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Prosecutor's Mistake Does not Mean that Damjanovic will be Released, but it Seriously Affects Credibility of Bosnian Justice

by Edin Subasic and Zehra Alispahic

Ljiljan, Sarajevo, Bosnia-Hercegovina, 3/11/97

Besides Mladic and Karadzic, probably the best known Serb criminals are the two Sarajevo Chetniks, Borislav Herak and Sretko Damjanovic, who were arrested and tried in March, 1993. That was the first trial for war crimes committed in Bosnia. It was followed by numerous foreign reporters, news and TV companies. By all means, it was a media, political and psychological spectacle. Borislav Herak confessed about thirty murders of civilians, six slaughtered war prisoners and multiple rapes; he accused Damjanovic of several murders, rapes and looting. At first, Damjanovic confessed, but later retracted his confession. However, Herak was merciless with his perfectly memorized accusations; his statement was actually the main evidence in the trial. Both of them were sentenced to death by shooting. The Supreme Court of Bosnia-Hercegovina has twice confirmed the sentence, but it still hasn't been carried out.

Three Questionable Damjanovic's Murders

Four years later, a relative of Damjanovic met in Vogosca, which had recently come under the control of Bosnian authorities as a result of the Dayton Agreement, Kasim and Asim Blekic, two of the six people for whose murder, among other crimes, Sretko Damjanovic had been sentenced to death. But, that is not all: his defender, Sarajevo lawyer Branko Maric found out that a year after Herak and Damjanovic had been sentenced , Higher Court in Sarajevo began investigation against 154 Chetniks because of the suspicion that they were involved in a genocide. Items 12 and 13 of the investigation warrant (issued by the District Military Court, number Ki-III-3085/93) stated that Ramiz Krso had been slaughtered by Bozo Jeftic and Miro Vukovic. The problem is that Damjanovic had already been sentenced for the murder of the same person, Ramiz Krso. Therefore, who really slaughtered Ramiz Krso?

Excerpt from the Indictment against Damjanovic

Damjanovic Sretko
as a citizen of Bosnia-Hercegovina, since the beginning of the war of aggression against Bosnia-Hercegovina, serving in the enemy army of the so called "republic of srpska", as a member of the unit Kremes, participated in the forcible expulsion of muslims from the villages of Kremes, Garez, Bratici, Hrese, and Zuci; he murdered the two Blekic brothers, slaughtered Ramiz Krso from the village of Krso, killed a so far unidentified man, and raped and killed young woman named Amela who he took from the jail named "kod Sonje"; he also raped a young woman named Mirsada in the jail "kod Sonje", and looted Bosniak homes and vacation houses; he looted the following objects: two stoves "Preporod", a cooker, 4 washing machines, 3 tape players, 4 TVs, table and 4 chairs, phone "Iskra", 2 fridges, 2 freezers...

With that, the number of murders of which Damjanovic is accused has fallen to three. Since the new facts have surfaced, lawyer Maric sent on 12/9/96 a proposition for a retrial to the Higher Court in Sarajevo. As we unofficially found out, the reply is expected in ten days.

It is not rare that new facts surface after an investigation, trial and sentencing. Evidence and facts often turn out not to be what they seem at first... The history of judiciary records thousands of innocents who were wrongly sentenced and executed but also even a greater number of criminals who were not punished for "the lack of evidence".

Still, "Damjanovic Case" isn't a drastic example for that. Even if he didn't kill the Blekic brothers and Ramiz Krso he is still guilty of the murder of three people, rapes, looting and expulsion of Bosniaks from the Vogosca municipality. In the indictment and sentence, the committed crimes were characterized as a war crime against civilians, war prisoners and genocide. This article does not intend to defend Sretko Damjanovic or to diminish the extent of his crime. Sretko Damjanovic is a Chetnik who should be punished for his crimes. Although the only evidence for the murders were the statements by Herak and Tomic (other witnesses testified that he had beaten war prisoners) and there was no material evidence for them, it is obvious that he is a criminal who has committed many crimes against Bosniaks because of his nationalism; by doing that he implemented genocidal policy of the Serb leadership. The problem is that now, "Damjanovic case" will be used to discredit Bosnian judicial system which the enemies of Bosnia-Hercegovina try to portray as incompetent, too politicized etc. Unfortunately, certain grounds for such accusations do exist. It is enough to mention that during the investigation and trial Damjanovic's "victims" lived in Sarajevo, in Ugorsko, and, as members of the First motorized brigade, fought on the front. They knew very little about the trial. It is astounding that no one who knew them informed them or the Court that some Chetnik was accused of murdering them.

However, it is worrisome that the then investigator, actually investigative magistrate Saban Maksumic didn't make a necessary effort to obtain more convincing evidence, or at least remove the risk of such scandal for the Bosnian judicial system.

How was the Investigation Conducted?

Of course, one should remember that in the midst of fighting for the defense of Sarajevo at the start of 1993, one couldn't even think about the collection of evidence at the place of the crime nor look for witnesses, mostly refugees. But that immediately brings up new questions. Why was the trial held with such evidence? Did the Military District Prosecutor have enough evidence for an indictment issued by prosecutor Ljubomir Lukic? Also, could the chair of the five judge panel who made the decision in the case, Fahrudin Tefterdarija issue a verdict on the bases of offered evidence??? Naturally, all answers must take into account various extra-legal factors: difficult situation in the city, a need to explain to the international factors the real situation in the country, the general atmosphere in the city, readiness of the masses for lynch which had to be channelled through a judicial action etc....

Ljiljan tried to reveal the background of the trial with the main protagonists, to answer all controversial questions, check the quality of verdict etc. The real goal of this "digging" through the "Damjanovic case", which our side tried to ignore, is to sound an early warning and make sure that someone's inability or premeditated planting of fake evidence doesn't ruin indictments against bigger fish. The trials against Mladic, Karadzic and others from the warrants issued by the Hague Tribunal still await us. One must not forget that the work of the International tribunal is mostly based on the evidence collected by the relevant domestic services!

THe defence council for the second accused Sretko Damjanovic (36) claimed during the trial that there was not enough evidence for Damjanovic's guilt.

Maric: "There Must be a Retrial!"

"It turned out that I was right. We didn't have precise identification of three victims and the three victims who were identified are now questionable. The Blekics are alive, and other persons were indicted for the murder of Krso. I expect that the Higher Court will respond to my proposal by calling for a new trial. If these facts in connection with my client's case are ignored that will be a huge shame for our judicial system. Taking into account that the territory where the alleged crimes took place is now under our control, it is possible to search for evidence, stage reconstructions and check other information. Muslim inhabitants of the village of Krso have returned to the village and can now be questioned about the conduct of the accused," says Maric.

Defense council for the first accused, Borislav Herak, lawyer Milan Prpa, left Sarajevo a year after the trial and now lives in Novi Sad. The then prosecutor, Ljubomir Lukic, also isn't any more in Sarajevo; he now lives in Paris. After Prpa's departure, lawyer Vaso Simanic from Sarajevo took over Herak's defense. Simanic hasn't asked for a new trial for his client, but he says:

"I am in contact with Maric; I am waiting for the Court's reaction to his request. If his client gets a new trial, according to our laws, the whole process must be repeated, for all three accused: Damjanovic, Herak and Tomic." To our question whether there are new elements in Herak's case and whether he now denies murders and rapes which he earlier confessed, Simanic replied:

"No, in Herak's case there are no new elements. During my most recent visit, on March 5, he didn't say anything regarding that. He doesn't deny anything. Besides, the complaint of the previous defense council, that Herak is mentally unfit to stand a trial, was rejected by the Court experts. Nevertheless, if the trial is repeated I will demand concrete evidence: establishment of the exact time and place of crimes, and questioning of witnesses. We would also demand exhumation of corpses or search for other evidence of crimes for which my client was indicted."

The third accused, Nada Tomic, doesn't stand to gain anything from a new trial. At the first trial she was sentenced to two and a half years in prison for safeguarding of stolen goods but she was released soon afterwards in a prisoner exchange.

Saban Maksumovic, the investigative magistrate in the case against Damjanovic has this to say about the case, four years after the end of the trial:

"I was the investigative magistrate and I conducted the investigation. All that was demanded in the investigation warrant was accomplished at that time. Once the indictment was issued, the presiding judge took over the case. The judges thought that the evidence was convincing and decided that the accused were guilty and sentenced them accordingly. Nevertheless, it is always possible to find new evidence which is presented to the Court. In that case, everyone has a right to demand a new trial. If the people for whose murder Damjanovic was indicted are now alive, there are always grounds for a new trial. But, if some of his alleged victims are alive, it doesn't mean that the accused is not guilty, because in addition he killed a few more persons. The fact that two are alive doesn't remove his responsibility for other murders."

Mr. Maksumovic also said that his conscience is clear because he followed the investigation warrant and accomplished everything that was demanded in it:

"That was a different time. Something like that can happen in peace, let alone in a war. The investigation was as complete as any other. Situations like this one are not uncommon in legal practice. In that case, if there are grounds for a new trial, the legal process is repeated."

Teftedarija: "If He didn't Kill Six People, He Killed Three, and He is Guilty for Everything Else!"

Lawyer Fahrudin Teftedarija, the judge who sentenced Herak and Damjanovic to death, exhibited similar professional indifference in connection with the appearance of living victims of prisoners of the death row. This is what Mr. Teftedarija stated to this journalist several minutes after sentencing Herak and Damjanovic to death in 1993:

"This is the first death penalty in my professional career. I believe that the investigation was complete and fair, the trial as well, and that their guilt has been proven. Herak and Damjanovic committed such crimes that the death penalty is the only appropriate punishment for committed and proven crimes. In that sense, my conscience is clear and I will sleep well tonight."

Today, four years after the verdict and after the appearance of the Blekic brothers, Fahrudin Teftedarija is equally convinced that he gave a just verdict.

"The appearance of the Blekics and the fact that other people are indicted for the murder of Ramiz Kreso does not significantly change the degree of Damjanovic's guilt. If he didn't kill six people, he killed three, he committed rapes and expulsions. At the time he was judged guilty for crimes against civilians, war prisoners and for genocide. Even if he wasn't tried for the murder of the Blekics and Krso, but for all other crimes which haven't been questioned, he would have probably received a death penalty," says Teftedarija. "He is still guilty for all other crimes. In this case, the investigation and the trial should be repeated since the Blekic's showed up. But, I repeat, Damjanovic is still guilty of everything else. Besides, the Supreme Court has twice confirmed the death penalty. In other words, the case was reviewed by another ten judges after me! You see, Tadic is on trial in the Hague. His guilt will be proven and he will be convicted although bodies of his victims hadn't been found, nor is the identity of all of them known."

After all, it seems that the whole affair is much simpler than it is portrayed by the media, unofficial diplomatic circles, in politics, and especially by the enemies of Bosnia-Hercegovina. Naturally, the defense lawyers will try to use every formal and relevant inconsistency in the defense of their clients. That is not an unethical, but a highly professional approach. That will also be a trial for the Bosnian justice system. The appearance of the Blekics and the questionable nature of the Krso's murder only minimally reduce the huge mountain of Damjanovic's and Herak's crimes. If that is all, according to lawyers, the two of them will still get the death penalty in a repeated trial. That would be justice without formal legal mistakes. The basic problem in the case is the problem of the rating of the Bosnian judicial system and the independence of the investigative bodies. For example, such a case wouldn't be newsworthy in USA, England or France. On the contrary, many cases in USA do not end with a just verdict. As many as 80% of trials in USA end in plea bargain which does not satisfy justice, but satisfies the interests of the sides in the trial. Still, it seems that even unavoidable mistakes which arose due to the abnormal conditions in which the trial was conducted (during the trial Serb artillery shot at the Court building) are not allowed to the Bosnian judicial system.

Future Trials Without Politics and Weak Evidence

In the end, the trial will probably be repeated in order to satisfy legal norms. Our legal system and investigative bodies are actually at the start of the future trials against war criminals, both in Bosnia and abroad. It is especially important that our side provides strong evidence for the Hague tribunal. The trial to the concentration camp torturers from Batkovici camp is currently on in Tuzla and it demonstrates that that can be done. So many witnesses appeared in the court room in Tuzla and so much evidence was offered that the jury won't have any dilemmas when it needs to reach a verdict. In all other future trials, our side will have to offer more than any other legal system. That will be another means for pressure on Bosnia-Hercegovina. Because of that, the Bosnian side must focus in the future on the legal matters and exclude all pressures, current political needs, euphoria, and especially weak and false evidence which could ruin indictments. It is hard to claim that this was the case in "Damjanovic case", but it is highly possible.

Otherwise, it could turn out that after several ruined indictments certain Tadics, Heraks, and Damjanovics haven't killed anyone, that there were no concentration camps and, therefore, no genocide against Bosniaks!

"We are Alive, but no one has Looked for us"

Information that brothers Kasim and Asim Blekic were alive and currently living in the Sarajevo suburb Vogosca which were carried by domestic and foreign media these days again directed the attention of the domestic and foreign public to the trial of Herak and Damjanovic which took place in 1993. At the time Sretko Damjanovic was sentenced to death for the murder of the Blekic brothers. This fact is enough to demonstrate the superficial nature of the trial. In order to find out more, we visited Vogosca and the Blekic brothers. Reluctantly, they agreed to speak for Ljiljan. They are alive and kicking; during the aggression, together with their brother Himzo, they fought in the glorious First, Sehovic's brigade.

Chetniks Knew that we Were Alive

We talked with Asim Blekic in front of his house in Vogosca where he has lived together with his mother, wife and three children, since the reintegration of this territory in the wake of the Dayton Agreement. He was in a hurry, getting ready to leave to work. He works on the reconstruction of houses. Asim says:

"Others were killed, but it was said that me and my brother were the victims. That day, May 25, 1992, several local inhabitants of Vogosca and the surrounding villages were murdered. Everyone knew them. Kasim Krso, a.k.a. Ismet, Ramiz Krso, Ibrahim Krso, Ahmed Piknjac and Asim Mrso were killed at two o'clock in the afternoon. Their bodies were found some ten days later, partly mutilated, once the Chetniks allowed us to pick them up. I knew them. I hail from the neighboring village, Ugorsko; they were from the village of Krso. They defended their village and we defended ours. Chetniks knew all of us very well. The distance between our lines was very small. They called out our names and we responded. Therefore, after the massacre in the village of Krso, they knew that we were alive. I knew Damjanovic before the war. We worked together in a factory. We didn't have any direct contacts."

Did he know that Damjanovic was tried for his "murder"?

"I read about the indictment against Damjanovic in 1992 of 1993 in some Serb newspaper, maybe Novosti. I read my name and was aware that there was a mistake there. It said that I and my brother had been murdered, but the names of our alleged murderers weren't mentioned. I hadn't approached anyone because I read about the trial in a Serb paper and no one from our side had looked for me. Then, recently, a woman showed up. She introduced herself as Damjanovic's lawyer and as a translator when she visited with the International Police. I think there's something fishy there and I refused to talk about anything."

Now that he knows about the trial, why hasn't he reported somewhere that he is alive?

"If no one seems to care about that, why should I? The Police hasn't invited me for a questioning, no one has taken our statements nor showed any interest. Had I read about the trial in some our paper, maybe I would have stepped forward and corrected the mistake. This way, why should I?"

"I'm Going to the Military Court to Say I'm Alive"

Is he excited about everything that has recently happened?

"I only know that there is something fishy in that. Today, Serbs tried to take me to their television to say I'm alive. And they knew all the time I was alive. Ljiljan is the first paper for which I stated that."

Kasim was somewhat more cautious:

"Until recently no one cared and now everyone wants to make sure that I'm alive. Well, here I'm, judge for yourself. This week, I'm going to the Military court so that they can check."

Translated on 5/10/97