1 Tuesday, 15 February 2005

2 [Open session]

3 [The witness entered court]

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

5 [The accused entered court]

6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, will you please

7 call the case.

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

9 number IT-01-47-T, the Prosecutor versus Enver Hadzihasanovic and Amir

10 Kubura.

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

12 Can we have the appearances for the Prosecution, please.

13 MR. MUNDIS: Thank you, Mr. President. Good morning, Your

14 Honours, counsel, and everyone in and around the courtroom.

15 For the Prosecution, Stefan Waespi, Mathias Neuner, and Daryl

16 Mundis, assisted by our case manager, Andres Vatter.

17 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis.

18 The appearances for the Defence now, please.

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

20 Good morning, Your Honours. On behalf of General Enver Hadzihasanovic,

21 Edina Residovic, counsel; Stephane Bourgon, co-counsel; and Alexis

22 Demirdjian, legal assistant. Thank you.

23 JUDGE ANTONETTI: [Interpretation] The other Defence team, please.

24 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On

25 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin

1 Mulalic, legal assistant.

2 JUDGE ANTONETTI: [Interpretation] The Chamber on Tuesday, the

3 15th of February, 2005 bids good morning to all those present, the

4 representatives of the Prosecution, all the attorneys, the two accused, as

5 well as the witness, who is present in the courtroom. And I do not wish

6 to omit mention of the personnel of this courtroom as well as those

7 outside the courtroom.

8 We need to continue the testimony of this witness within the

9 framework of the cross-examination, and I shall give the floor now to

10 Mr. Waespi.

11 MR. WAESPI: Thank you very much, Mr. President.

12 WITNESS: MLADEN VESELJAK [Resumed]

13 [Witness answered through interpreter]

14 Cross-examined by Mr. Waespi: [Continued]

15 Q. Good morning, Mr. Veseljak.

16 A. Good morning, Mr. Prosecutor.

17 Q. I'd like to continue our discussion about a few of the exhibits,

18 and the first one I want to talk about is -- comes out of the bundle of

19 the Defence. So if you could also be given the binder.

20 MR. WAESPI: And, Your Honours, the document I want to talk about

21 is one of the judgements, and that's part of the fourth tab, the fourth

22 big tab, and it's the second document within the fourth tab,

23 subtitled "Judgement." And specifically that's Defence Exhibit DH155/7,

24 and it's a judgement of 3rd June 1993.

25 Q. Did you find that, Mr. Veseljak?

1 A. Yes, I have.

2 Q. Now, here -- you weren't the -- one of the judges, I see, but the

3 presiding judge was a Mr. Strika. And first of all, that's again one of

4 these crimes you mentioned yesterday. You see it both in the English and

5 B/C/S version, the bottom of page 2 and 3. The issue is the willful

6 abandonment of positions, stealing of cows, stealing of children's

7 bicycles, and so on. That's basically what this judgement is about.

8 I'm interested in though -- in page 6, the second paragraph in

9 your language, B/C/S. Page 6, second paragraph.

10 MR. WAESPI: And in English, Your Honours, it's the last

11 paragraph on page 5.

12 Q. And I'll read it out for the benefit of -- of everybody: "During

13 the presentation of evidence at trial, with the parties' consent, the

14 court read the records of witness interviews held with witnesses Mirsad

15 Ehic, perhaps, and Avdo Buljubasic from preliminary proceedings, examined

16 the report by the battalion of the 303rd Mountain Brigade, a document

17 certifying that the accused were members of the 303rd Zenica Mountain

18 Brigade, a certificate for the temporarily confiscated items, and a copy

19 of the criminal records of the accused."

20 Now, Mr. Veseljak, what I would like you to help us is this

21 mentioning of a document certifying that the accused were members of the

22 303rd Zenica Mountain Brigade. Now, what are these certificates? Who

23 issues them, if you know?

24 A. These are certificates or a document which in principle was

25 issued by the brigade indicating the name of the brigade and the text that

1 such-and-such a person was a member of that brigade, and it was on that

2 basis that the competence was established -- or rather, the capacity of

3 the person as a military person. So such certificates or receipts could

4 in principle be issued by a civilian body responsible for mobilisation.

5 In most cases we had certificates issued by brigades indicating that a

6 certain person was a member of such an entity at a certain point in time.

7 Q. And the court authorities, the judges, they would rely on this

8 information.

9 A. As these are documents as a public document, then the assumption

10 is that they are correct. Should that be questioned, then it could be

11 verified.

12 Q. Thank you. Let's move on to a second issue.

13 MR. WAESPI: And, Your Honours, I have another document I would

14 like to show the witness which is not contained in the bundle I have --

15 you have been given yesterday. That's P660, Exhibit P660. It's -- it's a

16 short document, just -- just one page. It appears to be a document dated

17 1st April from the 306rd Mountain Brigade.

18 Q. Now, what I'm interested in, Mr. Veseljak, and perhaps you can

19 help us after you have familiarised yourself briefly with its contents,

20 what I'm mostly interested in is item 3, "Unusual incidents and relations

21 with the HVO," just at the bottom of it. And let me read out again what I

22 have in the English version: "In the afternoon of 31st March 1993, the

23 body of a foreign citizen in a BH army uniform was found by the Zabilje

24 village, Zukica-Most road. The investigating judge took on the case and

25 the security organ will send details of this," and then it goes on to talk

1 about the impact it had on the HVO.

2 Now, it talks about a investigating military judge who took on

3 the case. Do you remember this incident? Is it possible that you were

4 concerned with this incident?

5 MR. WAESPI: Mr. President, I think one of the Defence counsel

6 has something to raise.

7 JUDGE ANTONETTI: [Interpretation] Yes.

8 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President.

9 Our remark has -- relates to the fact that this document

10 obviously relates to the Travnik military court, so it doesn't apply to

11 the region of Zenica municipality nor the district military court of

12 Zenica.

13 JUDGE ANTONETTI: [Interpretation] The Prosecution, you asked the

14 witness whether he was involved in this case, and the Defence tells us

15 that this area is within the jurisdiction of the Travnik military court

16 and not of the one to which the witness belonged.

17 MR. WAESPI: Mr. President, I believe the witness testified

18 yesterday about the jurisdiction of the Zenica high court, and he said

19 there were two military courts - the one in Zenica and then the one in

20 Travnik - and I think five or six other military courts or basic courts.

21 He didn't say in which area he was exercising his jurisdiction as a duty

22 judge. At least, I'm not aware. And he can certainly tell us whether,

23 you know, he was involved in that incident or not. That's entirely up to

24 the witness.

25 JUDGE ANTONETTI: [Interpretation] Ask him whether he was

1 competent to investigate in the zone of the village of Zabilje.

2 MR. WAESPI: You heard the question of the Presiding Judge. Were

3 you competent to investigate an incident which occurred in this Zabilje

4 village, Zukica-Most area or road?

5 A. No. I explained -- the Prosecutor probably misunderstood. In

6 this area we were talking about, there were two district military courts

7 and five or six basic civilian courts, not military courts. So the court

8 I worked in did not have territorial jurisdiction over this location that

9 is referred to in this document, so I'm not familiar with it.

10 Q. Now, in your area, were you ever called to attend the scene where

11 a foreign citizen was found in an ABiH uniform? Did that ever occur to

12 you?

13 A. No, never. It never happened.

14 MR. WAESPI: Thank you. If the document could be returned.

15 Q. The next issue I would like to raise with you involves three

16 exhibits in your bundle, the bundle I gave you, yes, to the left. And

17 these are tabs 11, 12, and 13. And it involves Exhibits P777 - that's

18 tab 11 - Exhibit P779 - that's tab 12 - and Exhibit P774 - that's tab 13.

19 Now, this appears to involve a incident, if we start with tab 11,

20 that occurred in May, early May. And if you look at first Exhibit 11 --

21 at tab 11; that's Exhibit P777. That's an order from the Operations Group

22 Lasva, the command, and the order was given to the commander obviously of

23 the 309th Brigade. Now, this order says that something has happened, an

24 unfortunate incident, and the order is to this commander of the 309th

25 Brigade that he immediately look into it and issue a written report.

1 That's under item 1.

2 And item 2 - I'm still tab 11 of that order dated 5th May, 1993 -

3 it says what exactly he needs to do, meaning taking written statements of

4 people such as Chief of Staff, commander of companies, and so on, and he's

5 been given a couple of days to complete this order.

6 Can you see that in this document?

7 A. Yes, that's correct.

8 Q. Now, the second document is just a few days later. That's

9 tab 12; Prosecution Exhibit 779. And here obviously the commander of the

10 309th Brigade has completed what he has been ordered. He talks about the

11 Chetnik ambush on the first page, and he lists on the last page, page 4,

12 in the English version, he lists his report as an attachment and also the

13 statements of various people, as ordered.

14 Now, the document I would like to ask you is now the last

15 document. This is tab 13. That's a criminal report dated 31st of July,

16 1993. It appears to originate from the 3rd Corps command and is signed by

17 a Mr. Dugalic, as it appears on this page. That's P Exhibit 774,

18 addressed to the military prosecutor's office in Zenica.

19 Now, what you can see here is that apparently the 3rd Corps has

20 looked into this issue and he basically directs the military prosecutor's

21 office to take measures to identify the individual who perpetrated this

22 crime as well as possibly other crimes and to instigate criminal

23 proceedings against him before the military court in Zenica which has

24 jurisdiction in the matter.

25 It also in the last paragraph, the last sentence says: "By

1 interrogating of witnesses on all of the circumstances surrounding the

2 crime."

3 And then the annexes list the report we have seen in the previous

4 document and statements.

5 Now, my question to you is: Is that the typical course of action

6 that the military look first into their side and then they hand the --

7 their findings, their witness statements, over to the military prosecutor

8 with certain directions or guidelines? Would that be a normal course of

9 action, Mr. Veseljak?

10 A. Except for the fact that I wish to point out at the beginning

11 nobody gave instructions or orders to the prosecutor's office, and that

12 applies to this case too. I'm afraid you're misinterpreting this

13 document. The prosecutor's office is given a proposal to act in that way.

14 The criminal report contains a description of the event and the proposal

15 of the author of the criminal report to the prosecutor's office to

16 institute criminal proceedings. We have here two completely different

17 aspects of an event. It was customary in all cases to first investigate

18 whether there was any reason to file a criminal report against someone and

19 only then to actually file it, and it is normal to expect, and what

20 happened in practice was that in addition to a criminal report, attention

21 was drawn to the existence of evidence which leads to suspect that there

22 are grounds for prosecution. And once that suspicion is established, then

23 the prosecution is instigated on the basis of well-founded suspicions.

24 So the direct answer to your question would be that in this

25 document, I do not see anything out of the ordinary. The military unit

1 along its chain of command carries out internal checks in accordance with

2 the rules of service, and if there is a suspicion that someone has

3 committed a criminal offence and once that is established, it is forwarded

4 to the prosecutor. The law provided for the obligation of every citizen

5 and every institution to inform the prosecutor of any possible commission

6 of a criminal offence, and that is what happened here.

7 Q. Yes. That's -- that's your answer. Thank you very much on this

8 aspect.

9 Let me move on to a next point. You told us that you were

10 involved, I think, in a case, an investigating judgement, I don't recall

11 about, of an Egyptian citizen who is I think now a doctor in -- in Egypt.

12 Do you remember that, talking about that yesterday?

13 A. I remember. This event I was involved in, that is, in the

14 proceedings, I mentioned it only as an illustration of the various

15 difficulties we encountered, including difficulties in identifying people,

16 and it was part of my answer to a question from the Defence as to the

17 difficulties we had to grapple with.

18 As far as I can remember, this event occurred much later in

19 relation to the period covered by these proceedings.

20 MR. WAESPI: Mr. President, if we could briefly go into private

21 session for -- for a couple of minutes.

22 JUDGE ANTONETTI: [Interpretation] Mr. Registrar.

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21 [Open session]

22 THE REGISTRAR: [Interpretation] We are in open session,

23 Mr. President.

24 JUDGE ANTONETTI: [Interpretation] For the re-examination, the

25 Defence has the floor.

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

2 Re-examined by Ms. Residovic:

3 Q. [Interpretation] Good morning, Mr. Veseljak.

4 A. Good morning, Colleague Residovic.

5 Q. Yesterday my learned friend from the Prosecution asked you

6 several questions showing you records of on-site inspections that you may

7 have attended or one of your colleagues, judges, from the district

8 military court. Do you remember that?

9 A. Yes.

10 Q. In this connection, he also asked you a large number of questions

11 that you answered which was -- were intended to show that it was important

12 for the judge to know the name of the suspect, to establish certain facts,

13 to seize weapons, to collect the names of witnesses, and so on. Do you

14 remember that that was the gist of the questions put to you by the

15 Prosecutor?

16 A. Yes, I do.

17 Q. In connection with this whole set of questions put to you while

18 you were shown certain documents, my question to you is whether these were

19 relevant facts which the judge when he goes to the crime scene seeks to

20 establish.

21 A. When we are talking about an on-site investigation, we are never

22 establishing facts. We are just collecting what is to be found on site

23 and any possible information that one may gather on site. I would be

24 prone to say in the Croatian version an "Uvidjaj" is called an "Ocevid," a

25 different word is used meaning that one notes down what one sees with

1 one's eyes. But the judge carrying out the on-site inspection will seek

2 to collect as much information as he can which may be of use to him later

3 on.

4 Q. Answering a question from my learned friend - and I don't wish to

5 quote from the transcript - you said on a number of occasions -- you used

6 the phrase "if possible." Do you remember saying that?

7 A. Yes.

8 Q. Tell me, please: When you tell us "collecting all possible facts

9 which may be of importance for the case," is this limited by the

10 possibilities of the time and space and all other constraints that a judge

11 may have when he goes on site?

12 A. Of course. Every on-site investigation is limited by the

13 situation under which it is carried out. I can give you ten main

14 questions that need to be answered if we were to act in accordance with

15 theory. But every on-site investigation was limited by circumstances, and

16 that is why sometimes most detailed information was collected and at other

17 times only very rough information. And a third possibility would be when

18 you arrived and found absolutely nothing. Then you did not carry out an

19 on-site investigation; you just filed an official note saying that you

20 didn't find anything.

21 Q. Mr. Veseljak, when a judge goes on site, who determines whether

22 it is possible to carry out certain steps or not?

23 A. The judge.

24 Q. When the judge goes to the crime scene, who determines which

25 facts will be collected and in which way?

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1 A. Again, the judge.

2 Q. When the judge is at the scene, a military body, the military

3 police, or the civilian police or anyone else, can they take over this

4 role from the judge and determine what can be established and which facts

5 need to be collected?

6 A. No one speaks at an on-site investigation except the judge, so no

7 one can make any decision, a positive, a negative one, a wise or a stupid

8 one, except the investigating judge.

9 Q. In a number of on-site investigation reports shown to you, most

10 of which you attended in person, one can see that either an autopsy was

11 carried out or a description of the injuries suffered by a certain person.

12 Who decides what the pathologist will do in each particular case?

13 A. The investigating judge.

14 Q. In virtually all the documents shown to you, the name of the

15 doctor pathologist appears. Do you know his name?

16 A. Faruk Turkic.

17 Q. Tell me, Mr. Veseljak, in view of the fact that you were a judge

18 throughout the war and you carried out on-site investigations, how much

19 faith did you have in the description of injuries provided by Dr. Turkic

20 and his post-mortem reports?

21 A. Absolute confidence. Dr. Turkic due to circumstances was for

22 many years and the only pathologist in the cantonal hospital in Zenica.

23 He's a person with a great deal of experience and a man of exceptional

24 moral qualities. And my relationship goes back many years and I don't

25 know of a single case, and Mr. Turkic is not a forensic pathologist, and

1 in some cases when he is not authorised, we did engage forensic

2 specialists like Professor Zdenko Cihlas, who is head of the chair of

3 forensic medicine at the university to provide his report, but they never

4 clashed with the findings of Dr. Turkic.

5 Q. My learned friend as well as myself showed you a report on an

6 investigation at Stranjani, where members of a military police battalion

7 clashed with thieves. In answer to a question from my learned friend, you

8 said - and I'm paraphrasing - that this was not the cow that was at stake.

9 You explained that this was a checkpoint manned by members of the military

10 police. Who were those military policemen protecting on the road?

11 A. At this particular checkpoint, they were protecting the

12 inhabitants of the village of Stranjani and the hinterland, because this

13 is an area mostly inhabited by Croats. So the purpose of that checkpoint

14 was to protect the population there and all of us, I have to add, who in

15 one way or another were involved, either in handing out justice or

16 protecting people, had a very strong feeling of need to protect that

17 population.

18 I can illustrate this: That when I went to carry out the

19 investigation into that event, I asked a highly respectable man called

20 Mr. Stipan, as we all called him, a Franciscan priest, to come with me to

21 assist in dispelling the fear of those people and showing them that there

22 is a legal entity taking care of their security, and hence this particular

23 case is one that I certainly and definitely do not see as an event

24 prompted by a -- the killing of a cow. The intention was to protect the

25 people in their homes.

1 Q. Thank you. My learned friend showed you today several documents

2 linked to investigations into an event which occurred within the Operative

3 Group Lasva. And in that connection, I would like to ask you the

4 following: If a military unit, the military police, or the civilian

5 police learns of an event the indicia of which point to grounds to suspect

6 that there was a criminal offence, you explained that they themselves

7 collect certain evidence before addressing the competent prosecutor's

8 office. Is that what you were explaining in answer to a question from the

9 Prosecution?

10 A. Yes. Because otherwise, if the prosecutor received a piece of

11 paper saying, "I'm reporting such-and-such a person," then every normal

12 reasonable prosecutor would ask him, "How would I know that that person is

13 suspect?" Also, every citizen was duty-bound to inform the prosecutor

14 that he has certain information that a crime had been committed. Such an

15 individual is not expected to produce any documents in favour of such an

16 assertion but all other bodies are.

17 Q. Exhibit P777 and P779 and P774, you can have another look at

18 them, please. They related to the death of certain soldiers in a military

19 unit during a combat operation. Is that a fair description of the

20 consideration given to this event by the army itself?

21 A. That is my understanding, though I read it through in haste.

22 There was a military operation. Certain people were killed. And then

23 within the command structure, verifications were made as to whether any

24 military rules were violated. A conclusion was reached that there were.

25 And then there was, I think, a report against the armed forces. Under

1 number 13 I think it is. I think I read it correctly, that -- that the

2 criminal act of failing to secure a military unit. It belongs to the

3 chapter of offences against the armed forces.

4 Q. My question to you, Mr. Veseljak, is: If you look at these

5 records and reports and a criminal report against an unknown person, do

6 these documents tell you the way in which the army investigated any acts

7 of negligence on the part of their own soldiers or do you believe that

8 this was an inappropriate way of investigating and disciplining one's own

9 troops?

10 A. Every incident - and there were many - implied carrying out this

11 kind of procedure, because the competent commander or command might

12 discover that there were certain elements of disciplinary offences and a

13 commander could have sentenced the person to 30 days of military detention

14 or not allowing him any free time or maybe someone may have committed a

15 misdemeanour and be reported to a magistrate court. But somebody here

16 came to the conclusion that there were grounds to suspect that a criminal

17 offence had been committed and this was reported to the district military

18 prosecutor. Theoretically the following stage would be for the prosecutor

19 to consider the matter, then to address it to the investigating judge in

20 Travnik, to carry out an investigation, and then the procedure continues

21 according to the rules.

22 Q. Mr. Veseljak, we were at war, and there's -- it is quite obvious

23 that people at war get killed. And if a military commander or the

24 military police would find that somebody was killed in combat and if they

25 found that there were no grounds to suspect anything else, would it be

1 customary for the army to complete the investigation without any other

2 judicial bodies being informed, or did it have to inform them?

3 A. Normal casualties in combat operations were dealt with within the

4 military structure, without informing any judicial body. However,

5 whenever there was any grounds to suspect, well-founded or unfounded

6 grounds - there were many such cases - even if this happened on the front,

7 then the duty judge would be informed and he would carry out the

8 investigation.

9 So the answer is if somebody was killed in combat, the judicial

10 organs were not informed about that.

11 Q. If the military body, the police or someone else, felt that

12 immediately after the event a judicial body had to be informed, first the

13 duty judge and then the prosecutor, and if the duty judge goes on site,

14 who after that determines the further course of proceedings?

15 A. The prosecutor.

16 Q. And at the investigation itself?

17 A. The investigating judge.

18 Q. Can the military body that knows the judicial authorities have

19 taken over the case, can they independently carry out any acts on their

20 own contrary to instructions from the court?

21 A. If I understand you well, let me say the following: No one can

22 prohibit the commander from continuing to look into people's behaviour,

23 conduct, from the standpoint of military discipline. However, regarding

24 influence over criminal proceedings, that has absolutely no purpose.

25 There are no parallel investigations or anything else that can affect the

1 criminal proceedings. The moment the investigating judge is on site, the

2 case is in the hands of the judiciary.

3 Q. One more question, Mr. Veseljak: You were shown a report dated

4 the 19th of April, when Zenica was shelled. In a part of the instructions

5 you gave, there was the instruction that the civil defence should clean up

6 the area after the on-site investigation had been completed. Do you

7 remember that?

8 A. Yes.

9 Q. Tell me, does the civil defence have its own legally prescribed

10 competencies, or do they have to wait for the investigating judge?

11 A. I have taken a deep breath because whenever the 19th is

12 mentioned, those horrific pictures come back. The civil defence acts in

13 accordance with the law on civil defence. It has its own organisational

14 structure and its chain of command and links between the court and the

15 civil defence don't really exist. However, in this particular case, the

16 highly -- the very limited resources of the city, including resources that

17 could be used to wash the pavement, such as a water tank, were

18 subordinated to the civil defence.

19 And this terrible event took place in the centre of town in an

20 area five times the size of this courtroom, where 15 people were killed

21 and 49 people seriously injured. It is the spot where the largest

22 department store is, the central mosque, and an old part of town full of

23 cafes which were full of people. So this was a meeting place. This is

24 the only place that was lit up during the war at night. And naturally,

25 after this terrible tragedy, I thought it absolutely essential to ask the

1 civil defence after the investigation to clean up this part of town

2 because that was the only place where the citizens gathered and we

3 couldn't leave it like that, and that is why I gave such orders. But the

4 civil defence has a completely different function. It acts according to

5 its own rules and duties.

6 Q. Mr. Veseljak, do you know Mesic Mirsad? As you were an

7 inhabitant of Zenica, what was he during the war?

8 A. I do know him, but I must say as a layman he was head of the

9 civil defence.

10 JUDGE ANTONETTI: [Interpretation] Wait a moment, please. There

11 seems to be an objection from the Prosecution.

12 MR. WAESPI: Yes, I don't -- I sort of gather what -- where the

13 Defence is going right now, but I just ask in cross-examination one

14 factual question to the witness, whether he ordered the civil protection

15 people to clean it. And from this now the Defence talks about

16 jurisdiction of the Municipal Defence Staff. It goes into other people

17 mentioning. I think that goes way beyond the scope of redirect.

18 JUDGE ANTONETTI: [Interpretation] Ask your question slowly, going

19 towards your objective, not through a single question which can be

20 considered to be leading and which can go beyond the scope of the

21 cross-examination.

22 So according to my understanding, you want to ask him about the

23 civil defence or protection. Is that right? Is civil defence the object

24 of your interest?

25 MS. RESIDOVIC: [Interpretation] Yes, Mr. President. The

1 Prosecutor, because he found it important to ask whether it is the court

2 that ordered the civil defence to clean up this area in Zenica -- I'm not

3 going into the way in which he will use his -- this answer in his

4 arguments. I asked the witness the same question, and he explained that

5 it was due to circumstances that he gave such an order but that the civil

6 defence does its own work. And I just asked him whether he knows

7 Mr. Mesic, a witness who testified in this court. He said he knew him and

8 knows what his duties were.

9 I have only one more question to this witness.

10 JUDGE ANTONETTI: [Interpretation] Go ahead.

11 MS. RESIDOVIC: [Interpretation]

12 Q. If Witness Mesic under oath would say in this court and said in

13 this court that it is the legal obligation and duty of the civil defence

14 to sanitise the area, that is, in areas of combat to collect bodies, to

15 remove dead animals and clean up in other ways, do you consider that that

16 witness is fully authorised to explain the competencies of the civil

17 defence?

18 JUDGE ANTONETTI: [Interpretation] Before answering, the Defence

19 wants to hear from the witness whether it is part of the duty of civil

20 defence to clean up a combat area if there were casualties and dead people

21 or dead animals. So it's a legal question. Is it up to the civil defence

22 irrespective of any intervention by the judge to clean up the area? And

23 she is saying that there is a witness who said that. And can the judge

24 who is in front of us confirm that legally that is the obligation of the

25 civil defence? So that is the question put to the witness.

1 What is the objection of the Prosecution?

2 MR. WAESPI: Mr. President, again, we are in redirect. I asked a

3 very simple question to the judge in connection with Zenica, the cleaning

4 up. He gave a very good answer in redirect. Now, to go and ask him about

5 another witness who testified here and who gave his opinion - and it may

6 be right, it may be wrong; I don't know - is inappropriate at this point

7 in redirect. And it's -- and it's also a leading question, at this point,

8 by the way, to ask him or confirm or not what somebody else said. It's

9 inappropriate at this point, Mr. President.

10 JUDGE ANTONETTI: [Interpretation] I shall try and bypass the

11 difficulty asking the question myself, as it is a question of law, of

12 interest to us Judges.

13 To the best of your knowledge, did the civil defence have the

14 legal obligation to clean up a combat area if in that area there were

15 people killed or animals killed, irrespective of any intervention by a

16 judge?

17 THE WITNESS: [Interpretation] They had such a legal obligation.

18 And as far as I unfortunately know, that is what actually -- they actually

19 did, as I had the misfortune of living through that war.

20 MS. RESIDOVIC: [Interpretation] Thank you. I have no more

21 questions.

22 JUDGE ANTONETTI: [Interpretation] The other Defence team?

23 MR. IBRISIMOVIC: [Interpretation] No additional questions. Thank

24 you, Mr. President.

25 JUDGE ANTONETTI: [Interpretation] During the ten minutes before

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1 the break, I would like to ask you a few purely technical questions of a

2 judicial nature but to inform the Judges, because I have to tell you at

3 this point in time, regarding the rights of investigating judges or judges

4 generally, there's a certain ambiguity in my mind.

5 Questioned by the Court:

6 JUDGE ANTONETTI: [Interpretation] I would like to know -- I

7 thought I had gathered on the basis of what you said that in this military

8 court there's a judge that is on duty, and you said there were eight of

9 you and you took turns. So you were on duty every eight weeks. Are you

10 confirming that there was a duty judge over a certain period of time to

11 deal with any problems that he may be informed of by the police, be it the

12 civilian or the military police or anyone else?

13 A. Every week one of us was appointed as the duty judge by the

14 Presiding Judge. This was done in a decision. And copies of the decision

15 were forwarded and the civilian police and military police were informed

16 of the appointment.

17 JUDGE ANTONETTI: [Interpretation] Very well. Everyone can follow

18 that. If there is an event -- let's imagine the following scenario:

19 Somewhere a soldier who was killed is discovered. We don't know anything

20 about the circumstances. There is a dead soldier and there are gunshot

21 wounds. Does the civilian police or the military police then phone the

22 judge and the person found in a public space is not in the battlefield.

23 It's somewhere else. What happens in such a case?

24 A. Yes. At that point in time, the police first secure the site and

25 inform the duty investigative judge. The duty investigative judge then --

1 JUDGE ANTONETTI: [Interpretation] Very well. The French

2 translation now said the "investigative judge." Let's be very clear. The

3 judge, the duty judge, is it a judge or an investigative judge? Because

4 in the documents that you signed, it says "judge"; however, there's

5 another document in which it says "investigative judge." It's one of your

6 colleagues. So is it an investigative judge or a judge that you are

7 referring to? Because I believe that this is what is going to cause

8 confusion. The duty judge, is it a judge or an investigative judge?

9 A. Well, allow me to provide you a somewhat lengthier explanation.

10 Given the annual schedule that we had and in accordance with the rules for

11 the procedure of the court, we were signed certain duties by the presiding

12 judge. So I was assigned the duty as the presiding judge in

13 first-instance cases. My colleague Ahmetovic was given the annual

14 assignment of an investigative judge. However, when I was on duty -- when

15 I'm on duty, I act as an investigative judge with authority that the

16 investigative judge has according to the law. So I can order autopsies to

17 be performed, exhumations to be performed, because these were actions for

18 which only the investigative judge was responsible.

19 So to answer your question, Mr. President, when I was on duty, I

20 then acted as an investigative judge, as far as compiling documents are

21 concerned.

22 If you have a look at the heading at the introduction of my

23 document, you will see that it always says that I worked as the duty

24 investigative judge and that I was informed as the duty investigative

25 judge of the cantonal court. But in fact I only signed the documents

1 as "judge."

2 JUDGE ANTONETTI: [Interpretation] Very well. So the judge would

3 go to the site where the body was found. The site was secured by the

4 civilian or by the military police. You would then take a series of

5 steps. That is what you said. And this is what could be seen in the

6 document. You'd make a record, describe the body, the wounds that could

7 be seen, the transport to the hospital, to the morgue, the autopsy,

8 et cetera, et cetera. All this is referred to. And then you compile a

9 report.

10 This report, as far as I have understood you, is to be forwarded

11 to the prosecutor.

12 A. Yes. And I would usually also send a copy to the police

13 assisting the on-site investigation because they also had a file that had

14 to be complete and had to contain a copy of my record.

15 JUDGE ANTONETTI: [Interpretation] Very well. So you would draft

16 a report. But when reading all the documents of the Defence and the

17 Prosecution, we can see that this is a very descriptive report. There

18 aren't many personal assessments of the judge with regard to whether a

19 crime was committed or not. But if a crime was committed, the prosecutor

20 would have the report. And if I have understood you correctly, after this

21 stage, if the prosecutor wanted to proceed and continue with the

22 investigation, he had to make an official request and had to forward it to

23 the investigative judge in order to initiate an investigation and to

24 accuse someone who was suspected of being the perpetrator of the crime.

25 Is this how things would actually take place?

1 A. Yes, exactly. Yes.

2 JUDGE ANTONETTI: [Interpretation] Then the investigative judge,

3 who received the request, has the authority to interview witnesses, to

4 interview the suspect or the accused, to order expert reports to be

5 drafted, and to order any other useful investigations to be conducted.

6 Can you confirm that this is actually how you would proceed?

7 A. Yes. Apart from the fact that the investigative judge would not

8 express his own opinion. This was not the case according to our

9 procedure. He could order expert reports to be drafted. He could

10 interview anyone. But he would not express his opinion.

11 JUDGE ANTONETTI: [Interpretation] When the investigative judge

12 who received the request completed his work, he would then send his case

13 file to the prosecutor. And having read the judgements, I believe that

14 then the prosecutor drafts an indictment which is referred to the

15 tribunal, to the court. Is that how things proceeded?

16 A. If he was satisfied with the investigation conducted, if he

17 believed that it wasn't necessary to continue with the investigation or

18 widen its scope, then he would draft this indictment. Otherwise, the case

19 would be annulled.

20 JUDGE ANTONETTI: [Interpretation] Very well. Were there

21 situations in which the investigative judge would go to the site, make a

22 record, send it to the prosecutor, and then the prosecutor would do

23 nothing? He would just put the case file on the shelf. He wouldn't send

24 a request to the investigative judge and he would shelve the case? Did

25 such things happen?

1 A. Yes. That's one decision that the prosecutor could take. When

2 you say to place the case file in the archives, it doesn't mean he

3 wouldn't do anything. He would examine the case, decide that there were

4 no grounds for further [Realtime transcript read in error "on if"]

5 proceedings. He would compile an official note. That's how it was done.

6 He would file a note saying that there are no grounds to continue [as

7 interpreted] with the proceedings, with the case, and that would be that.

8 JUDGE ANTONETTI: [Interpretation] Very well. Yesterday you said

9 on a number of occasions in response to Defence questions that the

10 prosecutor always remained responsible, always had competencies. We can

11 see how important the role of the prosecutor is. It is the prosecutor who

12 decides about further action to be taken in the light of the record

13 compiled by the duty judge. If the prosecutor believes that it is not

14 necessary to continue with the investigation by forwarding a request to

15 the investigative judge, in such a case he shelves the case. So he has

16 such absolute power. The judge has nothing to say in the matter.

17 A. No, he has nothing to say, nor does the court.

18 JUDGE ANTONETTI: [Interpretation] Yes. Because since the court

19 wasn't seized of the affair, there's nothing for the court to say.

20 Very well. It is now quarter to 11.00. We will now have a break

21 and we will resume at ten past 11.00.

22 --- Recess taken at 10.44 a.m.

23 --- On resuming at 11.12 a.m.

24 JUDGE ANTONETTI: [Interpretation] We will now resume.

25 Yes, Defence counsel.

1 MS. RESIDOVIC: [Interpretation] Mr. President, just for the sake

2 of the transcript, on page 40, line 21, it says "on if proceedings." I

3 don't know what the "if" means, but it doesn't make the witness's answer

4 understandable. Line 22 it says he would file a note to continue;

5 whereas, the witness said that -- whereas, the witness said "not to

6 continue," and the witness did not say "to continue." Could this just be

7 corrected, please.

8 JUDGE ANTONETTI: [Interpretation] Thank you.

9 I have a few more technical questions for you. When the

10 prosecutor decides not to send a request to the investigative judge

11 because he believes that there are not -- there's not sufficient evidence

12 to accuse someone of having committed an offence, in such a case can the

13 victims contest the decision not to proceed and forward a request either

14 to the court or to the prosecutor, a request for the decision to be

15 changed, or is no one aware of this decision and the victim is in fact not

16 informed? Could you provide us with some information about this.

17 A. Yes. Victims cannot complain, cannot contest the prosecutor's

18 decision not to continue with the proceedings, whether -- with the

19 investigations. But when the prosecutor decides not to continue with

20 proceedings, it is his duty to inform the victims. And after -- within

21 eight days from having received this decision, they can continue with the

22 proceedings themselves. In such a case, the victims take on the role of

23 the prosecutor and they have all the rights that the prosecutor has. They

24 can then request further investigations and other measures in accordance

25 with the law. They can't contest the decision, but they can take on the

1 role of the prosecutor and continue with the case.

2 JUDGE ANTONETTI: [Interpretation] Very well. So you have told us

3 about two matters: Firstly, the prosecutor has the duty to inform within

4 eight days of his decision the victims, inform them of the fact that he

5 has shelved the case. And in such a case, the victims, according to the

6 law and the procedure in force, may take action and request an

7 investigation. I assume that this is done through a lawyer. How does

8 this actually take place?

9 A. Yes, technically speaking, it's done through a lawyer, but it's

10 not necessary for this to be done through a lawyer.

11 I'd just like to correct something. It's not the prosecutor's

12 duty to inform the injured party within eight days. He must inform the

13 victims immediately and then the victim has eight days to decide whether

14 or not to continue with the affair. The victim does this by sending a

15 one-sentence letter to the prosecutor and saying, "In accordance with your

16 report," such-and-such a number, such-and-such a date, "I hereby inform

17 you that I wish to continue with the criminal proceedings," and as of that

18 date he takes on the role of the prosecutor. According to the law, the

19 role of such a party is called "the injured party as a prosecutor."

20 JUDGE ANTONETTI: [Interpretation] This procedure also unfolds

21 before the military court or it's also applicable in military courts.

22 A. Yes. Yes. There is absolutely no difference. The procedure

23 before a military and civilian court is exactly the same.

24 JUDGE ANTONETTI: [Interpretation] As far as you know, as far as

25 you can remember, do you remember any cases in which the victims

1 themselves requested that investigations be conducted although the

2 prosecutor had shelved the case? Were there any such cases?

3 A. Yes, there were such cases. Now that you have asked me this

4 question, I can remember one case, a case of murder. The prosecutor

5 established that it was a matter of legitimate defence and that there were

6 no grounds to continue with proceedings. The brother of the victim did

7 not agree with the prosecutor. He filed a request for an investigation,

8 and in fact the accused, Senad Agatovic, who died -- was killed in a

9 traffic accident, later was detained on the basis of this request.

10 Afterwards, I -- I was the presiding judge, and the chamber finally

11 established that it was a matter of legitimate defence. The person was

12 released. That was one such case. There were a number of such cases, not

13 that many, but there were a number of such cases and there are still cases

14 of that kind that are being dealt with. And I, as a lawyer, am now

15 defending someone in one such case.

16 JUDGE ANTONETTI: [Interpretation] Thank you for this technical

17 information.

18 JUDGE SWART: Good morning, witness. I would like to ask you a

19 few questions about a matter you discussed yesterday with us, and that is

20 the matter of the abandoned houses and thefts in abandoned houses. But

21 before I come to my questions, I have still other questions on your time

22 as a judge. I understood yesterday that you became a judge in October

23 1992, but I don't recall that you have told us when you stopped being a

24 judge in the military court. Could you inform me about the end of your

25 tenure as a military judge.

1 A. I started working as a judge on the 12th of October, 1992, and I

2 was a judge in the military court while military courts were in existence.

3 And if I remember this correctly, it was up until 1996. I think it was up

4 until 1996. Then all of us who were judges in the military court, in

5 accordance with the law, became lords of the high court in Zenica, and

6 after the judiciary had been reformed, we competed to become judges of the

7 cantonal court in the 1990s, and that's why I completed my career as a

8 judge in January 2004.

9 JUDGE SWART: Thank you very much. You also told us this morning

10 that you have been a duty judge, apart from being a judge at -- a

11 presiding judge at trials or other judge during trials. Have you also

12 been a -- an investigating judge proper in this period of time, these four

13 years? And if so, when?

14 A. Yes. I was an investigative judge too, since there were a lot of

15 cases and they couldn't be dealt with by one investigative judge, as a

16 result the presiding judge would also appoint someone else if this was

17 possible, and that was my case. But given the total number of cases that

18 I dealt with, I was involved in about 200 investigative cases. That's 200

19 out of -- whereas, in the case of other cases there was 750.

20 JUDGE SWART: [Previous translation continues] ... judge?

21 A. Throughout that period, well, sporadically, temporarily. And

22 when I acted as the duty judge and a request had been filed to conduct

23 investigations by the prosecutor, then I would sometimes continue to work

24 on such cases until the investigation was completed.

25 JUDGE SWART: Thank you.

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1 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Bourgon.

2 MR. BOURGON: [Interpretation] Thank you, Mr. President. Judge

3 Swart's question has not been included in the transcript. It was a

4 question of interpretation, I think. I don't know if we could correct

5 this or whether it could be done later.

6 JUDGE ANTONETTI: Yes, it's line 14 on page 45.

7 JUDGE SWART: [Previous translation continues] ... have you been

8 an investigating judge?

9 I'm afraid I made the same mistake now. So I'll try again. My

10 question was: Have you been an investigating judge also? And if so,

11 when?

12 Well, let's continue. Yesterday, witness, you told us about

13 abandoned houses and thefts from abandoned houses, and I made a note of

14 the transcript yesterday of page 59, and I noted the following, and I

15 quote you: "With regard to thefts from these houses, you said the

16 following: "I was thinking whether I could recognise certain intention to

17 perpetrate war crimes or was it just the case of somebody needing a cow,

18 and the easiest thing for him -- for this perpetrator to do was to go to

19 an abandoned house and steal a cow from such an abandoned house." This

20 you said in response to a question of whether such a theft from an

21 abandoned house could amount to a war crime.

22 Now, I've been looking at your statement, and I gather - but

23 please correct me if I'm wrong - that for you to make the distinction is

24 primarily a matter of motive, what is the motive of the perpetrator --

25 depending on the motive of the perpetrator, something can be a war crime

1 or not be a war crime. Is that a correct impression of what you said? Is

2 that a correct interpretation of what you said?

3 A. I regret that you haven't understood me correctly. I wasn't

4 mentioning motives, but as a lawyer I was speaking about the relation of

5 the perpetrator to the consequences of the act. And according to our

6 terminology, this relates to intentions, to intend to -- so the awareness

7 of the perpetrator that by taking certain action this action would have

8 certain legal consequences. And what I wanted to say was that in such

9 cases we did not recognise the intent of the perpetrator to commit a crime

10 but, rather, the intent of the perpetrator to gain property. We took

11 advantage of the fact that property in certain areas had been abandoned

12 and this enabled the perpetrator to obtain quite easily this property. We

13 neglected all other issues of theoretical and legal kind, issues that have

14 to do with civilian law. For example, whether property that's abandoned

15 can be taken. Is this a matter of taking property of -- in certain

16 circumstances? Can this act be considered to be a crime? But since the

17 civilian authorities established orders in order to protect civilian

18 property and it was stated that all abandoned property would be under the

19 control of the state organs, as a result we drew the conclusion that this

20 property hadn't been abandoned in terms of civilian law, and we drew our

21 legal decisions on that basis. We determined that a crime of stealing

22 other people's property had been committed and we would put such

23 perpetrators on trial as a result.

24 JUDGE SWART: Perhaps I should not have used the word "motive,"

25 because that may have a very specific meaning, but I should perhaps have

1 used the word "intent."

2 But then intent is the distinctive criterion for you, or is it

3 not?

4 A. Yes. Yes.

5 With your leave, the system of describing a crime in the law

6 which is applicable and on the whole is continental is also -- this system

7 is based on the idea of intent, so we say that certain acts can only be

8 committed if there is intent. And there's entire intent or acceptance of

9 the consequences. Certain acts aren't punishable if this intent isn't

10 established. You can't accidentally commit an offence. This was a very

11 important criteria, and we spent a lot of time on trying to establish

12 whether intent was present, because I do agree that any act against

13 property, physical integrity, against other sexes, against personal

14 dignity, et cetera, in the course of wartime could also be described as a

15 war crime against the civilian population.

16 But our position was the following: We discussed this matter, and

17 if there was an isolated event - and we're talking about a collection of

18 isolated events - then the accumulation of such events does not allow one

19 to describe these events as a war crime committed against the civilian

20 population.

21 JUDGE ANTONETTI: [Interpretation] We're trying to see what you

22 are trying to tell us because yesterday you said that it was the court's

23 responsibility to provide a legal description of the events.

24 Should one draw the following conclusion: That if property was

25 misappropriated and the civilian authorities said that such property

1 should be protected, in your opinion was this worse for the perpetrator of

2 the crime or was it better? What would the consequence be? Stealing

3 something from private property protected by the civilian authorities, is

4 such an act more serious than if something had been stolen and no

5 decisions had been taken by the civilian authorities? Do you understand

6 the question that I am putting to you?

7 A. My answer would be as follows: A crime of aggravated theft in a

8 qualified form which reads "appropriation of abandoned property or

9 elements of property" is the legal description of a criminal offence that

10 we did inherit from the former SFRY. So the amendments made to the

11 Criminal Code changed the law and provided a new criminal offence with a

12 much graver penalty than envisaged for qualified forms in the past, and as

13 soon as we find that abandoned property had been appropriated, this was

14 considered a new objective form for incrimination, and the perpetrator was

15 tried under that stricter provision of the law envisaging a higher

16 penalty.

17 JUDGE ANTONETTI: [Interpretation] And this is the result of the

18 amendment to the law made in this area. You explained that the former

19 offence in ex-Yugoslavia was modified and that your country envisaged an

20 offence which is sanctioned much more strictly than in the former system.

21 A. Yes. In that period of time, all the penalties because of a

22 state of war, this was provision of law, of the Rule 226 of the Criminal

23 Code, and it was said the penalty is one to five years. If the act is

24 committed in a condition of immediate threat of war or a state of war, the

25 maximum penalty is ten years. But the bodies responsible for -- to

1 legislate introduced new offences, criminal offences, new one, original

2 ones, for which the penalties were much higher than envisaged for the

3 basic offences. So we had the criminal offence of murder on an ethnic

4 basis or rape on an ethnic basis.

5 Within the framework of property offences, we had this criminal

6 offence of appropriation of abandoned property.

7 You know that the parliament was not functioning during the war.

8 It could not sit. The Presidency of the State had the constitutional

9 right to pass decrees with the force of law whereby laws were amended, and

10 these are the decrees I'm referring to. And as soon as the conditions set

11 in for the parliament to meet, laws were passed to transfer these decrees

12 into law. Some were annulled once the state of war was overcome, so there

13 was no need for them.

14 JUDGE SWART: So if we read in Article 148 of the -- what I hope

15 is the Criminal Code of Bosnia at the time saying that aggravated theft is

16 punishable by imprisonment for a term of more than one year but not

17 exceeding ten years, then that is not the whole picture? There's also

18 Article 226 of the same Code, saying that in time of war, in time of

19 imminent danger, the penalties are different. Could you confirm that?

20 A. All I can confirm is that you are reading the basic text of the

21 law. And if it says in the law that punishment must be at least one year,

22 then the general maximum is 15 years and not 10. And this Article 148 in

23 paragraph 3 was amended by decree and certain corrections were made.

24 Furthermore, there's a decree on amendments to the Criminal Code

25 where all the penalties prescribed by the original provision of

1 Article 184 have been increased. So the minimum penalty was three years

2 of imprisonment, and in some cases even the possibility of a death penalty

3 being passed down was envisaged. I think in October or November 1993

4 quite a lengthy decree was passed with significant corrections being made,

5 especially with respect to the penalties prescribed.

6 JUDGE SWART: I accept your explanation, witness. Maybe we don't

7 have the full picture of the legislation in the -- in Bosnia at the time.

8 That is quite possible. But to come back on the issue of the distinction

9 between a war crime and a common theft, so to speak, you said a few

10 minutes ago if it is an isolated offence or a series of isolated offences,

11 then this would not be a war crime.

12 My question to you is the following: Could you define in a more

13 positive way what constitutes a war crime for you? What is the threshold

14 for a theft or a series of thefts becoming a war crime?

15 A. I think we have to cross the quantitative threshold and one also

16 has to cross the threshold of intent. If a whole area has been abandoned,

17 a whole region, and if in that region cattle is roaming freely, and if you

18 have a situation in which entire villages have been destroyed and there

19 are no roofs on the houses and, on the other hand, you see a neighbouring

20 village has been abandoned with roofs on their houses, what would happen

21 in practice would be that people would go to the abandoned house and take

22 off the tiles to cover their own roofs with. And this was prosecuted and

23 tried as a crime. But in our understanding, it did not acquire the

24 characteristics of a war crime because the perpetrator never had it in his

25 mind to commit a war crime. He knew he was taking somebody else's

1 property. He had motives which from his standpoint were understandable,

2 but according to the legal system we were bound by could only be

3 considered as mitigating circumstances when handing down sentence.

4 So there were a number of circumstances which led us to believe

5 that we were not confronted with organised war crimes, that there is no

6 link between individual perpetrators of this specific criminal offence

7 which could describe their joint efforts as an organised war crime, and we

8 felt that under the circumstances in which we were living it was quite

9 appropriate to sanction such behaviour as a general crime which increased

10 under wartime conditions and which upon the cessation of the war calmed

11 down and was reduced to the customary peacetime average.

12 Furthermore, the way in which those criminal offences were

13 committed, though before the war of course you didn't have abandoned

14 property -- but in the way they were committed, the quantity of criminal

15 elements, the degree of responsibility, did not differ in any way from

16 similar criminal offences committed before the war and even today.

17 In Bosnia-Herzegovina today, we have an increase of sexual

18 offences in relation to wartime. There's an increase of criminal offences

19 in unauthorised production and trafficking of drugs. So we do have a

20 considerable increase of property crime.

21 JUDGE SWART: Would you then give me an example of what would

22 constitute theft in the form of a war crime?

23 A. I would consider theft to represent a war crime -- let me first

24 go back to the beginning.

25 It is very hard to imagine theft as a war crime. You go and steal

1 somebody's property and to describe that as "war crime," I can hardly

2 imagine it. But I can imagine the following situation being a war crime.

3 For instance, a group of people who by definition would belong to one

4 ethnic group go to a settlement inhabited by members of another ethnic

5 group with the intention of seizing their property because they belong to

6 another ethnic group with the use of weapons, mistreatment, et cetera.

7 That, in my view, would have the characteristics of a war crime. But I

8 must say that the area in which I lived, I never came across any such

9 event.

10 JUDGE SWART: To pursue your -- your answer, would the fact that

11 a group of persons in an organised way took property from abandoned houses

12 bring this event in -- in the sphere, in the ambit of war crimes?

13 A. I have to try and adjust to your own way of thought. I don't

14 quite understand what you mean when you say "an organised group working in

15 an organised manner." If you are referring to the group that I mentioned

16 in my previous answer, then we could agree that this was a war crime.

17 JUDGE SWART: Let's be specific, then. Let's suppose there is a

18 region abandoned by its inhabitants, some villagers, and let's suppose

19 there's a group of 20 people who -- who work together in getting the --

20 the furniture, other things of value in these houses and transport them to

21 elsewhere. So the act in cooperation with this other in a systematic way.

22 My question is: When would this constitute a war crime? When not? In

23 your opinion. I'm interested in your opinion.

24 A. I think it is very hard to set the line, the threshold. I think

25 we would have to go further. If this were to be a group, an organised

1 group doing what you just said, if they were doing it systematically, if

2 they were systematically collecting everything from a particular village,

3 then that would most probably be a war crime.

4 JUDGE SWART: Thank you. The -- the Criminal Code, Chapter 16 of

5 the former Yugoslavia code on war crimes has an Article 142, and it speaks

6 about stealing on a large scale of property in my English translation. Is

7 that also an element for you, the large-scale nature of these -- these

8 events, of these thefts? Is that a -- something you would take into

9 account also yourself?

10 A. I think in your previous question that is precisely what we were

11 discussing. You said that an organised group of 20 men observed in a

12 region to collect all valuables, furniture, et cetera. So that's the kind

13 of criteria we're talking about.

14 JUDGE SWART: Would it also matter to you -- I'm exploring

15 your -- your thoughts and trying to get a clear view of the practice in

16 1993. Would it also matter in your appreciation of the events whether

17 this large-scale thing happened immediately after the -- the village was

18 abandoned or, let's say, 10 or 20 days after? Is that a relevant

19 distinction for you?

20 A. I have to go back for a moment to what I was saying about

21 procedure. A court trying a case is limited by the factual contents in

22 the indictment provided by the prosecutor. In answering one of the

23 questions, I said that the court was bound by facts but not also by the

24 proposed legal qualification of the act. Therefore, if the court found

25 that the acts contained in the indictment did not occur, he could release

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1 the accused and he could not charge him with some other criminal offence.

2 That is prohibition of a reform of the charge which was applied by us in

3 this way. So if you're asking me as a matter of principle if I had before

4 me these facts that you have referred to, then I would certainly judge

5 differently each situation; that is, my judgement would be different if

6 somebody appropriated and looted a village while resorting to force, then

7 this would be an act which could be qualified as a war crime. But as your

8 question ended with concrete reference to the practice in 1993 and after

9 that, I have to tell you that the court and courts I worked in, with the

10 exception of a couple of cases, did not receive indictments for war crimes

11 in the legal or factual sense, so they couldn't judge them as such.

12 During the war, I did preside over a trial chamber that passed

13 down sentence of death penalty in one case, but there were no charges

14 factually which would allow the court to recognise those offences as war

15 crimes.

16 JUDGE SWART: Well, you have already anticipated some of my next

17 questions, and this is what I wanted to discuss with you too, about a

18 situation. You have been a trial judge, you told us, and you have also

19 been a -- an investigating judge. Well, let's first take the situation of

20 the investigating judge.

21 I come back to what you said yesterday, and a few minutes ago you

22 said the same thing, I suppose. You said yesterday the starting point for

23 determining the nature of an offence are the facts as described by the

24 police or by the public prosecutor. And you also said the following: You

25 could not conclude the possibility of a war crime from these descriptions.

1 And you said something similar a few seconds ago, I believe.

2 Now, you have been an investigating judge too, and you have, I

3 suppose, had cases from the prosecutor in which he invited you to

4 investigate a theft from abandoned houses. Have you had such cases also

5 in your experience?

6 A. Yes, I did have such cases.

7 JUDGE SWART: Were there in these cases that you got from the

8 prosecutor to investigate as an investigating judge cases in which you --

9 you had a feeling this might amount to something more than a common theft,

10 or did you never see such cases?

11 A. I personally did not have such a case, but I have to say on the

12 assumption that I did, I am bound in my investigations as an investigating

13 judge by the facts shown me by the prosecutor in the request for

14 investigation. I investigate what he says in the disposition of his

15 request. He can give a reasonable explanation that someone was raped and

16 say in his proposal of an offence that it is a parking offence. I am, of

17 course, caricaturing things. But by the way the act took place is what

18 limits me in my investigations. I investigate only the facts that are

19 forwarded to the investigating judge by the prosecutor.

20 JUDGE SWART: So to pursue your example further, if the

21 prosecutor would ask you to investigate a parking offence and in the

22 course of your investigation you become aware that a rape has been

23 committed, you must ignore the rape then?

24 A. That means that I must complete the investigation into the

25 circumstances requested by the prosecutor, and I would give him all the

1 documents that I have collected in my investigation which he misqualified

2 as a parking offence. Then he can file a request for an extension of the

3 investigation or for an investigation to go into another direction.

4 I am afraid that there may be some misunderstanding. My

5 prosecutor described a rape and I am investigating the rape, but he

6 misqualified it, calling it a parking offence. What he receives in the

7 form of investigation documents, new information, is for the prosecutor

8 for a broader proceeding, but the investigating judge cannot extend the

9 investigation beyond the facts referred to by the prosecutor in his

10 request for an investigation. Even the court in passing judgement cannot

11 overstep the limit and find someone guilty of a more serious crime if that

12 entailed that the description of the crime has to be different from the

13 one contained in the indictment.

14 JUDGE SWART: I understand that as a trial judge you are bound by

15 the indictments and you cannot convict a person for a more serious offence

16 than the offence with which the accused has been charged with. That is a

17 basic principle of criminal procedure in many countries, not only in

18 Bosnia but also in many European countries, for instance. But I am asking

19 you about your position as a investigating judge.

20 You gave an example of a rape and a traffic offence, but I want

21 to go back to the -- the theft of property from abandoned houses. What a

22 war crime and a common crime have in common in this situation is that it

23 is both -- both are offences consisting of taking someone's property

24 without his consent.

25 So my question is: If you are at the request of the prosecutor

1 investigating something that may at any rate be qualified a theft, what is

2 your liberty as an investigating judge to enquire into all the relevant

3 circumstances which would enable the prosecutor to qualify this theft as a

4 war crime or as a common crime? That is really my question.

5 A. Your Honour, that is the whole point over which we don't

6 understand one another. In the legal system that we worked within, an

7 investigation and as a result the role of the investigating judge can be

8 reduced to the following. It says: "I propose an investigation

9 against XY because of well-founded grounds to suspect that on the 1st of

10 September, 1993 at such-and-such an hour, at such-and-such a place he went

11 to an abandoned house of an unknown citizen, a Croat, and took from the

12 house a window and took that window to such-and-such a place and sold it

13 to person AB for so much dinars or German marks or whatever, and thereby

14 he committed an aggravated theft under Article 148 and also article of the

15 decree," and now I am the investigating judge who has received such a

16 request, and attached to that request is the criminal report, two

17 informative statements by witnesses, a receipt on temporary seizure of

18 objects by the military police who caught him red-handed, a receipt that

19 the window or money had been taken from him, et cetera. And I issue a

20 decision and say: "On the basis of the attachments to the request for an

21 investigation, it is my judgement that there are grounds to believe

22 that XY did commit a criminal offence for which the investigation is

23 requested and an investigation will be carried out."

24 In the investigation, in order to confirm the facts indicated by

25 the prosecutor, I will carry out the following steps. So I will interview

1 two witnesses, whose informative statements were attached, and thereby

2 legalise their statements and transform them into evidence, valid evidence

3 during the proceedings. Then I will hear the citizen to whom the object

4 was sold, and I will limit my activities to these boundaries. If when I

5 interview the person to whom the stolen window was sold I learn that this

6 is the tenth stolen window being sold to him by the same person, I will

7 point that out in my note on the interview. And when I proclaim the

8 investigation complete, I will send all this to the prosecutor.

9 The prosecutor will determine on the basis of all of this

10 information whether an additional investigation is required, and he will

11 address the investigating judge and say, "Extend your investigation and

12 find out more about those other nine windows and find witnesses to confirm

13 this." And his decision will be bound by these reports. He cannot,

14 however, issue an indictment for a criminal offence that he did not

15 investigate. And then, of course, the court cannot try a person for a

16 crime he has not been charged with.

17 We never had an investigating judge who would be told the general

18 context along the lines, "Gentlemen, look into what happened in

19 village A." No, he always had to receive very specific information, and

20 any action beyond that would actually be illegal.

21 JUDGE SWART: So may I conclude from what you said that not only

22 at the trial but also during preliminary investigations the prosecutor

23 determined the scope of the investigation, and if he asks you to

24 investigate an event and he presented that as an isolated theft, then you

25 would have to remain within the limits set by him? Is that correct?

1 A. Yes. Yes.

2 JUDGE SWART: So that's what I wanted to know, your relationship

3 in the pre-trial stage in this field with the prosecutor.

4 I have some final questions on numbers. You said yesterday, "I

5 sat on 750 cases and I was involved in some 250 proceedings." I had a

6 question there. Were these all cases on -- on theft in abandoned houses,

7 or was this the total of the cases you have dealt with in your period as a

8 judge?

9 A. That's the total number of cases I was involved in while I was a

10 judge at the military court. And, Your Honour, they varied from crimes

11 that we called "forest crimes," and included rape, murder, war crimes,

12 et cetera, because I have said that I even signed a death sentence in the

13 course of my career at the military court. Since we were competent for

14 all crimes committed by members of the military, in those 750 cases I

15 acted as an individual judge and as the presiding judge - we called

16 this "the small chamber" because there was one professional judge and two

17 jurors and there was a larger chamber with two judges and three jurors -

18 so I was -- I investigated about 250 investigations. And on 259 times I

19 went to carry out on-site investigations during those periods.

20 JUDGE SWART: You were involved, we heard yesterday, in criminal

21 investigations with respect to theft from abandoned houses, and we have

22 also seen documents in which you play a role as a judge in these kind of

23 offences. My question is: Is it possible for you still after ten years

24 to -- to tell us how many cases of such offences you have seen in your

25 practice? I mean the thefts from -- from houses that were left alone by

1 their inhabitants.

2 A. I really don't know the statistics. But perhaps one-quarter,

3 perhaps that involved one-quarter of all the cases dealt with. This is

4 just a guess, but I would say that it was about one-quarter of the cases.

5 Usually crimes against property, but naturally these crimes were not

6 crimes committed against property and abandoned houses always.

7 But it was very important for me -- there's something I must add,

8 with your leave -- it was very important for me not only from a legal

9 perspective but also from a moral perspective, as a human being, you know,

10 given such a senseless war that had broken out in my country. There were

11 a lot of issues that were matters of priority. I don't want to be

12 pathetic, but we were hungry, we had no electricity, no water. We didn't

13 have the basic medical supplies that were required, and the military and

14 civilian authorities had to face senseless aggression, forces that wanted

15 to destroy everything that was human and positive. And given such

16 conditions, one could find the force and the resources to punish

17 individuals who had stolen a couple of items, a couple of chairs that had

18 been thrown out into the yard of an abandoned house.

19 I thought this was important to -- I thought it was important for

20 us to be able to do this in the circumstances. I thought it was important

21 to have the moral force to deal with such problems, and I didn't believe

22 that -- that we were not acting professionally. I believe that we were

23 able to operate in a very functional and correct manner, and this is still

24 my belief today, Your Honour.

25 JUDGE SWART: I fully understand the feelings that you must have

1 had in investigating or trying these cases, but I am only looking for a

2 quantitative indication of the phenomenon in your work. I guess from your

3 answer you may conclude that some -- one-quarter of your cases were

4 property crimes and that you were -- it is difficult for you to further

5 specify the number of -- the percentage of crimes consisting of thefts in

6 abandoned houses? Is that a correct interpretation?

7 A. Yes, you are quite right. I really couldn't specify that number

8 today. I expected you to ask me that question, and I'm trying to think

9 back to these events. But I believe that there were after all more cases

10 of general theft than of cases of theft of items from abandoned houses,

11 and for a very simple reason: In the territory over which my court had

12 jurisdiction, there were abandoned houses, but fortunately the population

13 wasn't being systematically persecuted. As a result, the property hadn't

14 been widely dispersed throughout the area, and that was the case in

15 certain other areas, where you had areas that were completely empty and no

16 one had remained there. You know, the authorities in the area where I

17 lived made efforts to protect people and their property, and that was not

18 the case for other authorities who acted in a contrary manner. So the

19 abandoned property that could have been plundered -- well, there wasn't so

20 much property. This is my interpretation, and I can't provide you with

21 any periods, but if I go back to the period, I believe that the number of

22 such cases was not as great as the number of other crimes. And naturally,

23 given the nature of this case, I believe that the chamber, given evidence

24 that was being presented to it, might arrive at an erroneous conclusion.

25 Because if you have a look at what's been placed on the table here, then

1 all we can see such cases.

2 JUDGE SWART: Again, I understand that this is a difficult

3 question to answer. You talked about your area in your answer. When you

4 talk about your area, do you mean the -- the district of the -- the area

5 over which the Zenica military court was -- had jurisdiction, or is it a

6 more loosely way of using the word "area" in your answer?

7 A. When I said "area," Your Honour, I was referring to any area

8 which was under the control of the legal authorities of the Republic of

9 Bosnia and Herzegovina and that in military terms was under the control of

10 the ABiH. It happened that I had the opportunity of seeing that the

11 situation in many other areas was identical, because given the role I had

12 and the duties I had to perform and given the decree law issued to

13 military courts which states that if one military court cannot operate in

14 its own territory, it will be replaced by the closest military court. So

15 as a result, I was also involved in the area of Sarajevo as a deputy

16 judge. So when I am referring to these matters, I'm referring to the

17 entire area, but in particular to the area over which the district

18 military court had jurisdiction, and this overlaps with the territory

19 under the control of the 3rd Corps of the ABiH, at least to a very large

20 extent.

21 JUDGE SWART: Thank you. I still had a more difficult question

22 in mind for you, and that was the question whether you could specify how

23 many cases of abandoned houses and thefts from abandoned houses you dealt

24 with in 1993, but I understand that this would really be an answer that

25 you cannot -- really be a question that you could not possibly answer at

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1 this moment, so I will not put that question to you.

2 Thank you very much for your answers.

3 [Trial Chamber confers]

4 JUDGE ANTONETTI: [Interpretation] Very well. I'll now give the

5 floor to the Prosecution.

6 MR. WAESPI: Thank you, Mr. President. Only briefly, before I

7 try to come back to the numbers.

8 Further cross-examination by Mr. Waespi:

9 Q. One issue: You told us -- or you told to His Honour Judge Swart

10 that it was important for you to do that, I guess, to -- to investigate

11 these things. And I quote you that you said that there was a "moral force

12 to deal with these problems." Do you mean, you know, to -- despite the

13 times of war, to deal with these criminal offences; that was important for

14 you?

15 A. In spite of the fact that war was raging, Mr. Prosecutor, it was

16 very important for me to be able to deal with criminal cases -- or rather,

17 those whose duty it was to carry out actions that would lead to

18 instituting criminal proceedings, I was glad that we had enough force to

19 deal with criminal cases and to investigate such cases.

20 You've reduced what I said to a personal opinion, you know.

21 That's my belief. I am a Bosnian, and I am a patriot, and when the war

22 broke out I was 39 years old. I was fit for military service and had I

23 received call-up papers, I would have immediately responded. That's what

24 I wanted to say. It was very important for me to live in an area that

25 hadn't been engulfed by hatred, that hadn't been engulfed by immorality.

1 I was living in circumstances that could be qualified as historically

2 responsible, and it was very important for me to be able to live with

3 people.

4 The fact that I was living with people there was very important.

5 And generally speaking, they were victims as a people. Marko Vesevic, the

6 poet, who is a member of my ethnic community, the Serbian community said

7 on one occasion, "Gentlemen, what is happening is Bosnia is not a war. It

8 is the elimination of the Muslims. It's killing Muslims." It was very

9 important for me in the area where I was born and in which there were far

10 fewer Muslims than in 1992 -- it was important for me that there was a

11 system there in which we tried to respect the law. And I believe that all

12 those who had been identified as perpetrators of a crime should be

13 reported and processed and sentenced. This was done -- this is very

14 important. It was important for this to be done on the basis of evidence.

15 No one was sentenced without evidence -- no one was convicted without any

16 evidence, nor was anyone accused of having committed a certain crime

17 because his name was of a certain kind and spoke one of the three

18 languages that you refer to with an abbreviation that consists of three

19 letters. That's what I wanted to say.

20 Q. And if nobody had acted like you and your colleagues and the

21 authorities, had looked into these cases, had investigated them,

22 prosecuted them, what would have been the message to the people on the

23 ground if these crimes would have went unpunished, uninvestigated?

24 A. What would the message have been? The message would have been

25 that they should first flee from the area and then that they should never

1 return there and everything would have been senseless. We would have all

2 been the same. In Zenica, the situation would have been identical to the

3 situation in, let's say, Prijedor, and the situation we had there was such

4 that anyone who did not want to leave did not have to leave. And believe

5 me, not thanks to me but thanks to General Hadzihasanovic, because the

6 people who were involved in the combat at the time, they had, as we say,

7 both a loaf of bread and a knife in their hands. But the composition of

8 the -- or the military police and the civilian police weren't fully

9 dedicated to their work -- or if --

10 THE INTERPRETER: Interpreter's correction: If they hadn't been

11 fully dedicated to their work, then the military court would have just

12 been "trompe l'oeil," and I wouldn't have had anything to do. I wouldn't

13 have had any work to do. The military court would have existed just for

14 show.

15 MR. WAESPI:

16 Q. And you would agree with me that if alleged perpetrators aren't

17 looked after, that would leave a sense of impunity which would encourage

18 others to follow and commit crimes? Would you agree with that?

19 A. Yes, I fully agree with that. But I'm just wondering whether

20 you're going to continue to ask me the same question by rephrasing it a

21 number of times.

22 Let's deal with this once and for all. I fully agree with you

23 that any event that is qualified as a crime should be investigated. Its

24 perpetrator should be identified and punished. This is called "general

25 prevention in peacetime," and it's part of -- of the law in all countries

1 throughout the world. This naturally does not mean that it's possible to

2 identify each and every perpetrator. This isn't possible in beautiful

3 Holland or in Switzerland and even less in Bosnia, where there was a war

4 raging. But if you seriously examine the statistics, I believe that you

5 will see that the percentage of perpetrators identified in Bosnia and

6 Herzegovina - and I'm referring to the area I lived in - that percentage

7 in comparison to the number of people, or reported the number of cases of

8 criminal reports, is greater than in Germany in the year 2004.

9 Q. And the principle of general prevention not only applies in

10 peacetime but perhaps even more in -- in times of war.

11 A. Naturally. It's important. General prevention is always

12 important. That's why according to the law in certain situations you have

13 to publish court decisions in the media. But naturally. Thank God that

14 that's the situation in the war. General prevention in wartime doesn't

15 only have an effect on potential perpetrators of crimes. It has a

16 significance that's quite different. It also sends a message to potential

17 victims. The message that if certain situations arise, they'll be

18 protected, and these potential victims can then take decisions as to how

19 they want to organise their lives. You know, you're -- if you had asked

20 me this question, it would have been impolite, but I'll answer this

21 question that you haven't put to me.

22 In 1992 and 1993, I was a Serb and I had all the characteristics

23 that this denotes. My assessment wasn't based on patriotism alone. I'm

24 too old and too well-educated. I've travelled a lot, so I wouldn't take

25 any decisions without such criteria. On the basis of those criteria, I

1 decided that my family and I should remain in the area where -- where we

2 were when the war broke out, and believe me, I didn't make a mistake.

3 Q. Let me just briefly return to the issue of -- of numbers. And

4 perhaps you can -- you can answer it; perhaps not.

5 Do you recall of all the cases you were involved - the same time

6 frame Judge Swart referred to - how many were purely military offences,

7 meaning desertion or disobeying orders, abandoning front lines, as opposed

8 to, you know, the -- the theft of property of abandoned houses? How many

9 were purely typical military offences in percentage, if you can tell us?

10 A. I don't know the percentage. But if you ask me -- well, I

11 arrived there in October 1992. At the time, we had quite a lot of cases,

12 a lot of cases that involved service in an enemy force. The number of

13 these cases was then reduced and many of those cases were then -- were

14 described as illegal possession of arms and explosives. They were given a

15 less serious crime. And I know that up until the end of 1992 and at the

16 beginning of 1993 this was the situation.

17 Afterwards, there were certain events in the territory of the

18 district military court in Sarajevo. It had to do with certain -- with

19 certain events in the ranks of the ABiH. The command believed that there

20 had been an armed rebellion in the Juka Prazina Special Unit. I then went

21 to Igman because the Sarajevo judges weren't able to do so given the

22 encirclement of Sarajevo; they could not leave the town.

23 And two or three months later we were involved in this purely

24 military matter. Then I know that we worked intensively on two types of

25 crimes: One was -- the first was the crime of refusing to accept the

1 call-up papers, of avoiding one's military service; and there were also

2 the crimes of willfully abandoning the armed forces. This concerned a

3 period during which the troops were being disciplined. This is an

4 important period and it coincides with the time when the 3rd Corps was

5 being established. And many events of willful abandonment were processed,

6 many cases of selling weapons. There was also the crime of inappropriate

7 treatment of weapons issued, cases of refusing to obey orders, cases of

8 abuse in the course of military service. Certain military policemen had

9 been reported. Also in the battalion within the corps. So when the court

10 was established, the court received a lot of criminal reports that came

11 under this heading, "Criminal reports against the armed forces." We had

12 one or two cases that involved betrayal, abandoning military equipment.

13 So those were cases under that heading. And the majority of cases at that

14 period of time were of such a nature.

15 Later I remember something else. At the beginning of 1994,

16 the -- there was a rise in the rate of murder and we had to deal with

17 this. This is no longer of interest to this case here, but -- and

18 later -- again, this is not something that interests you, but there were

19 cases of people who appropriated property that had been given them to

20 guard temporarily. And this was then punished. But I think that in 1993,

21 in the spring of 1993 and afterwards, most of the cases -- most of the

22 criminal cases were of this kind. And we knew that this corps was being

23 established, we knew that there were large-scale changes being introduced

24 there, and I know that they even said that a scarecrow had arrived in the

25 3rd Corps, and they were referring to General Hadzihasanovic, and that

1 everything would be strict and hard as of that -- from that time onwards.

2 These are statistics that can be found very easily. All the

3 archives are still in existence. All the records are still in existence.

4 And it's easy to see how the cases arrived at the court, how we dealt with

5 them, and how we processed them.

6 Q. And my last question is, again, about these numbers, and

7 hopefully it can be a little bit shorter. How many cases involved the

8 members of the armed forces or the -- the warring parties, like HVO

9 perpetrators against ABiH victims and the other way around? Have you

10 dealt with any such cases at all? And if so, in your opinion,

11 recollection, how many cases involved perpetrators, HVO or ABiH on the one

12 side against the victims or the other warring party on the other side, if

13 you recall?

14 A. I don't know that there were any such cases that I was involved

15 in. A moment ago a case that you mentioned had to do with the killing by

16 the HVO of two civilians on a public road. The HVO after the division did

17 not recognise our jurisdiction. They set up their own judicial system.

18 Just as they formed their own state, they had their own prosecutor, their

19 own courts. So I do not recollect any case with such characteristics that

20 you have referred to.

21 MR. WAESPI: Thank you very much, Mr. President.

22 JUDGE ANTONETTI: [Interpretation] Thank you.

23 It is 25 to 1.00. We shall have the break, and we will resume at

24 1.00.

25 --- Recess taken at 12.36 p.m.

1 --- On resuming at 1.00 p.m.

2 JUDGE ANTONETTI: [Interpretation] I shall now give the floor to

3 the Defence for any additional questions they may have.

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

5 Further examination by Ms. Residovic:

6 Q. [Interpretation] Mr. Veseljak, let us continue with the set of

7 questions relating to numbers, as my learned friend said. You said

8 yourself that during the war you tried more than 700 cases and

9 participated in about 200 investigations. Before that, you said that

10 during the war there were a total of eight criminal judges in the court.

11 A. On average, eight. Sometimes one less or one more.

12 Q. If we wanted to find out the total number of cases processed,

13 would that mean that the numbers you gave should be multiplied by the

14 number of colleagues you had in court or do you believe that your

15 colleagues didn't have as many?

16 A. I worked on slightly more cases, so I don't think you could

17 multiply it with eight, but roughly. I did -- I was involved in a

18 slightly larger number of cases than others.

19 Q. In any event, during the war, it would amount to several thousand

20 cases.

21 A. Yes.

22 Q. Tell me, the persons against which you conducted trials, who were

23 those persons? Were they civilians or military?

24 A. In an enormous majority of cases, they were military personnel.

25 Q. Earlier you told us about the duties of the military police and

1 the civilian police who filed criminal reports. Tell me, to what extent

2 and in what percentage of cases in the phase of filing criminal reports

3 when the prosecutor is given the possibility of starting proceedings, did

4 the 3rd Corps participate, its military police battalion, and other

5 brigades and battalions? Were they in most cases the bodies filing

6 criminal reports which were tried by your court?

7 A. The percentage of criminal reports submitted by others as

8 compared to the number of criminal reports filed by the 3rd Corps or,

9 rather, the military police battalion was negligible.

10 Q. This fact that you just testified to that most of those

11 proceedings were instituted on the basis of criminal reports filed by the

12 3rd Corps and its military police battalion and other units, is it linked

13 in any way to your testimony that the army endeavoured to prevent and

14 investigate every crime? Is this linked?

15 JUDGE ANTONETTI: [Interpretation] Just a moment, please. There's

16 on objection by the Prosecution.

17 MS. RESIDOVIC: [Interpretation] I'll rephrase the question.

18 MR. WAESPI: Yes, thanks. Also, the previous question, were most

19 of these cases 3rd Corps, that's a leading question. All these words are

20 indicative of an answer. And I also wonder whether that really arises of

21 the issues which the Judges concerned. I don't think there was any

22 mentioning of the 3rd Corps military police.

23 JUDGE ANTONETTI: [Interpretation] Very well. The Defence, could

24 you rephrase your question.

25 MS. RESIDOVIC: [Interpretation] I think that my questions were

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1 related to questions of my colleague, who spoke of the military police,

2 and the Judges, who referred to military units.

3 Q. You said that all organs under control of the army and the legal

4 authorities sought to create an environment of security. Do you remember

5 that?

6 A. Yes.

7 Q. Tell me, how do you assess such a large number of criminal

8 reports filed by the army or its security organs?

9 A. My assessment is that this was a clear example of respect of the

10 law by the army and its organs.

11 Q. My learned friend asked you about criminal offences linked to

12 purely military discipline. My question is: To what extent disciplining

13 the army or prosecuting the military for acts linked to military orders,

14 failure to obey, abandoning the front, et cetera, to what extent efforts

15 to discipline the army are linked to crime prevention, prevention of

16 crimes being committed by the same army.

17 A. These are directly linked and very important.

18 I have to remind you that we were living under circumstances when

19 there was a decision on a general public mobilisation, which theoretically

20 meant that we were all part of the army. If you managed to discipline the

21 largest entity in the population, you're really establishing public

22 discipline throughout because people would reason as follows: If the army

23 prosecutes its own members, then obviously the army is endeavouring to

24 establish the rule of law and peace, law and order.

25 Q. You also said that there were undiscovered criminal offences. My

1 question is whether in that period of time there were certain factors

2 which had a decisive impact on the ability to discover each and every

3 perpetrator.

4 A. In the second part of your question, you corrected the first part

5 of that question, which was not precise. We can't speak about -- about

6 undiscovered criminal offences but unidentified perpetrators. And there

7 were a series of factors which were an obstacle to detecting every

8 perpetrator. I referred to some of them yesterday, and I am going to

9 repeat today. People without ID documents, a territory segmented and

10 fragmented, certain arrangements of a territorial and political nature

11 which were contrary to the Constitution, a significant fluctuation of the

12 population, the killing of perpetrators of criminal offences. We would

13 frequently discover that the perpetrator of an offence subsequently was

14 killed. Then also the deaths of witnesses who got killed either as

15 civilians or as members of this or that army, obstacles in the form of

16 logistics, the shortage of certain resources, the lack of freedom of

17 movement, inability to access the scene of crimes, the moving-out of

18 perpetrators that we suspected to an area which came under a different

19 jurisdiction, and so on. There were many reasons that hampered and often

20 prevented this.

21 Q. My learned friend also asked you in connection with various types

22 of criminal offences. My question is: Did you process and try the -- for

23 perpetrators of criminal offences of impermissible trafficking and trade?

24 A. We did have the following situation: This is a picture that I

25 don't think people will be able to understand who didn't experience what

1 we did. There was something that we called a flea market. There was a

2 shortage of everything, and on that market sometimes stolen goods would

3 appear. And military police patrols would tour these flea markets and

4 take in persons selling goods at such places, and they were processed for

5 the criminal offence of unlawful trade. And if you catch somebody selling

6 a stolen telephone, then in his defence he would tell you how he got hold

7 of that telephone, and then in that way we would discover the thief, the

8 person who stole that good. So we had many cases of unlawful trade.

9 Q. In answer to a question of His Honour the Judge, you answered

10 questions about the position of the damaged party if the prosecutor

11 doesn't institute proceedings. Tell me, please: If the prosecutor has

12 material that does not point to a particular perpetrator, known or

13 unknown; for instance, if he only has his on-site investigation report and

14 the assessment that there's no reason to suspect that a criminal offence

15 had been committed, is he then in a position to reject that material or

16 those documents or to shelve those documents? Is the position of the

17 damaged party different -- does it slightly differ from what you explained

18 to Their Honours?

19 A. Maybe we didn't quite understand one another. In the situation

20 when on the basis of facts or information collected the prosecutor comes

21 to the conclusion that the acts presented do not constitute a criminal

22 offence and he decides to suspend the investigation, he will inform the

23 damaged party that within a period of eight days he can continue the

24 prosecution. If the prosecutor doesn't find a single piece of evidence

25 that an act took place, then logically the damaged party does not exist,

1 so he has no one to inform.

2 Q. That is precisely what I wanted to see, whether there's any

3 difference between a prosecutor making a decision and him failing to

4 inform someone. You have explained that now.

5 In view of the wartime conditions under which the prosecutor was

6 working, as were all the other bodies, tell me to what extent those

7 circumstances contributed to lack of knowledge about the injured party,

8 who he was, where he was, or was he always accessible to the judiciary?

9 A. I think that I can say that very frequently the injured party was

10 not accessible and he was not even known. The police found a man who was

11 carrying an object, established that he had stolen it somewhere. You

12 can't find out who it belongs to or under which circumstances he stole it.

13 You yourself showed a number of documents speaking about the processing of

14 the stealing of the property of an unknown owner, and you can't inform

15 such an unknown owner about the investigation.

16 Q. His Honour Judge Swart asked you several questions in relation to

17 abandoned houses, and explaining the procedure you mentioned what the

18 investigating judge is bound by when a request is addressed to him by the

19 prosecutor. You gave an example that in the description a rape was

20 described; whereas, the investigating judge qualified it as a parking

21 offence for the sake of argument. Tell me, as an investigating judge,

22 were you bound by that legal qualification given by the prosecutor during

23 the investigation stage already now?

24 A. The investigating judge was not bound except to the following

25 extent: There was a situation in which the investigating judge would

1 assess that the quantity of information regarding suspicion does not in

2 the least lead to a criminal offence being committed. So there is a

3 situation when the investigating judge is -- opposes an investigation, and

4 if an investigating judge expresses this disagreement in an official note,

5 then the final decision would be made by the court -- by the trial chamber

6 consisting of three professional judges, and that would be the final

7 decision. So only if the investigating judge finds that on the basis of

8 documents provided to him there aren't any elements to support a

9 well-founded suspicion.

10 Q. Tell me, please: In other situations, when a decision is taken

11 to carry out an investigation, you as an investigating judge, what would

12 you say in the description of the rape, that such a person on

13 such-and-such a day raped somebody? What would you put down as the crime,

14 regardless of what the investigating judge said?

15 A. We would copy the description from the prosecutor, yet the

16 qualification we would change. A change -- any change in the disposition

17 would be unlawful in both the subjective and objective sense. We were

18 always linked to the individual and to the description.

19 Q. Thank you. Explaining to His Honour to what extent you assessed

20 a certain act which you were investigating or trying, you referred to new

21 characteristics of the criminal offence of theft, that is, new sanctions

22 prescribed by the decree with the force of law. Mr. Veseljak, as I have a

23 collection of all the Official Gazettes from 1992, were you referring to

24 the decree with the force of law amending the decree on the implementation

25 of the Criminal Code of Bosnia and Herzegovina and the Criminal Code of

1 SFRY taken over as the republican law in conditions of immediate threat of

2 war and state of war, published in Official Gazette no. 21 dated the

3 23rd of November, 1992 on pages 570, 571, and 572?

4 A. Yes. But there's another one.

5 JUDGE ANTONETTI: [Interpretation] The Prosecution.

6 MR. WAESPI: Yes, I don't think that's really contested, but it's

7 obviously highly leading. My learned friend is testifying right now.

8 MS. RESIDOVIC: [Interpretation] Mr. President, I believe quite

9 the opposite. The witness mentioned this decree. In his answer he

10 said 1993. And as I have the decree in front of me, I thought it would be

11 a good idea for the witness to confirm whether he referred to this decree,

12 which drastically increased the sanctions for certain criminal offences,

13 and I don't see why this is leading.

14 JUDGE ANTONETTI: [Interpretation] Continue.

15 MS. RESIDOVIC: [Interpretation] Thank you.

16 Q. Mr. Veseljak, answering a question from His Honour Judge Swart,

17 you said that the minimum penalty was three years up to the death penalty

18 for the criminal offence of theft from abandoned property; is that right?

19 Tell me, please, whether there were any other offences for which

20 much higher sentences were envisaged, including the death penalty, if

21 committed by a military man and if it had to do with abandoned property.

22 A. The same offence committed by a civilian was sanctioned more

23 leniently than one committed by a military personnel. The -- the fact

24 that somebody was in the military meant that the stricter law would be

25 implied -- would be applied.

1 Q. I'm now asking you as a judge: Is this the decree you were

2 referring to and which the judges were obliged to implement?

3 A. Yes. This can be seen from the documents that were on my table a

4 moment ago which you provided or the Prosecutor in which when giving the

5 legal qualification of an act we referred to the basic text of the law,

6 and I think it is Article 10 of this decree which provides for stricter

7 sanctions, and this can be seen from the judgements, and certainly that

8 was the decree amended the law and it became law and we implemented it.

9 Q. When you were speaking about the number of criminal offences and

10 their qualification in answer to His Honour the Judge, you provided some

11 clarification as to kind of -- the descriptions of acts that you received.

12 Tell me, please: When viewing that period, were all the events

13 discovered, processed, as far as you know, regardless of whether that act

14 was qualified in one way or another?

15 A. I think I can answer in the affirmative, that all events were

16 processed with the description given by the prosecutor and his proposal as

17 to the legal qualification to be given.

18 Q. Since as a judge you were active throughout the war, can you tell

19 us that these thefts, and particularly thefts from abandoned property, did

20 they occur over a short period of time or did you come across such thefts

21 throughout the war?

22 A. Throughout the war, for the duration of the war. And I even

23 think, as far as I can now remember -- I don't think one particular period

24 could be identified. Perhaps the majority of thefts occurred during the

25 period of hunger in 1994, which was so drastic that I, as someone

1 receiving a salary, on average would eat once in three days. And I think

2 that the incidents of thefts was higher in that period.

3 Q. Now that you have referred to this period of hunger, were

4 civilians also hungry and did they steal?

5 A. Yes, civilians were hungry too.

6 Q. Do you know how many civilians were prosecuted in regular courts

7 for similar offences?

8 A. I don't know the number, but I know that my dear colleagues in

9 basic courts and the higher court competent for aggravated thefts had

10 their hands full at the time.

11 Q. Since you have already answered some questions I had in mind in

12 answering questions from my learned friend, I have no more questions for

13 you and I thank you for answering them for me.

14 JUDGE ANTONETTI: [Interpretation] The other Defence team?

15 MR. IBRISIMOVIC: [Interpretation] No questions. Thank you,

16 Mr. President.

17 JUDGE ANTONETTI: [Interpretation] Sir, your testimony has been

18 completed. During two days, you answered all the questions put both by

19 the Defence and the Prosecution, as well as the Judges. I wish to thank

20 you for this. And on behalf of the Chamber, we wish you a safe journey

21 home and success in your new professional as an attorney-at-law. And I

22 also wish you all the best in your professional activities.

23 I should like to ask the usher to accompany you out.

24 THE WITNESS: [Interpretation] May I say one sentence before

25 thanking the Court?

1 It was an honour, Mr. President and Your Honours, to testify in

2 this Tribunal. I did not have the possibility of saying something in

3 response to what you said at the beginning, and that is that the Tribunal

4 is not on anyone's side and I have the pressing need to tell you that I

5 was brought here as a witness by the Defence. I, too, am not on anyone's

6 side. And I repeat once again my oath that whatever I told this Court is

7 the truth and nothing but the truth.

8 Thank you very much, and I wish you every success in your

9 activities.

10 [The witness withdrew]

11 MS. RESIDOVIC: [Interpretation] Mr. President, on page 79, line

12 12, the answer of the witness does not appear in the transcript. I asked

13 whether civilians stole as well, and the witness said yes, that they too

14 were processed. And line 12 does not reflect that answer of the witness.

15 JUDGE ANTONETTI: [Interpretation] Yes, we take note of that.

16 We have a quarter of an hour left. We won't have time to bring

17 in the witness, but there is the question of documents. I noted that on

18 the list of documents you indicated that these documents would also be

19 used for another witness. In that case, you will wait for the next

20 witness before requesting admission of those documents into evidence? Are

21 we in agreement?

22 MS. RESIDOVIC: [Interpretation] Yes, Mr. President. As tomorrow

23 we will have the next witness, perhaps it would be best for us to tender

24 the documents after we have heard that witness.

25 JUDGE ANTONETTI: [Interpretation] Thank you.

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1 As for the Prosecution, there were two documents, number 2 and

2 number 14.

3 MR. WAESPI: Yes, Mr. President. I did not use number 14, so I

4 don't tender it. And Exhibit number 2 has also been the -- the -- or tab

5 number 2 has also been tab number 2 of the first category of the Defence

6 exhibit, on-site investigations. So assuming that the Defence will

7 eventually tender that document - and that's the Zenica 19th April 1993

8 report - then I don't need to tender anything in this regard.

9 Thank you.

10 JUDGE ANTONETTI: [Interpretation] Very well. We will go into

11 private session now.

12 [Private session]

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7 --- Whereupon the hearing adjourned at 1.46 p.m.,

8 to be reconvened on Wednesday, the 16th day of

9 February, 2005, at 9.00 a.m.

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