Number: X- KR/08/552

Sarajevo, 16 September 2008

Court of Bosnia and Herzegovina, Judge Elizabeth Fahey, as the Preliminary Hearing
Judge, in the criminal case against the accused Z.T. for the criminal offense of Genocide
referred to in Article 171 of the Criminal Code of BiH (hereinafter: the CC BiH), in
conjunction with Articles 29 and 180(1) of the CC BiH, deciding upon the preliminary
motions concerning the Indictment of the Prosecutor’s Office of Bosnia and Herzegovina
number KT-RZ-143/07, dated 18 August 2008, filed by the defense counsel for the
accused Z.T., pursuant to Article 233(3) of the Criminal Procedure Code of Bosnia and
Herzegovina (the CPC BiH), on 16 September 2008 rendered the following

DECISION

The preliminary motions concerning the Indictment by the Prosecutor’s Office of Bosnia
and Herzegovina number KT-RZ-143/07, dated 18 August 2008, filed by the accused Z.T.
through his defense counsel Petko Pavlović, ARE HEREBY REFUSED as unfounded.

Reasoning

The Indictment by the Prosecutor’s Office of Bosnia and Herzegovina number KT-RZ-
143/07, dated 18 August 2008, which was confirmed on 25 August 2008, charges Z.T.
with the criminal offense of Genocide referred to in Article 171 of the Criminal Code of
BiH, in conjunction with Article 29 and Article 180(1) of the CC BiH.

The defense counsel for the accused Z.T. has filed the preliminary motions concerning the
Indictment for the reasons stipulated under Article 233(1)(a) and (d) of the CPC BiH.
With regard to subparagraph (a) of the mentioned article, the defense counsel states that
only the law which was in effect at the time when the criminal offense was perpetrated
can be applied to the accused Z.T., namely the Criminal Code of SFRY. Given that the
criminal offense charged against the accused was perpetrated in 1995 in the territory of
the present-day Republika Srpska, the defense counsel submits that the Criminal Code of
SFRY as such was in effect, since Republika Srpska adopted that code, and that it is
obvious that that code is more lenient to the accused and should be applied as such,
especially if it is taken into account that the death penalty has been abolished. With regard
to subparagraph (d), the defense counsel states that many witnesses were examined and
that the statements of these witnesses were obtained unlawfully, so they cannot, as such,
constitute significant grounds for filing the indictment. The defense counsel particularly
points out the obtaining of the statement of the protected witness D-5, assessing it as false
and as a statement given in the way that this witness used certain privileges and benefits
granted by the Prosecutor’s Office. The defense counsel further states that, in the course
of the investigation, the Prosecutor’s Office did not collect evidence that is exculpatory
for the accused, which is an obligation that follows from Article 14 of the CPC BiH.

In its response dated 12 September 2008, the Prosecutor’s Office of BiH submits that the
preliminary motions concerning the Indictment are unfounded and proposes that the Court
refuse them in their entirety. Concerning the reasons stated by the defense counsel, the
Prosecutor’s Office states that the preliminary motions were filed for the reasons
stipulated under Article 233(1)(a) and (d) of the CPC BiH. With regard to the reasons
stated under subparagraph (a) of the mentioned article of the CPC BiH, the Prosecutor’s
Office submits that the content of the preliminary motions does not challenge the
jurisdiction of the Court of BiH, but this motion challenges the application of the Criminal
Code of BiH as a code which is not more lenient to the accused. The Prosecutor’s Office
submits that the application of substantive law does not constitute grounds for filing
preliminary motions, so for these reasons it is inadmissible and premature to file motions
of this kind. With regard to the reasons stated under subparagraph (d) of the Code, the
Prosecutor’s Office points out that the defense counsel does not specify which pieces of
evidence were collected unlawfully, but only states his position about the statement of the
protected witness D-5, holding that it is false because it was made as such on the grounds
of special privileges and benefits which the Prosecutor’s Office allegedly gave to this
witness. The Prosecutor’s Office submits that the defense counsel in this way engaged in
challenging the existence of grounded suspicion, which does not constitute a reason for
filing preliminary motions.
Having considered the motions by the defense counsel and the response by the
Prosecutor’s Office, the Court has concluded that the motions are unfounded.

Considering the existence of the circumstances stipulated under Article 233(1)(a) through
(f) of the CPC BiH, in the light of the amendments to this Article of the CPC BiH 1, the
Court states that preliminary motions are motions that challenge the jurisdiction of the
court, stress the circumstances under Article 224(1)(d), allege formal defects in the
indictment, challenge the lawfulness of evidence or confession obtained, seek joinder or
separation of proceedings, and challenge the refusal of a request for appointment of the
defense attorney. Unlike the confirmation of the indictment, which constitutes a factual
inspection of the indictment of its kind carried out ex officio by the preliminary hearing
judge, the preliminary motions are used to carry out an indirect court inspection of the
charges on the initiative of the accused and the defense counsel. The purpose of both
mentioned inspections is to avoid bringing the accused before the court unnecessarily if
the legal requirements for trial have not been met. In the present case, in the preliminary
motions concerning the Indictment of the Prosecutor’s Office number KT-RZ-143/07,
dated 18 August 2008, which was confirmed on 25 August 2008, the defense counsel for
the accused Zoran Tomić, although he invokes the legal grounds for filing the preliminary
motions stipulated under Article 233(1)(a) and (d) of the CPC BiH, does not state in the
reasoning any specific circumstances as grounds for filing the preliminary motions, but
challenges with his allegations the application of substantive law and the application of a
more lenient law to the perpetrators, while he does not state any specific circumstances
regarding the unlawfulness of evidence.

With regard to the motion challenging the lawfulness of evidence, the Preliminary
Hearing Judge is satisfied that in this phase of the proceedings there is sufficient evidence
corroborating the existence of grounded suspicion that the accused committed the specific
criminal offense and that the evidence was obtained lawfully, all of which was sufficient
to confirm the Indictment. The Court holds that this motion is stated arbitrarily, without
being supported by any arguments, and that it is unconvincing, since it is only stated that
many witnesses were examined unlawfully and that, as such, their statements could not

1
Official Gazette of Bosnia and Herzegovina No. 58/08
have constituted valid grounds for filing the Indictment and thereby for the confirmation
of the Indictment by the Court. The defense counsel specifically stated only the manner in
which the protected witness D-5 gave his statement, analyzing his statement, but without
specifically stating why that statement was obtained unlawfully. The concept of unlawful
evidence is defined under Article 10 of the CPC BiH, where it is specifically stated which
evidence is considered unlawful and for what reasons. Thus, unlawful evidence is
evidence which was extorted, evidence obtained through violation of human rights
prescribed by the Constitution and international treaties ratified by BiH and evidence
obtained through the essential violation of the criminal procedure code. The Court
reminds the defense counsel that the preliminary motions challenging the lawfulness of
evidence refer to all evidence which was presented during the investigation and which the
Prosecutor’s Office collected and delivered to the Court with the motion to confirm the
Indictment, and not only to a single specific statement given by the protected witness D-5.
In this phase of the proceedings, the Court did not engage in the assessment of the
proposed evidence or deal with the assessment of the statement of only one of the
protected witnesses, in the present case the protected witness D-5, to whom the defense
counsel refers. Certain allegations stated in the motions can be checked only during the
main hearing, in the evidentiary proceedings, by the presentation of evidence through the
examination of the protected witness D-5, but also other witnesses, and then by a
conscientious assessment of every piece of evidence individually and collectively, all of
which is a matter of a trial-adversarial proceeding.

In accordance with the foregoing, the Court has rendered the decision as stated in the
operative part pursuant to Article 233(3) of the CPC BiH.

PRELIMINARY HEARING JUDGE

Ranko Debevec

LEGAL REMEDY: No appeal from this Decision is allowed.