, tell us what he did say.

13 A. Well, he noticed that in the report, and he said that if you

14 compare the figures of, for instance, how many victims and -- were -- were

15 detected and processed without the perpetrators being detected he couldn't

16 understand how come so many crimes were reported and how come that

17 investigating bodies failed in all that time to identify the perpetrators

18 and take action. I explained to him that in times of war, it's very

19 difficult to identify perpetrators and find them, because the perpetrators

20 hide very well. There is an atmosphere of fear, so that even those in the

21 immediate surroundings of perpetrators are reluctant to report them. And

22 even in cases when only fighting men were concerned, this seemed to be

23 true as well. That is the flip side, the negative side of solidarity.

24 But it is typical of all soldiers that they are bound by ties of

25 solidarity regardless of the circumstances.

1 Q. And by unknown crimes -- in your report, had you noted a number of

2 crimes that were committed where the perpetrators were not known but that

3 investigations were being carried out? Is that true?

4 A. Yes.

5 Q. Now, General, do you know of a single reported war crime that was

6 not investigated and processed through the criminal justice system?

7 A. No, not a single one.

8 Q. And --

9 A. Anything that we found out served as a basis for initiating

10 proceedings by the competent military prosecutor and the military

11 prosecutor took every step to shed light on the case and to gather as much

12 information and facts as possible.

13 Q. And to make it clear, General, when I say "war crimes," I mean

14 murders, multiple murders, rape, arsons, robbery, looting, the classic

15 crimes of war. And given that definition, were all reported war crimes

16 investigated and processed through the system; yes or no?

17 A. Yes.

18 Q. Do you have any information whatever that General Ojdanic covered

19 up or concealed the commission of any war crime?

20 A. No. On the contrary, he constantly assisted that there shouldn't

21 be any failure in that respect, that all perpetrators should be detected,

22 and that every crime should be detected.

23 Q. Now --

24 A. Every consequence of every crime as well.

25 Q. Now, to summarise your report about war crimes committed against

1 civilians and murders of civilians - and that's, again, in tab 18 and

2 Prosecution Exhibit 955 - do you recall the total figures regarding the

3 number of perpetrators and the number of victims?

4 A. In that overview, we have totals for criminal acts that I

5 evaluated, I believe objectively as war crime against civilian population,

6 beginning with the classical war crime against civilian population, all

7 forms of murder, all forms of multiple murder, all cases of robbery

8 involving homicide. There was a total of 372 persons prosecuted. In

9 crimes against life and limb, that is murders, perpetrators were

10 prosecuted. There were in total 33 known perpetrators. Later on after

11 the end of the war another four were prosecuted. That makes 37. And still

12 later two more were found. In total, 39.

13 As for victims of the crimes, there were 40 arising from these

14 cases, and the victims were members of the ethnic Albanian community.

15 In addition to that, there were some cases of rape that were

16 detected and prosecuted; whereas, the second part deals with all forms of

17 crime against property, such as large-scale thefts of property from the

18 population, civilian ethnic Albanian population. Those were crimes

19 against the civilian population.

20 There were other crimes in which the injured party was an ethnic

21 Albanian. In total, there were 601 victims in 11 localities, and in those

22 cases, all judicial steps were taken by the judiciary; however, the

23 results were not adequate because only a short amount of time was

24 available and our units withdrew from Kosovo soon thereafter, so there was

25 not much time for detecting perpetrators of those crimes. However, these

1 cases are still ongoing and even now as we speak, the competent military

2 prosecutor is still working on them.

3 Q. Now, General, your report speaks for itself, but there are two or

4 three matters in the report that I do think need clarification. I want to

5 ask you about those now.

6 I notice that there are a number of charters under Article 14,

7 murder and multiple murder, and just a few charters under war crimes, as

8 such, Article 142. Can you explain that?

9 A. The article is 47.

10 Q. Yes. What did I say?

11 A. You said 14. That's Article 47 of the Criminal Code of Serbia.

12 Q. [Previous translation continues] ... I misspoke. Article 47.

13 A. Well, we have a much greater number of those crimes, and fewer of

14 them were processed as war crime against civilian population under Article

15 142. Those were cases in which the superior officer ordered his

16 subordinates to commit a crime. That was the classical form of war crime.

17 In all other cases where there is no involvement of the superior

18 officer in the commission of the crime, those murders were qualified by

19 the competent prosecutors as multiple murders, and when there was one

20 victim, it was qualified as murder, because the available sentence under

21 the law of Serbia was much higher. The most severe sentence is the death

22 sentence. And for the war crime, under Article 142 the lower sentence was

23 five years and the highest, twenty years. So the prosecutors opted for the

24 more severe sentence, which I believe is completely justified for the

25 point of view of prosecution.

1 Q. Another matter that I think needs clarification is that a number

2 of these investigations were deferred to various district courts. For

3 example, district court in Kraljevo or in Valjevo, that kind of thing.

4 What's all that about if why were certain prosecutions deferred to

5 district courts? Please tell the Trial Chamber about that.

6 A. In all those cases where the perpetrator was a military person or

7 a reserve soldier, after the state of war ended, the perpetrators were

8 demobbed. They were no longer soldiers. For such cases, therefore, the

9 military court was no longer qualified.

10 When the perpetrator is no longer in service, the jurisdiction of

11 the military court ceases and such cases are deferred to the district

12 court.

13 Usually the principal use is territorial, according to the

14 locality of where the crime was perpetrated. If that was not possible,

15 they were deferred to the court in the place of residence of the

16 perpetrator and the proceedings went on under the same legislation that

17 the military prosecution was guided by.

18 The military courts continued to have jurisdiction only over those

19 who remained in the army, and there were very few of those.

20 Q. All right. And then -- and another matter I think that should be

21 clarified is that none of these crimes specifically list any sentences

22 that were imposed. Is that correct?

23 A. No, not at that time, because for such crimes, war crimes and

24 multiple murder, there weren't any. And within the short time available,

25 the -- the court in question did not manage to complete the case.

1 Q. Have you since learned of certain sentences that were imposed in

2 these cases?

3 A. I did find out about certain cases. I found out either from

4 courts directly or from the press. I believe around 11 cases were

5 adjudicated.

6 Q. And very -- very briefly tell us what you found out.

7 A. I don't quite understand the question.

8 Q. Tell us, if you remember - or I can direct you to the report, if

9 you'd like - but do you remember the sentences that were applied to

10 various individuals that you've now since learned about?

11 A. Well, I learned that sentences from seven, eight, even fourteen

12 years were meted out. I believe the maximum one was fourteen years

13 imprisonment.

14 Q. Well, let's be specific. How about Dragisa Petrovic? Do you

15 remember he was charged with murder? Do you remember what his sentence

16 was?

17 A. Yes. I believe he got nine years.

18 Q. And Nenad Stamenkovic and Tomica Jovic. Do you remember their

19 sentences?

20 A. I think they got a bit less. Four or five years perhaps, but I'm

21 not sure.

22 Q. Well, does seven years -- I know I'm leading here, but does seven

23 years sound correct? If you don't remember, say so.

24 A. Well, all right, I don't remember, but seven years would be an

25 appropriate sentence, I think.

1 Q. [Previous translation continues] ... Forget about whether it would

2 be an appropriate sentence. If your memory is four or five year, we're

3 going to have to stick with that. All right?

4 A. Yes, right.

5 JUDGE BONOMY: And, Your Honours, this is at 3D11-0650 in the

6 cases that I just mentioned.

7 JUDGE BONOMY: What I'm not understanding at all here, Mr. Sepenuk

8 is the emphasis that was placed earlier on the importance of prosecuting

9 in the most serious court because of the potential of the death penalty.

10 And this evidence is that the longest sentence imposed for any crime

11 during this whole conflict was 14 years. Is that right?

12 MR. SEPENUK: I think that's true, Your Honour.

13 JUDGE BONOMY: All right. Thank you.

14 MR. SEPENUK:

15 Q. And by the way, on that subject, General, you've provided a brief

16 distribution of crimes in your report, but do you know or not know what

17 these individuals were eventually convicted of? Is that clear? Is my

18 question clear?

19 Do you know what --

20 A. Yes. Yes, it's clear.

21 Q. What was --

22 A. Eventually, wherever the case involved murder, they were convicted

23 of war crime against civilian population, because the Defence assisted on

24 that, so the courts re-qualified the case as one of war crime against

25 civilian population, which is legally justified and completely

1 appropriate.

2 Q. Let me ask my question again. You have provided in the report a

3 brief description of the crime; correct? It can be answered "yes" or"no."

4 A. Yes.

5 Q. But do you know when you're discussing sentences, seven year, five

6 years, whatever, do you know in fact what any of these individuals were

7 convicted for? Do you understand that question?

8 A. I understand the question. Some were convicted of the charges

9 that were leveled against them. In some cases, the charges of murder and

10 war crime was dismissed and the charges of robbery or aggravated robbery

11 remained and they were convicted of that.

12 JUDGE BONOMY: Mr. Gojovic, are you saying it is the right of the

13 accused person to choose whether he will be prosecuted for multiple murder

14 or prosecuted for a war crime?

15 THE WITNESS: [Interpretation] No. This is the right of the

16 prosecutor. The prosecutor issues an indictment, and he decides what's --

17 how to qualify in legal terms the criminal act. And then during the

18 trial, depending on the evidence in the dossier, the court may re-qualify

19 the act and the prosecutor may do so on the basis -- may request that this

20 be done on the basis of the facts. The accused does not have the

21 opportunity to do that. He is merely defending himself and trying to

22 point out that the crime he committed was less severe than the one he is

23 charged with. And it is up to the court to accept or not to accept

24 certain legal qualification of the act, on the basis of all the evidence

25 that was put in.

1 JUDGE BONOMY: Does that mean, then, that when you completed this

2 report, no one had been convicted for murder throughout the conflict?

3 THE WITNESS: [Interpretation] Well, in the overview, I think there

4 is something, but I don't think that any cases were finalised. But if it

5 is not shown in the overview, that means that none of them were.

6 JUDGE BONOMY: Mr. Sepenuk.

7 MR. SEPENUK: Thank you, Your Honour.

8 Q. And, again, just to complete the picture of actual sentences that

9 have come to your knowledge, do you have knowledge of Dragoljub Cirkovic,

10 his sentence?

11 A. Well, I know that he was convicted, but I really can't tell you

12 now off the top of my head what was the final sentence that was imposed on

13 him.

14 Q. Do you have notes with you, General, on these cases?

15 A. Well, I -- I do. I do have my notes here in the briefcase, but

16 I'm not using them now.

17 MR. SEPENUK: I had instructed the witnesses -- the witness, Your

18 Honour, not to use notes at all, but I think we're in an area now where it

19 might be permissible. At least, I would ask the Court's permission to

20 just let him consult his notes on this. These are not official documents.

21 These are simply notes.

22 JUDGE BONOMY: Mr. Hannis.

23 MR. HANNIS: Well, if he's going to be using them, Your Honour,

24 I'd like to have a copy.

25 MR. SEPENUK: That's -- I have no problem with that.

1 JUDGE BONOMY: Is there a copy?

2 MR. SEPENUK: There's -- no, I don't think there's a copy. He's

3 just got it noted on a piece of paper.

4 JUDGE BONOMY: Well, at the break, you would need to get and it

5 copy it, I think.

6 MR. SEPENUK: Okay.

7 JUDGE BONOMY: -- to satisfy Mr. Hannis' request.

8 Meanwhile, Mr. Gojovic, you may refer to your notes.

9 THE WITNESS: [Interpretation] Yes, I found it.

10 Dragoljub Cirkovic, he was convicted and sentenced to eight years in

11 prison.

12 MR. SEPENUK:

13 Q. And if you wouldn't mind going back to the one you were not

14 certain about before, that's Nenad Stamenkovic and Tomica Jovic. Do your

15 notes reflect the sentences they received?

16 A. Nenad Stamenkovic, Tomica Jovic -- Dragisa Petrovic, he was

17 sentenced to nine years. Nenad Stamenkovic was sentenced to seven years.

18 And Tomica Jovic also to seven years. They previously received milder

19 sentences, but the prosecutor appealed and the Court increased the

20 sentences.

21 Q. Okay. And --

22 JUDGE BONOMY: What were the crimes for which these seven-year

23 sentences were imposed?

24 THE WITNESS: [Interpretation] They were first charged with the

25 murder of several persons, but then it was re-qualified as a crime against

1 civilian population under Article 142, and that was the crime that they

2 were convicted of.

3 JUDGE BONOMY: But do you know what they actually did? What

4 physical act they were actually convicted of?

5 THE WITNESS: [Interpretation] Well, I can read it here.

6 Dragisa Petrovic, in the area or village of Susice, where his unit was

7 deployed. Ordered Nenad Stamenkovic and Tomica Jovic to kill Rukija and

8 Feriz Krasniqi, an elderly pair who didn't leave the village, and they did

9 so by discharging their automatic rifles at them.

10 JUDGE BONOMY: And that's what you get seven years for in that

11 system of justice, is it?

12 THE WITNESS: [Interpretation] Dragisa Petrovic was sentenced to

13 nine years, and the actual perpetrators, they got seven years.

14 JUDGE BONOMY: Thank you.

15 Mr. Sepenuk.

16 MR. SEPENUK: Yes. Your Honour, just to clarify, maybe it doesn't

17 need clarification, but I take the thrust of your question.

18 Q. That was -- you read from a brief description of the crime.

19 Correct, General?

20 A. Yes.

21 Q. But you know in fact what these men were sentenced for. I mean,

22 you weren't at the trial. You didn't attend the trial. You don't know

23 really the facts as adjudicated. Do you or do you not?

24 A. Well, I don't, but this is the essence: Two persons were killed,

25 two elderly civilians were killed during the war. So this is a war crime

1 against the civilian population, and that's what they were convicted of.

2 Q. Okay. Thank you. And I think the last -- not quite the last. But

3 how about Nebojsa Stankovic? That was an attempt to kill one person. And

4 it's at 3D11-0656 of 3D1110.

5 A. Yes.

6 Q. What was that sentence?

7 A. Four years in prison.

8 Q. Okay. And finally, General, as I understand it, that there is a

9 series of cases that you very recently learned about and, in fact, just

10 discussed with me yesterday. And would you just summarise very briefly

11 those cases. I'm talking about the cases involving Mancic, Radojevic,

12 Tesic, and Sergej.

13 A. Sergej Misel, yes. Those were four persons who were indicted at a

14 later stage. That was in 2002. They were convicted. The final sentences

15 they received -- Mancic received 14 years in prison. Radojevic was

16 sentenced to nine, Tesic to seven, and Sergej Misel to five years in

17 prison.

18 Upon the review of the Supreme Court of Serbia, sitting in a

19 special chamber, this conviction was quashed and we now have a retrial.

20 This was done for procedural reasons. There were some procedural

21 deficiencies in the previous trial and the Supreme Court quashed this

22 conviction and the case was -- went up for retrial.

23 Q. And just for the sake of accuracy, I take it these were cases, as

24 I understand it, where the charges against all the four were all the same,

25 and that is with killing two Albanians -- two persons of Albanian

1 nationality. Is that true?

2 A. Yes. Yes.

3 Q. And just, again, to clarify it, the initial sentences, as I

4 understand it, were seven years for Mancic, five years for Radojevic, four

5 years for Tesic, and three years for Misel, and those sentences were

6 doubled by the appeals court; is that correct?

7 A. Yes.

8 Q. But then the court --

9 A. Well, almost doubled. For the first accused, yes. But for the

10 other accused, it was slightly less than double. But, yeah, you could say

11 that.

12 Q. And the Supreme Court of Serbia reversed the judgement because of

13 newly discovered evidence. Is that a fair statement?

14 A. Yes, the Supreme Court of Serbia quashed. It did not reverse it.

15 The case went for retrial.

16 Q. Thank you, General?

17 MR. SEPENUK: That's all I have, Your Honours.

18 JUDGE BONOMY: Thank you.

19 Mr. Cepic?

20 Cross-examination by Mr. Cepic:

21 MR. CEPIC: Thank you, Your Honour.

22 Q. [Interpretation] Again, good morning --

23 JUDGE CHOWHAN: Just a minute. I hope you forgive me for that.

24 General, you have kindly spoken of 2.393 cases which you observed

25 were closed in your reports. Have you been able to scrutinise the record

1 of any of these cases for ascertaining whether the closure was in

2 accordance with law and principles of justice, or you just accepted the

3 figuration as it came to you and reported it accordingly? Was there a

4 scrutiny of record - that's my question - of those cases?

5 I'm very grateful.

6 THE WITNESS: [Interpretation] Well, I didn't go through the cases.

7 This would be a huge task. That was not my job. On the basis of the

8 information that I received in the reports from the supreme military court

9 and the supreme military prosecutor's office who had obtained the data, I

10 merely statistically processed the data and showed it in the overview.

11 The cases that are shown at tab 18, this thing that we were just

12 discussing, I went to the military court in Nis for the majority of those

13 cases, and that's where I was able to look into most of those cases just

14 to see what the status of the record is. But it was objectively

15 impossible to go through the thousands of those cases, 2.000 cases. That

16 was not the purpose of the report, to get into the merits of the case but

17 just to get a statistical overview of the work-load of those courts.

18 JUDGE CHOWHAN: So there was no scrutiny and not even a few cases

19 were picked up for purposes of acquaintance with the record and what had

20 happened with the procedure.

21 Forgive me if I said so. Does that mean that you were forwarding

22 figures in a mechanical way and reflecting these in your report without

23 giving any views on the quality of things?

24 Thank you.

25 THE WITNESS: [Interpretation] I took the data that I got at their

1 face value, and there was no reason for me to doubt the accuracy of the

2 data. There may be some kind of a statistical error, but that's all.

3 JUDGE CHOWHAN: Thank you.

4 MR. SEPENUK: Your Honours, I'm going to violate a cardinal rule

5 now. I'm going to ask a question that I don't know the answer to. And

6 I'm blaming my brethren who are experts in the continental law system, who

7 talked to me at the break. This may make things more confusing or, on the

8 other hand, it may clarify.

9 Further examination by Mr. Sepenuk:

10 Q. General, when an investigative judge refers a case to the

11 prosecutor -- and by the way, let me back up a little bit. In your

12 system, you have investigative judges, do you not?

13 A. Yes.

14 Q. And when the investigating judge refers the case to the

15 prosecutor, does that constitute a closing of the case as far as the

16 investigating judge is concerned?

17 A. Yes. He did his job. He closes his case. And he in any reports

18 states that this case is closed, that the investigation is completed.

19 MR. SEPENUK: So whatever elucidation that has, Your Honours, I

20 mention it.

21 JUDGE BONOMY: Mr. Sepenuk, this was in tab 15, I think. Is that

22 right?

23 MR. SEPENUK: This gets back to the question that Your Honours was

24 asking before. I'm not sure we have that problem with the -- I mean,

25 really I'm sure the figures that you want to look at are in that September

1 report and this report. I don't think the report that, Judge Chowhan you

2 were asking the questions on had the accuracy of these later two reports.

3 But to the extent that it was troubling, Your Honour, that might be one

4 way of looking at it, I must say I'm not familiar with the continental

5 system. So, again, a couple of my brethren grabbed me and said, "This is

6 the situation."

7 JUDGE CHOWHAN: Thank you.

8 MR. SEPENUK: Thank you.

9 JUDGE BONOMY: Mr. Cepic, please continue.

10 MR. CEPIC: Thank you, Your Honour.

11 Further cross-examination by Mr. Cepic:

12 Q. [Interpretation] General, I said good morning but I failed to

13 introduce myself. Let me do that now. My name is Djuro Cepic and I'm

14 representing General Lazarevic.

15 [In English] Please Exhibit Number 2490, P2490.

16 Q. [Interpretation] General, my learned colleague Mr. Sepenuk asked

17 you about the work of the investigating judge, and I would now like to ask

18 you some more questions, but could you please first look at the part of

19 the statement that will be shown in front of you on the screen very

20 carefully.

21 [In English] Could we have paragraphs 17 and 18, please.

22 [Interpretation] While we're waiting for this to come up, General,

23 we have a statement by Dr. Gordana Tomasevic. She's a forensic medicine

24 specialist. She testified in this case as a Prosecution witness.

25 General, could you please look at paragraph 17 and 18, where it is

1 stated that General Pavkovic then verbally ordered Dr. Tomasevic to go to

2 Stari Cikovo [phoen]. She said that she had asked for a court order and

3 that there was no court order. And then later on in paragraph 18, she

4 states that in addition to the military crime technicians, that an on-site

5 investigation was carried out by military crime technicians and bodies

6 were discovered in situ. There where they had been set on fire.

7 Were you able to look at this, General?

8 A. Yes.

9 Q. My general -- my question to you, General, is whether in this

10 particular case, whether everybody concerned acted accordance with the

11 law.

12 A. Yes. As far as I can see, this is an on-site investigation. The

13 crime scene technicians were there. They performed the investigation and

14 the photo file and the doctor, as the forensic medicine specialist,

15 visually inspected the bodies and ascertained that the bodies were

16 carbonised. Procedurally speaking, this is done properly in investigation

17 terms.

18 Q. Let us just make this clear. Is this in line with the provisions

19 on the Law on Criminal Procedure?

20 A. Yes, this is in accordance with the Law on Criminal Procedure.

21 Q. Thank you. So no order from the investigating judge was needed.

22 The crime scene technicians could have done that on their own.

23 A. This was an urgent -- urgent measures needed to be taken and there

24 was no need for any order on the part of the investigating judge. She's

25 talking about a fee, but this is absurd because she was sent there on

1 behalf of the military medical academy. She is there in an official

2 capacity. She is not there in her private capacity. She was not required

3 to give her opinion as an expert in a private capacity.

4 Q. Thank you, General.

5 [Previous translation continues] ... [In English] Exhibit Number

6 3D1110, tab 15. 15, tab 15. Could we -- I think that will be much more

7 easy if we have Exhibit number P2826. My learned friend Mr. Hannis has

8 underlined that that is the same document.

9 Could we have paragraph number 2.3, please.

10 [Interpretation] General, in paragraph 2.3, - the heading is "The

11 3rd Army - my learned colleague Mr. Sepenuk asked you a couple of

12 questions about that, but let me go back to that because I need some

13 clarifications.

14 In the third passage of this paragraph, the third passage that

15 begins with the words "military judicial organs attached to the Pristina

16 Corps Command have encountered in their work." And then it

17 says: "Terrorism, murder, robbery, theft." That's in brackets.

18 My question to you is: Do you know that the military judicial

19 organs had jurisdiction over the crimes of terrorism committed against the

20 personnel of the Army of Yugoslavia?

21 A. Yes, they had that kind of jurisdiction. That's what I said a

22 little while ago.

23 Q. And was there a substantial number of such acts, terrorist acts

24 targeting the personnel?

25 A. Well, those terrorist groups mostly targeted the Army of

1 Yugoslavia, the MUP organs, and the civilian population.

2 Q. Those terrorist acts, did they target civilians regardless of

3 their ethnicity?

4 A. Yes, there were such cases.

5 Q. Thank you, General.

6 JUDGE BONOMY: Can I take it that your questions, Mr. Cepic,

7 relate to a particular period of time? And if so, can we have

8 clarification? Because the report is dealing with the situation after the

9 16th of April, 1999.

10 MR. CEPIC: Could I spread my question for the longer time period?

11 JUDGE BONOMY: Well, it's useless to us, that sort of information.

12 MR. CEPIC: Okay.

13 JUDGE BONOMY: This is all about the operation of the military

14 judicial organs, and there is no point in using a witness like this to go

15 into vague general statements about KLA terrorism, which we all know was

16 happening on a fairly widespread basis throughout the area. I assume when

17 you're asking questions of this witness, you'll be talking about the

18 period after the 16th of April, when he took up his post, unless you're

19 going to establish another foundation for him to give evidence about a

20 different period in time.

21 So please try to focus the questions in a way that will -- will

22 assist us.

23 MR. CEPIC: Thank you, Your Honour.

24 Q. [Interpretation] You heard His Honour, Judge Bonomy. Let me

25 rephrase the question, then.

1 Mr. Gojovic, are you aware that in this period that was indicated

2 by His Honour that the terrorists -- that several thousands of Army of

3 Yugoslavia personnel were killed in those terrorist acts and that they --

4 those acts were prosecuted?

5 A. I do know that a large number of army personnel got killed in

6 terrorist acts, but I did not have this kind of information. I didn't

7 know about any prosecutions that were brought against members of those

8 terrorist groups. This could be done only if they were accessible to the

9 law enforcement. But I did not have that kind of data.

10 Q. Thank you, General. You explained to us about the murders and the

11 sentences envisaged for that kind of act. Now we are going to be dealing

12 with robbery in accordance with the provisions of the Republic of Serbia

13 Criminal Code, in Articles 168 and 169, robbery was dealt with, aggravated

14 robbery and robbery. Could you please tell us, what was the special

15 maximum sentence for the crime of aggravated robbery, as described in

16 Article 169?

17 A. I explained a little while ago. Aggravated robbery contains

18 murder, subsumes murder in itself, and the same kind of sentences

19 envisaged for those crimes as for multiple murder; from ten years --

20 THE INTERPRETER: Could the witness please repeat the maximum

21 sentence.

22 JUDGE BONOMY: The interpreter did not catch the maximum there,

23 Mr. Cepic.

24 MR. CEPIC: I'm sorry.

25 Q. [Interpretation] General, could you please tell us what was the

1 maximum sentence.

2 A. It was the death penalty and the lower sentence was ten years.

3 Q. If there are any mitigating circumstances, can the sentence then

4 go below the minimum?

5 A. No, not when these crimes are concerned.

6 Q. Thank you.

7 JUDGE BONOMY: Are there in your report any examples of a sentence

8 in excess of ten years being imposed for robbery?

9 THE WITNESS: [Interpretation] In this overview, at tab 18, there

10 is a certain number of people who were sentenced or convicted of

11 aggravated robbery. And as for the sentences, I can have a look, if

12 you're interested. I think that this is Majovic and I think another group

13 of them. There were ten or eleven of them. It's in this overview. Let

14 me just have a look.

15 There are seven of them: Aggravated robbery and robbery, but I

16 can't see whether the case was adjudicated or not, but seven of them were

17 indicted.

18 JUDGE BONOMY: Mr. Cepic.

19 MR. CEPIC: Thank you, Your Honour.

20 Q. [Interpretation] Just to clarify one point. It's a minor point,

21 but I still feel we ought to clarify it. In the meantime, in our country

22 the death penalty has been abolished, has it not?

23 A. The latest amendments to the Criminal Code of Serbia, in

24 compliance with European standards, abolished the death sentence.

25 Q. In view of this, in our legal system is the system of the milder

1 law applicable?

2 A. Yes. I believe this happens in every country. It is always the

3 law that is most favourable to the accused that is applied. If the new

4 law is more favourable for the accused, that's the one that's applied; if

5 it's the old law, then that's the one that's applied. So it's always in

6 favour of the accused.

7 Q. General, now a procedural question. When does the obligation of a

8 commanding officer who reports a crime end?

9 A. A military commander is duty-bound if a crime is committed to take

10 all steps to preserve the traces and discover the perpetrator. When he

11 informs the prosecutor or a criminal report is submitted or the military

12 police and military security are alerted, he has fulfilled his duty. From

13 that point on, it's the organs of detection that the competent prosecutor

14 is in charge of, that take over. So any legal responsibility and the

15 legal obligation of the commander then stops.

16 Q. Can he influence the work of the courts, of the prosecutor?

17 A. No. These organs are fully independent in their decision-making

18 and assessments of the cases that have been reported to them, a criminal

19 report filed and criminal proceedings instituted.

20 Q. Thank you very much, General. I have no further questions.

21 JUDGE BONOMY: Thank you.

22 Mr. Ivetic, do you have anything?

23 MR. IVETIC: No questions, Your Honour.

24 JUDGE BONOMY: Thank you.

25 Mr. Gojovic, you'll now be cross-examined by the Prosecutor.

1 Mr. Hannis.

2 Cross-examination by Mr. Hannis:

3 Q. Good morning, General.

4 A. Good morning.

5 Q. You mentioned at the start of your evidence that before you were

6 appointed general, Ojdanic came to see you and told you that he was trying

7 to find someone to improve the operations of the military courts. What

8 did he tell you about the nature and extent of the problems with the

9 military courts at that time, as of the middle of April 1999? Do you

10 recall?

11 A. Yes. He told me briefly that there were certain difficulties in

12 the organisation of the courts and their efficiency in the proceedings.

13 This had been noticed. It had been observed. And there was a request

14 that these difficulties be removed and that all the conditions for the

15 most efficient possible functioning of the courts be established. I am

16 referring both to the prosecutors and the courts and the technical

17 services, the military detention units. It's a complex mechanism, just as

18 the Tribunal here is a complex mechanism.

19 Q. Okay. Did he describe the problems as being in part due to the

20 personnel that were presently engaged in the process?

21 A. Yes, that was the central issue.

22 Q. And did he indicate to you that there were also problems in

23 matters being reported and investigated?

24 A. Well, no, because the submitting of reports is outside the

25 judicial system. It's the commanding officers or the organs of the

1 military police that file those. They are not part of the judiciary, so

2 that was not what was at issue. It was rather the judicial proceedings

3 themselves where the difficulties were observed.

4 Q. Okay. Thank you. Mr. Sepenuk asked you about the -- the rules of

5 conduct, the rules of conduct which you told us were printed on laminated

6 cards, and you said at page 8, line 20 today that every single soldier had

7 a copy. How do you know that, General? You didn't actually carry out a

8 personal inspection of every soldier in the VJ to make sure he had a copy,

9 did you?

10 A. No, I did not carry out an inspection, because that was not my

11 job. It's the military inspectors that have to do that. But it was part

12 of the equipment of every soldier. When I mobilised the military court, I

13 had a file with the equipment given to every individual, and it included

14 that plasticised card. So it's a set that is given to every soldier, just

15 as every soldier is issued with weapons and so on, he's also issued with

16 those laminated cards. It's part of his kit.

17 Q. Well, I understand you'd be saying that's -- that's what was

18 supposed to happen, and I understand that that's your belief, but as I

19 recall, I believe -- I believe we've had some evidence in this case

20 from -- from soldiers who served in the VJ who told us they did not have

21 that card and that they had not been briefed about those laws and rules of

22 conduct. So you don't know whether that's true or not, do you? There may

23 have been a shortage of cards, for example.

24 A. There were sufficient copies, but a soldier might have felt he

25 didn't need it. He might have lost it or thrown it away. But when he

1 puts on his boots, when he's given his equipment, his tent canvas and all

2 that, it's part of his kit. Then he's given that as well. It's just

3 simply a part of his kit.

4 Q. You mentioned the handbook for VJ in combat -- engaged in combat

5 versus terrorism. You mentioned this handbook was distributed, I think,

6 only to those soldiers engaged in those kind of operations. Is that

7 correct?

8 A. Yes. Yes, it was intended for them.

9 Q. Okay. And would -- under the circumstances, do you know if that

10 would have been given to all soldiers in Kosovo in April 1999? How was

11 that decided?

12 A. That's not how I understood it and what I said. The handbook

13 where terrorist actions are mentioned refers to the period outside of war.

14 In 1990, there was a state of war, and then the rules of war were in

15 force. But early in 1998 and earlier, when measures against terrorist

16 groups were being undertaken, that's when those booklets were handed to

17 those soldiers participating in anti-terrorist activities. But the one we

18 are referring to was issued when there was no state of war, and then there

19 was a different situation when there was a state of war, because then it

20 was not only terrorist groups but the forces of the NATO pact which were

21 conducting an aggression against Yugoslavia.

22 MR. ZECEVIC: For the sake of clarity, 72, 4, it says 1999 and the

23 witness says -- it says "1990" and it was 1999, actually.

24 JUDGE BONOMY: Thank you, Mr. Zecevic.

25 MR. HANNIS:

1 Q. General, had you finished your answer? Before I go to my next

2 question.

3 A. Yes. Yes, I have.

4 Q. Okay. You --

5 JUDGE BONOMY: Can I just back up a little and -- and clarify one

6 thing. When you took over at the General Staff, who did you replace?

7 A. Before that, there was General Svetislav Ristic. He was the chief

8 of the legal administration.

9 JUDGE BONOMY: And we see there right up until the 16th of April?

10 THE WITNESS: [Interpretation] Yes.

11 JUDGE BONOMY: What became of him then?

12 THE WITNESS: [Interpretation] He was relieved of that duty, and I

13 think he retired.

14 JUDGE BONOMY: Mr. Hannis.

15 MR. HANNIS: Thank you, Your Honour.

16 Q. We were talking about -- well, you were talking with Mr. Sepenuk

17 about the -- the criminal laws regarding murder and war crimes. You told

18 us Article 142 had a sentencing range of five to twenty years? Is that

19 correct?

20 A. Yes.

21 Q. And Article 47, murder, the sentencing range was from ten years

22 to -- to the death penalty; is that correct?

23 A. Yes.

24 Q. And multiple murder, is that the same sentencing range?

25 A. Yes.

1 Q. Okay. And what about voluntary manslaughter?

2 A. That was a far milder sentence, up to five years.

3 Q. And involuntary manslaughter?

4 A. Well, if it's involuntary, if it's an accident, then it's not a

5 crime. If there is an intention, if it's premeditated -- if there's no

6 intention, then it's negligence. But those are different legal

7 qualifications, depending on the actual facts.

8 Q. Well, I -- I ask the question because in one of the -- one of the

9 tables that I have- I think it's actually your Exhibit 955 - there are

10 listed a number of cases involving "involuntary manslaughter," is how it's

11 translated into English, Article 49. And I see one of those accused got a

12 sentence of two years; another one got a sentence of one year and three

13 months. So is it a criminal offence or not?

14 A. Yes, those are all criminal offences, but probably it was done out

15 of negligence.

16 Q. Okay. But for a violation --

17 A. It was involuntary manslaughter.

18 Q. For violation of Article 49, what is the sentencing range?

19 A. Those are aggravated cases of robbery.

20 Let me just check. Well, there's paragraph 1 and paragraph 2.

21 Paragraph 1 covers the use of force and weapons to take something from

22 someone by force. That's aggravated robbery.

23 In paragraph 2, if someone is deprived of his life, then that's

24 aggravated robbery and the sentencing range is from ten years to the death

25 sentence.

1 So there are two paragraphs in that article. If threats and

2 weapons were used only to take away things, that's one. And, two, if in

3 doing that the other person was murdered, that's a more serious form.

4 That's an aggravated form, and then the minimum sentence is ten years.

5 There was such cases. We had several persons accused of that

6 criminal offence in the period we are now talking about.

7 Q. And, General, perhaps we're missing something in translation. I

8 wasn't asking you about aggravated robbery. I was asking you about

9 various degrees of homicide. You told me in Article 47 about the range

10 for murder and for multiple murder. I ask you about voluntary

11 manslaughter, which I understand is Article 48, and you told me the

12 maximum sentence is up to five years. Is that correct?

13 A. Yes.

14 Q. Okay. And Article 49, which is translated into English

15 as "involuntary manslaughter," what's the maximum sentence for that? If

16 you know.

17 A. For involuntary manslaughter, it's at -- five years max, but for

18 voluntary manslaughter, it's not limited. But I have to look these things

19 up, because I've never been able to memorise them.

20 Q. Okay. You're not saying that the maximum penalty for voluntary

21 manslaughter could also be the death penalty, are you?

22 A. No, no, no. No, it's far less. I don't think it's more than ten

23 years. It's not more than ten years.

24 Q. Okay. Now, you mentioned the death penalty was abolished or

25 revoked in the Republic of Serbia in what year?

1 A. The latest amendments, I think, were made in 2005 or 2004. There

2 was a lengthy discussion about those amendments. I think it was actually

3 in 2003 that the death penalty was abolished.

4 Q. Okay. And how about in the Federal Republic of Yugoslavia? Wasn't

5 the death penalty abolished in 1993?

6 A. It was abolished in the time of the SFRY, in 1990. And then the

7 law was taken over by the FRY.

8 Q. Okay. So in 1999, the death penalty was not a legal sentence in

9 the Federal Republic; correct?

10 A. It was not.

11 Q. Now, near the end of your testimony - I think in your discussion

12 with Mr. Cepic, perhaps - you talked about the legal -- the legal concept

13 of the lesser penalty applying, that an accused is entitled to receive a

14 lesser penalty. How would that work, where in the Federal Republic there

15 is no death penalty and in Serbia there was? Would it -- could a person

16 still be sentenced to the death penalty even though the higher-level

17 government, the republic, did not allow for it?

18 A. It's possible. It's possible, because according to the federal

19 law, there is no death penalty and the person is tried for a certain

20 crime. As for murder as envisaged in the republican law, that is not a

21 criminal offence. That is legislated for at the federal level. I think

22 I've been clear. The federal law provides for certain criminal offences,

23 and there is no death penalty provided for those, so it would not apply if

24 a person was being tried for a crime that is provided for in the federal

25 law.

1 Q. And how would the military courts deal with the situation where

2 there -- say I'm a defence attorney in the military court. I have a

3 client charged with Article 47, death penalty eligible murder. Could I

4 ask to the court, "no, I want my client charged under the federal

5 provision for murder." Could he do that?

6 A. In the proceedings, in the way before that court, it's possible to

7 proffer evidence and insist if the crime was perpetrated in wartime, then

8 it might be a war crime against the civilian population rather than murder

9 as such. And all defence counsel always adduced evidence to that effect,

10 and then the courts would re-qualify the crime because all the

11 circumstances indicated that this should be done.

12 JUDGE BONOMY: Mr. Hannis, my understanding of this, if it helps -

13 and it may be wrong - is that murder or multiple murder is not a crime

14 under the federal court.

15 MR. HANNIS: I think you're right, Your Honour. I think that's

16 what I understood the situation to be.

17 JUDGE BONOMY: All right.

18 MR. HANNIS:

19 Q. But, General, in Kosovo in 1999 during -- during the conflict with

20 NATO, in every instance where somebody from the VJ murdered a civilian,

21 all those crimes would be eligible to be treated as war crimes against

22 civilians under Article 142; correct?

23 A. Yes.

24 Q. The -- am I correct that the only situation where a soldier in

25 Kosovo in 1999 could have been charged with a death penalty murder and not

1 entitled to have a -- have it treated as a war crime would be where he

2 killed another VJ soldier, for example, or perhaps a MUP policeman,'cause

3 they're not civilians? Is that right?

4 A. Yes, that's correct.

5 Q. So no death penalties were imposed for any murders in Kosovo in

6 1999; correct?

7 A. That's correct. In the FRY, for the last 30 years not a single

8 death penalty has been carried out, although such crimes have been

9 committed.

10 Q. And that means in the Republic of Serbia as well no death

11 penalties carried out; is that right?

12 A. That's right, yes.

13 Q. Okay. Is there any reason that a -- a VJ soldier who killed a

14 civilian in Kosovo in 1999, assuming the appropriate mental state, is

15 there any reason he could not be charged with both a violation of Article

16 142 and a violation of Article 47?

17 A. He could not be charged simultaneously with two crimes for a

18 single action if the consequences of the action amount to a death. So it

19 can be only one criminal offence he's charged with. Whether it's murder

20 under the republican law or Article 142, but kit not be both

21 simultaneously for the same action.

22 Q. And I assume that applies to an aggravated robbery in which a

23 death occurred. So he -- he couldn't be charged with aggravated robbery

24 and murder. It would have to be one or the other. Is that right?

25 A. Yes, because it's subsumed in the criminal offence. Anyone who

1 deprives someone of his life using weapons in order to deprive them of

2 their property. It's a cumulative action.

3 Q. And do you know -- do you know how prosecutors made the choice

4 between charging someone in a particular killing with a violation of

5 Article 142, Article 47, or the aggravated robbery statute? Because it

6 seems to me that on many -- in many factual circumstances, any one of

7 those three charges might apply.

8 A. Not in all cases. With aggravated robbery, that's a specific

9 criminal offence. One takes away property and deprives someone of their

10 life in order to do that. So that's one criminal offence.

11 When we're dealing with murder or war crimes against civilians,

12 the consequence is the same, the killing of a person, and then the

13 prosecutor can decide how he's going to qualify the act and the prosecutor

14 usually went for the more serious one, for the one with the higher

15 sentence in order to have more room for manoeuvre and if the state of the

16 evidence so indicated, he could then go for the lesser sentence, but he

17 could not do that at a later stage. That's why -- he couldn't go for the

18 higher -- higher sentence at a later stage, which is why they went for it

19 at the outset, because then they would have more room for manoeuvre. He

20 would have more room than if the lighter sentence were applied.

21 Q. Well, I -- can you explain for us a little bit about what you mean

22 by "room for manoeuvre" in this context.

23 A. Well, let's take a hypothetical situation. A soldier abandons his

24 unit, runs away, goes off in the opposite direction. He bursts into a

25 house or a coffee-shop and he kills ten people. If the prosecutor were to

1 qualify this as a war crime, saying that in a time of war a multiple

2 murder was committed, such a high sentence cannot be imposed. And then

3 later on it's established that it was not a war crime but that it was a

4 multiple murder carrying a far higher sentence but the prosecutor can no

5 longer re-qualify -- he cannot amendment the indictment now, because from

6 the outset he decided on the crime for which a lighter sentence is

7 imposed.

8 If, however, at the outset he went for multiple murder and then

9 it's established that there was some kind of military assignment involved

10 and that he can go for Article 142, some sort of mission, then he can do

11 that at a later stage.

12 I don't know if I've been clear enough now.

13 JUDGE BONOMY: Can I ask something, Mr. Gojovic, to try to clarify

14 one aspect that's concerning the Judges. In the FRY, was any part of the

15 territory, federal territory so that it did not strictly fall within

16 either the Republic of Serbia or the Republic of Montenegro?

17 THE WITNESS: [Interpretation] No. No. The territory was integral

18 and unified, and on the entire sovereign territory the law of the Federal

19 Republic applied for designated criminal acts.

20 JUDGE BONOMY: Thank you.

21 JUDGE CHOWHAN: And so if a crime took place within the capital,

22 what would be the choice? Which republican law will be applicable in that

23 territory of the capital? There would be a capital territory. And if

24 somebody commits a crime, now, here is somebody to decide whether it will

25 be one republic or the other. How can that happen?

1 And did -- did not your Penal Code have any prescription for --

2 for punishment against murder? That also. I mean, that's causing a bit

3 of confusion.

4 THE WITNESS: [Interpretation] The Criminal Code of the Federal

5 Republic of Yugoslavia did not envisage the criminal act of murder. That

6 was regulated by republican laws.

7 The federal law only deals with criminal acts against the federal

8 state, the army, and some other institutions as covered by international

9 conventions.

10 JUDGE CHOWHAN: What about the capital territory?

11 THE WITNESS: [Interpretation] Every law applies on the entirety of

12 the territory. So the federal law applies to the whole territory of the

13 Federal Republic of Yugoslavia, regardless of where the crime was

14 committed, and it is enforced.

15 JUDGE CHOWHAN: [Previous translation continues] ... I'm not

16 asking -- General, I interrupt you. I'm sorry. What I mean is if a crime

17 takes place, let's say in the capital, let's say in the parliament

18 building. Then what law would be applicable? Which -- of which of the

19 republics? I mean, that is ...

20 THE WITNESS: [Interpretation] In that case -- well, the federal

21 law applies wherever the crime envisaged is committed, be it in Belgrade,

22 Nis, or whatever village. If the criminal act concerned is covered by the

23 federal law.

24 If the crime is covered by the republican law, then the law of

25 Serbia applies to crimes committed in the territory of Serbia and the law

1 of Montenegro applies to crimes committed in Montenegro. That is the

2 principle.

3 JUDGE CHOWHAN: If the crime takes place in the parliament

4 building in the capital and which law -- and a murder takes place, which

5 law will be applicable?

6 THE WITNESS: [Interpretation] Of the Republic of Serbia, if it's

7 murder.

8 MR. HANNIS: Your Honour, is this an appropriate time for the

9 break?

10 JUDGE BONOMY: It would be. Thank you.

11 Mr. Gojovic, we have to take another break at this stage for half

12 an hour. If you could again go with the usher, please. We will resume at

13 ten minutes to 1.00.

14 [The witness stands down]

15 JUDGE BONOMY: When we resume, we shall sit without Judge Chowhan,

16 who has urgent personal reasons for not being here at the next session.

17 --- Recess taken at 12.22 p.m.

18 --- On resuming at 12.54 p.m.

19 [The witness entered court]

20 JUDGE BONOMY: Mr. Hannis.

21 MR. HANNIS: Thank you, Your Honour.

22 Q. General, Mr. Sepenuk asked you about the report you prepared and

23 later discussed with General Ojdanic. I think we're talking about Exhibit

24 P955, which is tab 18 for you. You mentioned that there were a total of

25 372 persons prosecuted and in crimes against life and limb, that is,

1 murders, perpetrators were prosecuted, there were in total 33 known

2 perpetrators. And later on in the war, another four were prosecuted.

3 That makes 37. And still later two more were found, for a total of 39.

4 So is 39 the total number of VJ soldiers who were prosecuted for

5 crimes against life and limb during the conflict between 24 March and --

6 and late June 1999? Is that the grand total?

7 A. Yes.

8 Q. And what was -- if you know, what was the highest sentence, the

9 highest number of years imposed for any one of those convicted for those

10 crimes? Do you understand my question?

11 A. Yes. 14 years imprisonment, as far as I know.

12 Q. Now, at page 50 today, line 13, you were speaking about Article

13 47. You mentioned that you had a greater number of those crimes and fewer

14 were processed as war crimes against civilians. You said those were cases

15 in which the superior officer ordered his subordinates to commit a crime.

16 That was the classical form of war crime.

17 So in those cases where a lower-ranking soldier, say a private,

18 was ordered by a commander to -- to shoot civilians, in those cases the

19 privates were prosecuted under Article 142 for -- for a war crime? Is

20 that correct?

21 A. 142, yes.

22 Q. And is that -- is that because it was deemed to be more fair to

23 prosecute them with the -- with the charge that carried a less-severe

24 penalty because in essence they were carrying out an order from their

25 superior? Is that why that was done?

1 A. That was the appropriate legal provision. That was the textbook

2 example of that criminal act. That's how it was described in the law.

3 Q. And in those -- in a factual scenario like that, what would --

4 what would the superior officer be charged with?

5 A. Also the same charge, under Article 142.

6 Q. Okay. I -- I saw a description of -- of a -- a charge in a

7 factual scenario like that where the officer was charged with inciting a

8 war crime. Is that the proper terminology?

9 A. Yes, there is such a charge, incitement, ordering someone else to

10 commit a criminal act is incitement.

11 Q. And is there any difference in the penalty for inciting, as

12 opposed to the -- the principal act of murder? Or does it carry the same

13 penalty?

14 A. It carries the same penalty, although it's possible to punish

15 responsibility for incitement harsher than perpetration. It depends on

16 the criminal base and how the criminal responsibility is evaluated.

17 Q. Okay. Now, in that factual scenario, say where we have a -- a

18 major telling two privates to shoot civilians, they're charged with a war

19 crime against civilians. Could he be charged with incitement to murder in

20 that factual scenario?

21 A. No, he can be charged with only one of them. Either Article 142,

22 which seems to be obvious -- but privates cannot be charged with war crime

23 against civilian population, and the one who ordered it cannot be charged

24 with murder at the same time; incitement to murder, that is.

25 Q. Okay. But if the -- if the privates had been charged with murder

1 under Article 47, then the major, in my factual scenario, could have been

2 charged with incitement to murder; correct?

3 A. Yes, correct.

4 Q. And if, as I understood you to explain before, the prosecutor who

5 wants more room to manoeuvre, in our factual scenario he could have

6 charged the privates with murder and the major with incitement to murder,

7 and then he would have had lots of room to manoeuvre in that case;

8 correct?

9 A. He would have more room to manoeuvre insofar as he would be able

10 to re-qualify it as a war crime.

11 JUDGE BONOMY: One of the things you are recorded on the English

12 transcript as saying is that privates cannot be charged with a war crime

13 against the civilian population.

14 MR. HANNIS: But then he goes on to say and the one who order it

15 cannot be charged with murder at the same time. I think if you read it

16 together, it -- it makes sense.

17 JUDGE BONOMY: I don't -- it doesn't make sense to me, Mr. Hannis.

18 I've tried.

19 THE INTERPRETER: Interpreter's Correction: If I may, the

20 sentence would read properly if it read "the privates cannot be charged

21 with murder while -- or sorry, with war crime while the one who incited

22 them is charged with murder."

23 MR. HANNIS: I can ask another question.

24 JUDGE BONOMY: No, that makes sense now. But if you want to

25 pursue it, yes, please.

1 MR. HANNIS: Okay.

2 Q. If I understood, General, then it seems like what you're saying is

3 that -- that in that fact scenario those three individuals have to be

4 treated separatory. So either they're charged as a murder or all charged

5 with a war crime, with the major charged with inciting it?

6 A. Yes. Yes, precisely.

7 Q. Thank you. But in your system -- because in my system, it could

8 be done this way -- could there be some kind of later adjustment of the

9 crime? Say they'd all been charged with the murder and the major charged

10 with incitement to murder. If the prosecutor felt in fairness it would be

11 appropriate to treat the privates more leniently and re-qualify their

12 crime as a war crime against civilians, could the incitement to murder

13 charge remain in place for the major, or would it have to be changed too?

14 Do you follow?

15 A. That, too, would have to be re-qualified into war crime against

16 civilian population.

17 Q. Okay.

18 A. Or incitement to war crime.

19 Q. Okay. I think I understand now. Thank you.

20 Now, you mentioned that in the cases where the perpetrator was a

21 military person, a reserve soldier, and after the state of war ended if he

22 was demobilised, then the military court no longer had jurisdiction and

23 the case had to be transferred to a civilian court. Is that correct?

24 A. Yes, correct.

25 Q. And that's true no matter what stage the proceedings might be at

1 with regard to the reserve soldier.

2 A. It doesn't matter at what stage, except if the indictment has been

3 confirmed by the relevant court, then the court continues with the case.

4 Until that time, the case can be deferred to a civilian court. Since we

5 had no exceptions of that kind, all such cases were deferred to civilian

6 courts and they proceeded there, except in those cases when the accused

7 continued to serve in the army.

8 Q. Okay. So if the indictment had been confirmed before the reserve

9 soldier is demobilised, then the case could continue in the military

10 court, even though that guy's not in the army anymore.

11 A. Yes. Yes. Right.

12 Q. Do I understand your answer to be you didn't have any such

13 situations at the end of this war. Correct?

14 A. We did not.

15 Q. And explain for me briefly, if you could, how does the indictment

16 get confirmed? By whom? And how long does that normally take?

17 A. After the indictment is brought and the court receives it, the

18 president of the trial chamber, which is going to deal with the case makes

19 the indictment available to the accused and his Defence counsel. If they

20 file an objection to the indictment, a Chamber decides on that objection,

21 it can be granted, saying that there are deficiencies and shortcomings in

22 the indictment and it has to be revised, and then the investigating judge

23 goes on collecting new evidence.

24 If the trial chamber rejects the objection, the indictment is

25 thereby confirmed. If there have been no objections and all deadlines -

1 namely, eight days from the issuing of the indictment - are expired, the

2 indictment automatically become -- enters into force unless the president

3 of the trial chamber himself finds that the indictment is imperfect and he

4 returns it for further work.

5 Once the indictment is confirmed, a trial date can be set and

6 proceedings can start. The deadlines are rather short and that leaves

7 more time for -- for actual work.

8 Q. And let me back up, then, on -- on the front end of the process.

9 Who presents -- who delivers the indictment to the judge?

10 MR. ZECEVIC: Sorry.

11 MR. HANNIS: Oh, I see Mr. Zecevic on his feet.

12 JUDGE BONOMY: Mr. Zecevic.

13 MR. ZECEVIC: I'm so sorry. I believe the part of the answer by

14 the witness has not entered the transcript.

15 Actually witness says that this process takes rather a long period

16 of time. And it wasn't recorded. I mean, maybe my friend can-- can deal

17 with that once again.

18 JUDGE BONOMY: Where do you say that should be in the answer,

19 Mr. Zecevic?

20 MR. ZECEVIC: The deadlines -- it's 88, 6: The deadlines are --

21 are short in fact, but the process takes a relatively long time to -- to

22 reach this stage of the process, or something along these lines.

23 JUDGE BONOMY: Thank you for that clarification.

24 Mr. Hannis.

25 MR. HANNIS:

1 Q. General, let me approach it this way. And I know I'm asking you

2 to make some rough estimates, but because of your experience, maybe you

3 can help us. In this scenario in Kosovo, say a report was made of -- of

4 war crimes against a civilian. And it's not a complicated case. You may

5 have three perpetrators and two of them have -- have confessed. There's

6 physical evidence on the scene. Photographs have been taken, et cetera.

7 It's a relatively non-complex, straightforward case. Can you give us an

8 estimate of how long it would take for that case, during the wartime

9 conditions, which we understand made it more difficult -- would that be a

10 matter of days or weeks or month to get to the stage where an indictment

11 could be confirmed by a judge?

12 A. There have been no cases, although objectively speaking if

13 everything is so easily available and handy, the investigation condition

14 completed, the necessary forensic procedures can be completed, and the

15 indictment can be issued within two or three months. It can be done. But

16 all these cases were complex and there were no such easy situations in

17 which indictments could be raised while the state of war was still in

18 force.

19 Courts began to receive cases only in the second half of April. So

20 it was a relatively short time. From these overviews, you can see how

21 many cases were processed. In terms of statistics, that indicates a

22 rather high degree of efficiency; although, courts, of course, first dealt

23 with those cases that were easier and where the facts were clear. We did

24 not have cases of the kind that you describe, where everything was

25 documented and that could have been dealt with while the state of war was

1 still in force, but we had no such clear-cut cases.

2 Q. Okay. Do I understand you correctly that were there no cases

3 involving life and limb in which indictments were confirmed before the end

4 of the conflict in June 1999, or did -- did some cases manage to get

5 processed before the end of the war, cases involving life and limb?

6 A. Yes. Yes, there were some minor cases that included elements of

7 war crime against civilian population. But in none of those cases did it

8 come to the stage of valid indictment; otherwise, they would have been

9 resolved, since it wasn't done within the state of war situation, that

10 means that no indictments entered into force in time.

11 Q. Okay. For those reserve soldiers, at the end of the war how did

12 they get demobilised? As soon as the -- as soon as the agreement is

13 signed, are they automatically demobilised? Do they get an order? Does it

14 take some time afterwards before they receive their paperwork? How did

15 that work?

16 A. Well, after the state of war ceased, all the units were pulled out

17 of Kosovo and demobilisation was affected within a relatively short time,

18 not more than five or ten days.

19 Q. Okay. And then the case that had previously been proceeding in

20 the military court which is no longer viable once that reserve soldier is

21 demobilised, to what -- to what civilian court does the military court

22 defer?

23 I understand the first option would be at the location where the

24 crime occurred, but I guess as a practical matter, when we're talking

25 about Kosovo in June 1999, that didn't happen. The cases would then be

1 transferred to what civilian court? One in Serbia proper? Not Kosovo?

2 A. I understood the question. With a cessation of the state of war,

3 under the law military courts and military prosecutor's offices must cease

4 their work. They can no longer act in such cases. They were duty-bound

5 to submit all their cases to the military court in Nis. So all the cases

6 from Kosovo had to be placed before the military court in Nis.

7 The military court in Nis took over all those cases and started to

8 act upon them. And in those cases where the perpetrator was no longer in

9 army service, the case would be deferred to the district court, but those

10 cases from district courts from Kosovo and Metohija were relocated to

11 Serbia proper. So it was to district courts in Serbia would deal with

12 them if they had been constituted and had started working by that time.

13 If not, they would be -- the cases would be forwarded to another

14 court under the decision of the Supreme Court of Serbia, because that had

15 been requested, and the relocation would be to a court which had

16 jurisdiction in the place of residence of the perpetrator.

17 So first -- the first priority, the first step would be the

18 district court from Kosovo relocated to Serbia or to the place of

19 residence of the perpetrator.

20 In all those cases where a war crime is involved, nowadays they

21 are tried before the special chamber for war crimes, unless a trial had

22 started already.

23 Q. And when was that special chamber created?

24 A. That was established ... Well, I didn't keep track, but I think it

25 was in 2003 or 2004.

1 Q. Between 1999 -- the -- after the end of the war and the creation

2 of that special chamber, then for a reservist who was demobilised, his

3 case that previously had been pending in the military court would have

4 been sent to a district court either in Kosovo or in his place of

5 residence; is that correct?

6 A. Yes, with a proviso that all courts in Kosovo and Metohija were

7 relocated. They did not remain in the territory of Kosovo and Metohija.

8 They no longer functioned there. They were relocated to some other place,

9 in Serbia. And that's where they received those cases for trial. For

10 instance, the district court of Pristina was relocated and its base is now

11 in Nis. Other courts were relocated to other places.

12 Q. Now -- now I understand. The court that previously had been --

13 the district court that previously had been in Pristina after the war for

14 these purposes was relocated to Nis and the reservist who had been

15 demobilised will either be tried there, if his crime happened in Pristina,

16 or he could be tried in the district court in his place of residence.

17 Correct?

18 A. Yes.

19 Q. Who decided whether he would be tried in Nis for that Pristina

20 crime or in his district court at his place of residence? How were those

21 decisions made?

22 A. Well, that is regulated by the Law on Criminal Procedure. If the

23 local competent court is unable to deal with it- for instance, the

24 district court of Prizren - it is the Supreme Court of Serbia which

25 decides to which court it will then be delegated.

1 There is no self-initiative or -- or liberal decision-making.

2 There is a specific procedure which governs this issue. It's the

3 so-called delegated local jurisdiction, territorial jurisdiction.

4 Q. And does the defendant -- or does the accused have no right to

5 request that Pristina court sitting in Nis that his case be transferred

6 from there to his place of residence? Isn't that -- is that not a right

7 available to him?

8 A. He may file a motion, but it is mainly the prosecutor who files

9 motions on such issues, or maybe the court, which has the case in its

10 hands. The court may say that it does not have the necessary

11 prerequisites to try the case and may ask the Supreme Court of Serbia to

12 decide to which court to delegate it.

13 Q. Okay. Thank you. I want to next ask you about Exhibit P2826,

14 which was tab 15.

15 MR. HANNIS: Your Honours, I understood that at the start of the

16 session we were having some trouble with e-court. I don't know if you

17 will be able to --

18 JUDGE BONOMY: That's now resolved, Mr. Hannis.

19 MR. HANNIS: Okay.

20 Q. This is the document that's entitled "Information about the work

21 of judicial organs in the time of war." You explained to us that this was

22 dated the 12th of May, 1999. That's the date on the last page. And

23 that's the number 12 -- the date 12 September 1999 is incorrect.

24 A. Yes.

25 Q. This is a document that you prepared?

1 A. Yes.

2 Q. On -- on the copy I have, General, unlike many other military

3 documents in this court, I -- I see no signature and there's no stamp that

4 we see on most of those documents. Can you tell us why that is? Is this a

5 draft or is this the final copy that was sent to the Supreme Command?

6 A. That's the final version. When it was drafted, I submitted it to

7 General Matovic in the department for mobilisation, reinforcement and

8 systemic issues, and he was supposed to submit this brief with the

9 accompanying enactment to the Supreme Command Staff, because I as chief of

10 department cannot go directly to the Supreme Command Staff. I have to go

11 through my superior command. And this short brief was revised a bit, and

12 it went from the department from -- for mobilisation and reinforcement and

13 it was used as a basis for changes to units and lower commands. And you

14 must have the version signed by Risto Matovic that went to lower levels.

15 So this is the same thing without a signature.

16 It is not a significant shortcoming legally and formally speaking.

17 Q. It's not a shortcoming to have no signature and -- and no stamp on

18 the document?

19 A. But there is an indication of the institution which drafted it,

20 and that is quite sufficient, because this same data is used later on and

21 the department for mobilisation, reinforcement and systemic issues uses

22 this information and supplies it together with its accompanying document

23 to the Supreme Command Staff and to lower levels.

24 Q. Have you seen the final official version that you say

25 General Matovic forwarded on?

1 A. No. This is the final version, and there is only the cover letter

2 that was signed by General Matovic. That letter is signed. It is logged

3 in, and that cover letter comes with this report.

4 Q. I understood your earlier answer to indicate that there were some

5 minor revisions. Do you know what changes were made?

6 A. Well, revisions, yes, in the sense that the tasks and the proposed

7 measures that should be taken at a level of the Supreme Command Staff or

8 army level. This is not something that I can state. The administration

9 for reinforcements and mobilisation is the proper organ. General Matovic

10 and -- those corrections were made, and it was indicated there that this

11 report was sent on behalf of the administration for mobilisation,

12 reinforcements, and systematic issues, not on behalf of the legal

13 department. That's why I couldn't sign it, because it was sent from the

14 administration and at the head of that administration was General Matovic,

15 and that is why the cover letter was there, to meet those formal

16 requirements.

17 So the corrections were really minor, and they went in this

18 direction to give greater weight to this report.

19 Q. Could we go to page 2 of both the English and the B/C/S.

20 General, when Mr. Sepenuk was asking you questions under item 2.3

21 in the -- regarding the 3rd Army, in the second paragraph you indicated to

22 us that there was an error in the last word in the second paragraph and

23 that it should refer to the military district in Pristina rather than Nis;

24 correct?

25 A. Yes. Yes, that's the last part of the sentence. It's "the

1 command of the military district in Nis," and it should read "Pristina,"

2 because we have the military district in Nis reference -- referred to in

3 the previous text and the one in Nis worked fine, unlike the one in

4 Pristina. So this is just a typo, and that went unnoticed. That's the

5 essence, because linguistically speaking, this just doesn't make any

6 sense.

7 Q. I agree. Do you know if it was changed in the final version that

8 General Matovic sent on?

9 A. No. This is the version that went out.

10 Q. Attached to his separate cover letter.

11 A. Yes.

12 Q. Okay. In the next paragraph you mention that in their work, very

13 complex criminal cases that deal with serious crimes. And you mentioned

14 terrorism. Judge Bonomy asked you about the military court's jurisdiction

15 over terrorism cases. During -- between April and June of 1999, were the

16 military courts prosecuting any cases of terrorism, for example, against

17 captured KLA members or other individuals who had tried to carry out

18 terrorist acts against the VJ?

19 A. As far as I know, I did not get any such information. I don't

20 think that there were any such cases. Perhaps they were in the

21 pre-criminal procedure stage, but there were no such cases that were

22 already in the judicial stage. There were terrorist acts, but the

23 perpetrators were not captured. And in order to try somebody, to

24 prosecute somebody, you need to have that person.

25 I don't have that information. I'm not aware of it. Perhaps

1 there were such cases, but I didn't hear of any of them in the reports.

2 Q. Why did you include that phrase about terrorism, then, to show

3 that the military judicial organs attached to the Pristina Corps command

4 had encountered these complex criminal cases dealing with serious crimes?

5 It doesn't sound like terrorism was taking much of their time or

6 expertise.

7 A. I did give an example. There were such cases. They encountered

8 such acts but were unable to prosecute them. So this is why I put it

9 here.

10 I gave you an example, when terrorist groups kidnapped two

11 soldiers and an officer who had come to the courthouse on that day, and

12 after being examined before the court as witnesses, they were to go back

13 to their units but they were abducted on the way back and their fate

14 remains unknown. All the relevant organs took measures to investigate

15 this, but it was impossible.

16 During the war, in Kosovo and Metohija, as far as I can remember,

17 about 30 members of the army are still missing. They were not killed in

18 action. They had been abducted, and their fate remains unknown.

19 So these are the acts of terrorism and the judicial organs

20 encountered that kind of difficulties. This is why this is included in

21 this report.

22 Q. In your statistics for the -- the cases that were done by the

23 military judicial organs, where would a -- a crime involving terrorism be

24 listed? Would that be among the statistics for other crimes?

25 A. Well, it could be in the other crimes rubric, but I cannot really

1 tell you whether any such proceedings were conducted and whether the

2 indicted persons were actually prosecuted, because they were unknown and

3 until you catch the perpetrator, you don't know who it is, so these are

4 unidentified perpetrators and you are not likely to find those in any of

5 the reports that we had in our file, and it's impossible to go and look

6 for them in the other crimes, because you have to prosecute an identified

7 person with a full name. You cannot prosecute an unidentified

8 perpetrator. And those acts of terrorism, we couldn't identify the

9 perpetrators.

10 Q. Are you -- did you ever see a -- a report from General --

11 Colonel -- General Delic's 549th Brigade about prosecutions in his area of

12 responsibility?

13 A. No, no, I didn't get anything like that from him, and he was not

14 duty-bound to do so. I got my reports from the courts, not from the

15 units.

16 Q. And during the state of war, could KLA -- say, captured KLA be

17 prosecuted in civilian courts, or only in the military courts?

18 A. Before military courts, if the military personnel was targeted. If

19 the MUP units were targeted, then this was in the jurisdiction of civilian

20 courts.

21 Q. In item 2.4, you're talking about the Navy, and I'm reading from

22 the second sentence. It says: "Even though they have not had a large

23 number of cases, three judges openly stated that they would not act on

24 criminal cases, using as their excuse that their safety, personal

25 security, and jobs were not guaranteed ...."

1 Do you know why they felt that their personal security and jobs

2 were not guaranteed if they were to handle criminal cases?

3 A. I know about this circumstance, because the Republic of

4 Montenegro, its government, once the state of war was declared, instead of

5 making it possible for the conscripts to be mobilised into their wartime

6 units, they, contrary to the needs, proclaimed the universal work

7 obligation, which meant that all the conscripts that had to go to the

8 units, they were picked up and they were assigned to work units. And there

9 was no need whatsoever for those work units. So those work units exist

10 under the law on defence. You have to mobilise people in order for -- to

11 supply the needs of the defence industry and so on. But this is the way in

12 which they tried to go around the mobilisation call, but the judges who

13 responded to the mobilisation call, they received threats and the judges

14 found themselves between the rock and the hard place, whether to respond

15 to the call-up and to perform his duties as a mobilised person and then

16 face being fired because he went against a decision of the government.

17 So these were the situations that we're talking about here.

18 Some judges who actually did work in the military court, they were fired

19 from their courts where they actually were employed. This was a violation

20 of the law, but the republican organs did that. Unfortunately, it's a

21 fact.

22 Q. Thank you. Could we go to the next page in both languages. And in

23 item number 4, General, you were talking about basic problems. Yes, the

24 second paragraph: "There is a slight increase in more complex crime,

25 with an increasing number of perpetrators committing serious crimes ...."

1 Was this increase -- was this noticed increase in crimes a result

2 of better reporting or reporting of crimes that had happened earlier, or

3 was it a result of new and additional crimes being committed at the time

4 you were writing this in May of 1999, or is it some combination of those

5 two things?

6 A. Well, all those factors existed. Such an assessment can only be

7 made on the basis of the data one receives, on the basis of the number of

8 persons against whom criminal reports were filed. But then once the court

9 proceedings began -- begin, then we have the qualification of the act. We

10 have the number of perpetrators that took part in the combination of the

11 criminal acts.

12 You can see that from the overview, where you can see the number

13 of participants.

14 Then on the basis of these data, you can conclude that we have a

15 larger number of perpetrators, with more serious crimes. So we have

16 better reporting and we have the fact that the court proceedings were

17 instituted -- were speeded up on a fast track.

18 So we cannot really rule out any of these factors. If you have a

19 crime that is not detected, then this crime doesn't exist for the person

20 compiling a report. So only when a case comes to the prosecutor, once the

21 proceedings are initiated, then you get the data about the crimes and the

22 perpetrators. And you can ascertain that there are several perpetrators

23 who committed one and the same act. And this is what is actually

24 presented here in a single sentence, to make it clear in a nutshell so

25 appropriate measures could be taken, first of all, to prevent any such

1 increases and also to detect any crimes that have already been committed

2 as soon as possible, because if a crime is detected and if a criminal

3 proceedings are instituted, that acts as a deterrent.

4 Q. Let me stop you here. I think you've answered my question.

5 The next question relates to that. You say "there is a slight

6 increase in more complex crime." What's your definition of "more complex

7 crime"? What were you talking about there?

8 A. Well, we're talking about more serious crimes that involve several

9 participants or perpetrators. They are more difficult to detect because

10 people tried to cover up. And these are the factors that make those

11 crimes more complex.

12 So they are more serious in the manner of their perpetration. We

13 have several perpetrators. The consequences are more severe. Evidence is

14 being eliminated. This makes it more difficult to detect such crimes and

15 to prosecute them.

16 Q. Can we go to the next page.

17 And, General, I want to ask you about Article number 6,"Proposed

18 measures." You mentioned in item 6.1, number 4: "Compile fortnightly

19 reports on the work of military judicial organs and send them to the unit

20 commands."

21 Do you know, was -- was that done? Was that implemented?

22 A. Yes. And we actually set a tighter deadline at -- at a later

23 stage.

24 Q. Do you know where those reports would be found today?

25 A. Those reports have to be in the archive. Reports were made and

1 data were then distributed to the lower commands. Excerpts were made and

2 were sent to the relevant units. They contained data that were relevant

3 for those units.

4 Q. Would this be in the archives of the legal administration?

5 A. This is all in the central archive.

6 Q. Can we go, then, to the last item, 6.3, "For units and organs at

7 other levels."

8 Number 2 says: "When military judicial organs prosecute, they

9 must give priority in their work, within the law and their competencies,

10 to cases where the perpetrators have a higher level of education and are

11 in responsible positions in the Yugoslav Army or society."

12 In your report, can you tell us how many officers were prosecuted

13 for crimes against life and limb?

14 A. Well, the information is in here. I can't give you the figures

15 off the top of my head. There were not many of them, but there were such

16 cases.

17 Q. Well, on one of -- we'll have to look at it tomorrow, but on one

18 of the -- one of the charts I'd seen, it did have a breakdown by rank for

19 the various categories of crime. And I think the total number for life

20 and limb crimes and -- and the one I'm thinking of was somewhere in the

21 neighbourhood of 32 or 34 individuals. There might have been one

22 non-commissioned officer and all the rest were privates or reservists.

23 Isn't that correct?

24 A. Well, if it is contained in the overview, then it's correct for

25 that period.

1 MR. HANNIS: Your Honour, can we break for the day? I'll have to

2 show him that chart tomorrow. I'm sorry, I have about 30 minutes, I

3 think.

4 [Trial Chamber and registrar confer]

5 JUDGE BONOMY: Mr. Gojovic, we have to terminate the proceedings

6 for the day at this stage, since there will be another case in this

7 courtroom in the afternoon. That means that you will have to come back

8 tomorrow to complete your evidence, and that will be at 9.00 tomorrow

9 morning. Between now and then, as I'm sure you're very much aware, it's

10 vital that you should have no discussion with anyone about the evidence in

11 this case, any part of the evidence. Please confine your communications

12 with other people to matters other than the evidence in this case.

13 Now please leave the courtroom with the usher, and we shall see

14 you at 9.00 tomorrow morning.

15 [The witness withdrew]

16 --- Whereupon the hearing adjourned at 1.46 p.m.,

17 to be reconvened on Wednesday, the 3rd day of

18 October, 2007, at 9.00 a.m.

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