SUD BOSNE I HERCEGOVINE СУД БОСНЕ И ХЕРЦЕГОВИНЕ

Kraljice Jelene br. 88, 71 000 Sarajevo, Bosna i Hercegovina, Tel: 033 707 100, Faks: 033 707 225

Краљице Јелене бр. 88, 71 000 Сарајево, Босна и Херцеговина, Тел: 033 707 100, Факс: 033 707 225

Number: X-KŽ-07/474-1

Date:7 December 2010

The Panel of the Appellate Division composed of:

Judge Nedžad Popovac as the Presiding Judge

Judge Hilmo Vučinić as the Reporting Judge

Judge Dr. Miloš Babić as the Member

PROSECUTOR’S OFFICE OF BOSNIA AND HERZEGOVINA

vs.

GANI KOVAČI, MUSAIR ĐULIĆ AND BESIM SINANI

SECOND INSTANCE VERDICT

Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina:

Božo Mihajlović

Defense Counsels for the Accused, Attorneys:

Velimir Marić for the Accused Gani Kovači

Ramiz Aljić for the Accused Musair Đulić

Husein Mušić for the Accused Besim Sinani

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CONTENTS

INTRODUCTION……………………………………………………………………………

…..1

I. PROCEDURAL HISTORY ............................................................................................. 1

II. APPEALS ......................................................................................................................... 1

III. GENERAL ISSUES ....................................................................................................... 2

IV. ESSENTIAL VIOLATIONS OF THE CRIMINAL PROCEDURE......................... 2

A. APPEAL BY THE DEFENSE FOR THE FIRST ACCUSED KOVAČI .........................................3

B. APPEAL BY THE DEFENSE FOR THE SECOND ACCUSED ĐULIĆ........................................4

C. APPEAL BY THE DEFENSE FOR THE THIRD ACCUSED SINANI..........................................6

V. VIOLATIONS OF THE CRIMINAL CODE ............................................................... 6

A. APPEAL BY THE DEFENSE FOR THE SECOND ACCUSED ĐULIĆ........................................7

VI. INCORRECTLY AND INCOMPLETELY ESTABLISHED STATE OF FACTS. 8

A. APPEAL BY THE DEFENSE FOR THE FIRST ACCUSED KOVAČI .........................................8

B. APPEAL BY THE DEFENSE FOR THE SECOND ACCUSED ĐULIĆ.....................................15

C. APPEAL BY THE DEFENSE FOR THE THRID ACCUSED SINANI.......................................17

VII. APPEAL FROM THE DECISION ON THE LEGAL SANCTION...................... 18

A. APPEAL BY THE DEFENSE FOR THE FIRST ACCUSED KOVAČI ......................................18

B. APPEAL BY THE DEFENSE FOR THE SECOND ACCUSED ĐULIĆ.....................................19

C. APPEAL BY THE DEFENSE FOR THE THIRD ACCUSED SINANI.......................................20

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Number: X-KŽ-07/474-1

Sarajevo, 7 December 2010

IN THE NAME OF BOSNIA AND HERZEGOVINA

The Court of Bosnia and Herzegovina, in the Panel of the Appellate Division of Section II for Organized Crime, Economic Crimes and Corruption comprising Judge Nedžad Popovac as the President of the Panel, Judges Hilmo Vučinić and Miloš Babić as the Panel members, with the participation of Legal Advisor Dženana Deljkić – Blagojević as the Record-Taker, in the criminal case against the Accused Gani Kovači et al., for the criminal offence of Organized Crime in violation of Article 250(1) of the CC of BiH in conjunction with the criminal offence of Smuggling of Persons in violation of Article 189 and in conjunction with the criminal offence of Illicit Trafficking in Narcotic Drugs in violation of Article 195 of the CC of BiH, deciding upon the Appeals of the Defense for the Accused Gani Kovači, Attorney Velimir Marić from Tuzla, Defense for the Accused Musair Đulić, Ramiz Aljić, Attorney from Tuzla and the Defense for the Accused Besim Sinani, Husein Mušić, Attorney from Velika Kladuša, filed from the Verdict of the Court of Bosnia and Herzegovina, No. X-K-07/474-1 of 8 April 2010, following the open Panel session, in the presence of the Prosecutor of the Prosecutor’s Office of BiH, Božo Mihajlović, the Accused Gani Kovači, Musair Đulić and Besim Sinani, as well as the Defense for the Accused, Attorneys Velimir Marić, Ramiz Aljić and Husein Mušić, pursuant to Article 310(1) in conjunction with Article 313 of the Criminal Procedure Code of Bosnia and Herzegovina (“the CPC of BiH”) on 7 December 2010 rendered the following

VERDICT

The Appeals of the Defense for the Accused Gani Kovači, Musair Đulić and Besim Sinani are hereby refused us unfounded, and the Verdict of the Court of Bosnia and Herzegovina No. X-K-07/474 – 1 of 8 April 2010, is upheld.

R e a s o n i n g

I. PROCEDURAL HISTORY 1. By the Verdict of the Court of Bosnia and Herzegovina, No. X-K-07/474 – 1, of 8 April 2010, the Accused Gani Kovači, Musair Đulić and Besim Sinani were found guilty of committing the criminal offense of Organized Crime in violation of Article 250(1) of the CC of BiH, in conjunction with the criminal offense of Smuggling of Persons in violation of Article189 and the criminal offence of Illicit Trafficking in Narcotic Drugs in violation of Article 195 of the CC of BiH, for which criminal offenses the Court sentenced the Accused as follows: the Accused Gani Kovači, for the offenses described under Sections 1, 7, 8, 9, 10 and 11 of the Operative Part of the Verdict, to imprisonment for a term of eight years, the Accused Musair Đulić, for the offenses described under Sections 1, 2, 3, 4, 5, 6 and 11 of the Operative Part of the Verdict to imprisonment for a term of four years and the Accused Besim Sinani, for the offenses described under Sections 2 and 4 of the Operative Part of the Verdict, to imprisonment for a term of two years.

II. APPEALS

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2. The Appeals from the Verdict have been filed by the Defense for the Accused Gani Kovači, Attorney Velimir Marić, the Defense for the Accused Besim Sinani, Attorney Husein Mušić, and the Defense for the Accused Musair Đulić, Attorney Ramiz Aljić who has also filed the supplement to the Appeal. They challenge the contested Verdict on the grounds of essential violations of the criminal procedure provisions, incorrectly and incompletely established state of facts and the decision on legal sanction, moving the Panel of the Appellate Division to grant the Appeals, revoke the Trial Verdict and remand the case for a new trial or to grant the Appeals and revise the Verdict or to pronounce considerably shorter prison terms. 3. Reviewing the admissibility and timeliness of the filed Appeals, the Appellate Panel finds that they are admissible and filed in timely manner. 4. On 3 December 2010, the Defense for the Accused Musair Đulić filed its submission explaining the Appeal. However, the Appellate Panel shall confine the review of the Verdict only to the Appeal filed in a timely manner and the Supplement thereof, and it shall not review the additional submission of the Defense for the Accused given that it was filed beyond the statutory time frame prescribed for appeal. 5. Having reviewed the contested Verdict within the limits of all the appeal submissions, pursuant to Article 306 of the CPC of BiH, the Appellate Panel rendered the Decision as stated in the Operative Part for the following reasons::

III. GENERAL ISSUES

6. Prior to explaining each appeal submission, the Appellate Panel points out that the Appellant is bound to, pursuant to Article 295(1)b) and c) of the CPC of BiH, include in the Appeal both the legal grounds for contesting the Verdict and the reasoning behind the relevant appeal submission. 7. Given that, pursuant to Article 306 of the CPC of BiH, the Appellate Panel shall review the Verdict only within the limits of the appeal submissions, the Appellant is bound to draw up the Appeal so that it can be used as the basis for reviewing the Verdict. In this respect, the Appellant shall specify the appeal grounds for contesting the Verdict, note which part of the Verdict, the piece of evidence or the action of the Court are being contested, also stating clearly and with valid arguments the explanation supporting the relevant appeal submission. 8. Solely arbitrary indication of the appeal grounds as well as pointing to the alleged irregularities in the course of the first instance proceedings without specifying the ground for appeal referred to by the Appellant is not a valid basis for reviewing the Trial Verdict, due to which the Appellate Panel shall prima facie refuse as unfounded the unsubstantiated and unclear appeal submissions.

IV. ESSENTIAL VIOLATIONS OF THE CRIMINAL PROCEDURE 9. Essential violations of the criminal procedure provisions, as a ground for appeal, are set out in Article 297 of the CPC of BiH, and they are specified in Sub-paragraphs a) through k) of Paragraph 1. 10. Due to the gravity and importance of the committed violations of criminal procedure, the CPC of BiH differs between the violations which, if established as existent, generate an indisputable assumption that they negatively affected the validity of the pronounced verdict (absolutely essential violations) and the violations with respect to which, in each particular case, it

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is left to the Court to evaluate whether the established violation of the procedure affected or could have affected the validity of the verdict (relatively essential violations) 11. Unlike the absolute violations, the relatively essential violations are not specified in the law, but they exist if the Court has not applied or has improperly applied some provisions of this Code during the main trial or in rendering the verdict, and this affected or could have affected the rendering of a lawful and powerful verdict (Article 297(2) of the CPC of BiH). 12. In case that the Panel establishes that there exist any of the essential violations of the criminal procedure provisions, it shall revoke the trial verdict, pursuant to Article 315(1) a) of the CPC of BiH. .

A. APPEAL BY THE DEFENSE FOR THE FIRST ACCUSED KOVAČI

13. Pursuant to Article 297(1)k) of the CPC of BiH, an essential violation exists if inter alia the wording of the verdict contradicted the grounds of the verdict. 14. The Defense finds that the Operative Part of the Verdict contradicts the grounds of the Verdict. The reason for the above mentioned is because Section 10 of the Operative Part of the Verdict reads that on 13/14 April 2008, Damir Fazlagić, Ikica and the Accused Radivoje Mrkajić illegally transferred three migrants from Montenegro to Mostar, and that Damir Fazlagić placed the migrants in a bed and breakfast inn until the Accused Kovači organized the transfer of the migrants to the Republic of Croatia. However, it is mentioned under Section 6.1.4. of the Reasoning of the Verdict that the action described under Section 10 of the Operative Part occurred on 13/14 March 2008. Therefore, the Defense argues that it has not been established when the relevant criminal offense occurred. 15. The Defense, on the same grounds, also points to Section 1 of the Verdict where it is mentioned that Zejid Šabić organized the transfer of migrants to Velika Kladuša and as a result Selmin Kovač, Nešad Malkić, Hamid Sadiković and Dalibor Štrbac transported the migrants by their own vehicles to the Purići settlement. It is mentioned under Section 6.3.1. of the Reasoning of the Verdict that Gani Kovači provided the transport of this group to Velika Kladuša in as much as he engaged Selmin Kovač. 16. The Appellate Panel finds both appeal submissions unfounded. Section 1 of the Operative Part of the Verdict has found that the Accused Kovači organized the transfer of migrants to Velika Kladuša in concert with Musair Đulić, Zejid Šabić and other persons, in which process the Accused, among other things, paid a portion of the agreed cash to Selmin Kovač. 17. In the Reasoning of the Verdict, the Trial Court gives its argumentation concerning the participation of the Accused in this offense, specifically that the Accused was the organizer of the transfer of migrants in which process he gave a portion of money to Selmin Kovač. The fact that the Reasoning of the Verdict uses words ” he engaged Selmin Kovač“, which are not used in the Operative Part of the Verdict, does not have any relevance. The Trail Court has used these words as an explanation of the actions carried out by the Accused, which constitute the elements of the criminal offence of Smuggling of Persons. In this connection, it is important that these actions (organizing the transfer of the migrants and giving the portion of cash) are mentioned both in the Operative Part and in the Reasoning.

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18. Furthermore, the discrepancy between Section 10 of the Operative Part and the Reasoning with regard to the month in which the incriminating action occurred does not have any specific value when the culpability of the Accused is involved. In this particular case, it is simply negligence and an error that occurred during the preparation of the Verdict. Such error is not a result of any incorrect findings, neither can this error be considered as such concerning the existing reasons. 19. The Defense also points to the discrepancies in Section 9 of the Operative Part of the Verdict where it is mentioned that Zijo received an instruction from the organizers to send the migrants on a bus to Sarajevo, while it is mentioned under Section 6.1.3. of the Reasoning that undercover investigator Fazlagić was instructed by the Accused Kovači to send the migrants by bus to Sarajevo. 20. However, this appeal submission is also unfounded. The Verdict has already determined the role and the degree of involvement of the Accused in the activity of the group for organized crime whose purpose was to smuggle persons via the territory of BiH. It is clear that Kovači was exactly the organizer and the chief, so the fact that he is qualified by the Verdict as the organizer and named in person in the Reasoning does not suggest the contradictory feature that might be considered to constitute an essential violation in terms of Article 297 of the CPC of BiH. The Appellate Panel considers that the fact has been only additionally elaborated and explained in the Reasoning, and therefore this appeal submission cannot be considered founded.

B. APPEAL BY THE DEFENSE FOR THE SECOND ACCUSED ĐULIĆ

21. The Defense predominantly points to the violation of Article 251(2) of the CPC of BiH given that more than a month passed between the hearings held on 17 April 2009 and 19 May 2009, the hearings held on 17 September 2009 and 22 October 2009 as well as the hearings held on 20 November 2009 and 28 December 2009. The Defense argues that a joint agreement of the parties and Counsels was not sufficient for missing the deadline, as it is unclearly stated by the Court, but separate agreements were required. Also, the Defense argues that even in case that the parties had given their agreements the Trial Panel would have been obliged to present all the evidence once again. The Defense is of the opinion that, having acted in this manner, the Court committed an absolutely essential violation of the criminal procedure provisions under Article 297(1)d) of the CPC of BiH. 22. The assertions of the Defense for the Accused Musair Đulić that more than 30 days elapsed between 17 April 2009 and 19 May 2009 are not correct. Specifically, having examined the case records, the Panel concluded that the main trial resumption was held on 24 April 2009 and that witnesses Fadil Aličić, Jurica Mijatović, Samira Tanović and Adis Hamzić were heard on that occasion. 23. At the hearing held on 17 September 2009, the parties and the Defense reached an agreement to exceed the deadline of 30 days and that the next hearing be held on 22 October 2009. The Defense insists that each one of them should have been separately asked to give his consent, however such assertion is not based on the law or jurisprudence, thus the consent given by all those that were present was quite valid, particularly when each of the parties had opportunity to submit objection if it had a good reason for that, which the defense definitely failed to do. 24. Concerning the third hearing, it is true that no consent to exceed the deadline of 30 days was requested, but given that an amendment of the Indictment was announced at the hearing held on 20 November 2009, the Trial Court, having scheduled the hearing for 28 December 2009, gave sufficient time to the Defense to prepare the defense case under the Amended Indictment, which

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was amended on 10 December 2009. The trial resumed before the same Panel members as well as all the parties in the proceedings before whom all the evidence was presented. The Appellate Panel finds that such exceeding the deadline of 30 days resulted in the relative violation of the procedure but that it was not of the nature that affected the lawfulness and correctness of the Verdict. According to the Appellate Panel, the purpose of scheduling the hearings in the intervals of 30 days is to secure the right of the Accused to a trial within a reasonable period of time in order to prevent any negligence on the part of the responsible Panel with regard to due and proper scheduling and holding of hearings. The purpose of this provision is not to compel the Trial Panel to repeat the entire evidentiary procedure under the circumstances in which the trial was regularly held within the statutory time-frames and slowed down at certain point to secure better preparation of defense. Such outcome would contradict the essence of the provision whose purpose is a proper and timely conduct of the proceedings. 25. The Defense also argues in the Appeal that the Verdict does not contain legal remedy, which has resulted in violation of the right of its client to an efficient legal remedy. 26. In this respect, the Appellate Panel points out that the Verdict does not formally contain the legal remedy provision and that the lack of it is an obvious error that occurred during preparation of the Verdict, and that such violation can be considered as a relative violation of the procedure in terms (translator’s note: as in the original); however Article 292 of the CPC of BiH stipulates the possibility to file an appeal from the verdict rendered in the first instance proceedings and an omission of the legal remedy as an integral part of the Verdict does not mean that the Accused does not have right to appeal. In any case, the Defense used this opportunity filing the Appeal from the above mentioned Verdict on behalf of its client, which was exactly the subject of the appellate proceedings before this Appellate Panel. Pursuant to the aforementioned, this Defense appeal submission is refused as unfounded. 27. The Defense holds that the Court has obviously violated the methodological approach when considering the decisive facts stipulated in Article 14 of the CPC of BiH given that it has not considered and established with equal attention the facts that are in favor of or detrimental to the Accused Đulić. 28. This appeal submission of the Defense is not founded either. The Trial Verdict dealt with the evaluation of all the presented evidence, both of the Prosecution and of the Defense, which is described in Section 5 of the Verdict. In this process, the Verdict was only based on the evidence considered relevant for rendering the decision so that it offered the argumentation with regard to the facts being of substantial importance for the decision. The Trial Verdict found the ground for such acting in Article 15 of the CPC BiH, and such acting of the Trial Court is quite lawful and justified. 29. The Defense holds that Article 227(1)e) of the CPC of BiH is also violated as the Court has accepted the Amended Indictment that is not formally and legally sustainable and does not satisfy the criteria of the aforementioned Article. Pursuant to the above mentioned, in the course of the proceedings, the Accused duly proposed that the proceedings be suspended without any further delay. As a result of failure to act upon that proposal, the Defense holds that the constitutional right of the Accused to a fair trial in terms of Article II 3 a) of the Constitution of BiH and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms has been violated. 30. Having reviewd the case records it has been established that on 10 December 2009, the Prosecutor on the case filed the Amended Indictment in this case. The amendment of the Indictment resulted from the previously concluded plea agreements of the other Accused who were included in a single Indictment, while the factual description of the Indictment wherefrom the legal elements of

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the criminal offense ensued, was adjusted to a new situation. Given that the single Indictment of 9 September 2008 contained all the elements stipulated in Article 227 of the CPC of BiH, it was not necessary for the Amended Indictment to, in addition to the factual description of the offense and the legal title of the criminal offense, also contain other elements of indictment (proposal of evidence to be presented, results of investigation and evidence corroborating the charges), as they are identical elements to those contained in the single Indictment. Therefore, this appeal submission is refused as unfounded. 31. The Defense also points to the violation of Article 297(1)k) of the CPC of BiH as the page numbers of the contested Verdict are not inserted so that deficiency of the Verdict cannot be reviewed. 32. The Appellate Panel finds this appeal submission unfounded. The issue of document editing and formatting does not in any case fall within the violations stipulated in Article 297, and the Panel will not deal with this appeal submission anymore. The Verdict was delivered to the Defense for the Accused in its entirity and no obstacle stood in the way of its analysis by the Defense.

C. APPEAL BY THE DEFENSE FOR THE THIRD ACCUSED SINANI

33. The Defense for the third Accused Sinani argues that the Court, based on the evidence or information given by undercover investigators and witness Adis Hamzić, has concluded that the Accused took part in the acts of commission of the criminal offence described in the Verdict. The Defense holds that the Court has essentially violated the criminal procedure provisions under Article 297(1)i) and k) of the CPC of BiH, resulting in the Operative Part of the Verdict that is incomprehensible and does not contain the grounds for decisive facts that the Verdict is based on. The Defense argues that Counts 2 and 5 of the Amended Indictment, the factual description of which has been fully accepted by the Court in its Verdict, are unclear and incomprehensible. The acts of commission of the criminal offense by the Accused Besim Sinani are not precisely described and concretized so it is not clear what he was sentenced for. 34. The Appellate Panel has not found this Defense appeal submission founded. The acts of the Accused Sinani are clearly described under Sections 2 and 5 of the Verdict, showing that the Accused Sinani was one of the three chief members of the criminal organization in BiH alongside with the Accused Musair Đulić and Gani Kovači and that he contributed in as much as he arranged with the persons from the territory of Montenegro and BiH known to him the transfer of 11 migrants from Montenegro across BiH to the Republic of Croatia, and the Accused was responsible for the actual transfer of the migrants from Mostar to Velika Kladuša.

35. Also, the acts of the Accused or the evidence that the decisive facts are based on, which served as the basis for the Trial Court to establish the culpability for the Accused, are described under Section 6.4 of the Verdict; these grounds are accepted by the Appellate Panel finding the reasoning to be fully clear and convincing. The pieces of evidence are clearly correlated, logical and do not leave any room for doubt concerning the complicity of the Accused. The appeal submission that the Verdict is based on the evidence, which, pursuant to the provisions of the CPC of BiH, the verdict cannot be based on, has only remained an assertion of the Defense without any factual and legal arguments, and it could have not been reviewed by the Appellate Panel.

V. VIOLATIONS OF THE CRIMINAL CODE 36. Violations of the Criminal Code constitute another ground for appeal and they are stipulated in Article 298 a) through f) of the CPC BiH.

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A. APPEAL BY THE DEFENSE FOR THE SECOND ACCUSED ĐULIĆ

37. The Defense for the Accused Musair Đulić argues that Musair Đulić did not do anything contrary to the CC of BiH, which would constitute the incriminating acts he is charged with. Therefore, the Defense holds that the Court violated the Criminal Code when finding that all essential elements of the criminal offense were satisfied in the acts that the Accused Đulić were charged with. 38. However, the Appellate Panel does not find this appeal submission founded. The elements of the criminal offense incriminating the Accused are described under Section 6 of the Verdict in detail. Based on the aforementioned, it is clear that the Accused was a member of the criminal organization, the key contact (besides Zejid Šabić) of the Accused Kovači for the takeover and transfer of migrants in the territory of BiH through his further contacts that are mentioned in detail in the Verdict. 39. In addition, the Accused Đulić was, beyond a doubt, a member of the criminal group and he, as the member, sold and interceded in narcotic drug marijuana trading and made arrangements for the transfer of illegal migrants to BiH, their accommodation and further transfer to the Republic of Croatia. 40. All the elements of the the above mentioned criminal offenses are exactly satisfied in these actions. All these actions the Accused is found guilty of are described in detail in the sections of the Operative Part. According to the evaluation of this Panel, the Trial Court has correctly found that the elements of these criminal offenses he is found guilty of are satisfied in all those actions. 41. The Defense for the Accused Đulić argues in the Appeal that the contested Verdict has a deficiency related to meting out the individual punishment as well as the compound punishment for each criminal offense that the Accused Musair Đulić allegedly committed. 42. In this respect, the Appellate Panel notes that the Accused was charged with the criminal offense of Organized Crime in conjunction with the criminal offenses of Smuggling of Persons and Illicit Trafficking in Narcotic Drugs. He was charged with the commission of the criminal offenses of Smuggling of Persons and Illicit Trafficking in Narcotic Drugs as the member of the criminal organization. This is by nature an offense of Organized Crime given that a organized criminal group is an organized group of people comprising at least three persons, existing for a certain period of time and acting with an aim to commit one or several criminal offenses that, pursuant to the law, carry imprisonment for a term of three years or more severe punishment.1 In this particular case, it has been, beyond a doubt, established that the Accused Đulić committed the criminal offenses of smuggling and trafficking in narcotic drugs as one of the three members of the criminal organization, and such acts cannot be treated as two separate offenses. From the point of view of the procedural situation of the Accused, it is also more favorable to treat these acts as a single criminal offense. 43. In addition, the submission of the Defense that the Court has not correctly imposed the sanction and that it should have meted out a separate punishment for each of these offenses and sentence his client to a compound punishment is unfounded as we deal with a single criminal offense. The Appellate Panel notes that this submission of the Defense is not in any case the

1 Law on Amendments to the CC of BiH („Official Gazette of BiH“ No. 08/10), Article 108, notion „group for organized crime“ is used instead of notion „organized criminal group“.

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submission that is in the interest of his client, as in case of existence of several offenses and meting out the punishment for each one of them separately, the Court would sentence the Accused to a more severe punishment than the one he is sentenced to in this particular case.

VI. INCORRECTLY AND INCOMPLETELY ESTABLISHED STATE OF FACTS 44. The Trial Verdict may be contested on the grounds of the incorrectly or incompletely established state of facts, which is stipulated in Article 299 of the CPC of BiH.

A. APPEAL BY THE DEFENSE FOR THE FIRST ACCUSED KOVAČI

45. Concerning the Appeal by the Defense for the Accused Kovači that deals with the issue of correctness of the established state of facts, the Defense argues that the conclusion of the Court that the Accused Gani Kovači was the key link in the network for smuggling of persons to the Western European countries is incorrect as the Prosecution did not present any piece of evidence proving the above mentioned fact, and none of the heard witnesses corroborated the above mentioned. This state of facts was not corroborated by the undercover investigators, the officials of SIPA and the Border Police either, and nobody mentioned Gani Kovači. 46. However, according to the opinion of the Appellate Panel, all the presented evidence and the facts discovered by the evidence with respect to the Accused Kovači exactly give rise to a clear fact that the Accused Gani Kovači was the head of the group for organized crime whose objective was the illegal transfer of individuals from Albania to Italy. He was an important link in the network and was responsible for coordination of the activities carried out by the persons in the field and payments made to them; but above all, he was the man in charge of the communication with the persons in Montenegro through whom the smuggled persons were arriving in BiH, where, according to the previously made arrangements, the persons in the field took them over and transported to the designated places. 47. Generally, the Verdict is fully based on the testimonies of the undercover investigators that acted pursuant to the Order of the Court of BiH on carrying out the special investigation activities, as well as their reports and recordings, which were made during such activities. Their testimonies and reports are thorough and clear and it is doubtless that an unmistakable conclusion about the complicity of all the originally accused persons in this case could be made based on the facts presented by them in the course of the proceedings. 48. Furthermore, the Verdict is also based on the testimonies of the co-accused in this case that, in the course of the proceedings, entered the plea agreements with the Prosecution and testified both about their own participation in these offenses and of the other Accused. The testimonies of these witnesses are fully consistent with the testimonies of the undercover investigators. The Trial Court has correctly referred to these testimonies as credible and reliable and this Panel has fully agreed with its conclusions regarding the responsibility. 49. The Defense was contesting the testimonies of this category of witnesses being guided by the assumption that those parsons could not be trusted as they entered the plea agreements for the same offenses that these three persons from the contested Verdict were charged with. 50. The Appellate Panel has considered this appeal submission from the point of view of fairness, specifically whether and to what degree it is correct to refer to the testimonies of the

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persons that are the co-accused for the same criminal offenses, which shall be argumented in the continuation regarding the individual submissions of the Defense for the Accused Kovači. 51. Section 1 of the contested Verdict is based inter alia on the testimony of Adis Hamzić, one of the persons convicted for the criminal offense concerning the charges against the Accused Gani Kovači with respect to which he entered the plea agreement on 2 December 2008. In the Operative Part, this witness is charged with making arrangements with the Accused Kovači and Đulić that he will together with Đulić, organize the transfer of migrants from Montenegro to BiH and Mostar for the agreed amount of money. The Defense argues that the testimony of Selmin Kovač is not credible either; he said that he received KM 300.00 from the Accused for transportation of the migrants from Mostar to Velika Kladuša as the Accused gave money as a borrowing to Zeid Šabić. 52. The Appellate Panel finds that the Trial Court has correctly established the facts here and that the appeal submission concerning the testimony of this witness and the facts described by this witness is not founded. Specifically, witness Selmin Kovač, concerning the offenses described under Section 1 of the Operative Part, was precise with respect to all the involved persons, thus confirming their responsibility. Also, the witness stated that he made the arrangements for the transfer of the migrants from Mostar to Velika Kladuša with a certain Brko with whom he established connection by way of the person nicknamed Bobo; in the continuation of his testimony, the witness identified and recognized in the courtroom the person nicknamed Brko as the Accused Kovači. 53. As for the appeal submission concerning the paid amount of KM 300.00 for which the Defense claims that it was not delivered by the Accused Kovači, the witness is explicit that he received the amount of KM 300.00 or Euros (he does not remember precisely) from the Accused Kovači in the a toilet of a petrol station outside Mostar. 54. The remaining testimony of this witness is fully consistent with the findings of the Trial Verdict. During his testimony the witness recalled, clearly and without lack of logic, the manner in which he himself was engaged in the activities in the network of smuggling of persons, describing his specific task and the tasks of other persons that he hired to carry out those activities. 55. The witness described that he drove a ”tour” (group) of 10 migrants from Mostar to Velika Kladuša alongside with three more persons mentioned in the Operative Part, and that they came in three cars, that he contacted Zeko (Zejid Šabić) near Kladuša, who was responsible for the takeover of the migrants and their accommodation and further transport to the Republic of Croatia. 56. The appeal submission of the Defense concerning the quality and credibility of the testimony of this witness is unfounded so that the Appellate Panel has fully accepted the testimony of this witness as the testimony on which part of the conclusion of the Trial Panel about the responsibility of the Accused Kovači for Section 1 of the Operative Part of the Verdict can be based. 57. As for the testimony of Adis Hamzić, in addition to the confession of this person concerning his involvement in the criminal offenses, as found by the contested Verdict, with respect to which he entered the plea agreement with the Prosecution, the agreement of which was being contested by the Defense only for the reason that it was made with regard to the offense the Accused Kovači was charged with, the Appellate Panel points out the following:

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58. The principle of free evaluation of evidence that is stipulated in Article 15 of the CPC of BiH does not leave room for any dilemma as to whether such testimony can be used in criminal proceedings.2 The manner in which the Court has to consider such evidence is far more important issue. Which legal issue does the Panel have to consider when evaluating such evidence? At the same time, in which manner and in compliance with the law, may the Panel use or not use such evidence?? 59. A basic obligation of the Panel concerning all the evidence is stipulated in Article 281(2) of the CPC of BiH, which reads: “The Court is obligated to conscientiously evaluate every item of evidence and its correspondence with the rest of the evidence and, based on such evaluation, to conclude whether that fact(s) have been proved.” As it is found by the Constitutional Court, this basic obligation follows from the right of the accused to a fair trial that is guaranteed to him by Article II(3) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention on Human Rights (European Convention).3 60. The Constitutional Court has given its interpretation that the same criteria shall be applied, neither more severe nor more lenient ones, to the evidence presented by a witness that testifies after making a plea agreement or after being granted immunity. Simply, the assumption of reliability of unreliability shall not be applied to the evidence presented by the witness that testifies after making a plea agreement or after being granted immunity. The best thing is to cite in full this conclusion of the Constitutional Court: 61. „ However when obtaining evidence in such manner (by plea agreement), that is when providing testimonies by exercise of this institute in a country with continental criminal legislation, as Bosnia and Herzegovina, it is necessary to apply other, fundamental principles of the criminal legislation to such kind of evidence as solicit and conscientious evaluation of evidence in isolation and in connection with each other and principle in dubio pro reo. As already stated, by applying the principle of free evaluation of evidence the courts cannot a priori attach greater value to such an evidence because it was obtained on the basis of agreement of confession for his guilt concluded with witness who was previously accused for the same offense. On the contrary, the courts have to evaluate this evidence in the same manner and based on the same rules prescribed under the Law for any other presented evidence, i.e. in isolation and in connection with other evidence, and bring all presented evidence in logical relation..4“ 62. Based on the facts available in these proceedings, the Constitutional Court has predominantly dealt with what seems to have been the assumption of the Basic Court, specifically, that the evidence obtained in this manner was considered more reliable than other testimonies. However, the Constitutional Court has found that such assumptions are not permitted by the Law. 63. The Constitutional Court has explicitly refused any idea that the evidence given by the witnesses that testify after making plea agreement or after being granted immunity is considered unreliable, that it should not be taken into account or that it should be subjected to considerably more detailed analysis than other pieces of evidence. The Constitutional Court has also found the following: “As to the testimony of the mentioned witness (that testified after making a plea agreement), even though such witnesses may often be unreliable, it in itself is not a reason not to

2 See M.Š, AP-661/04 (Constitutional Court of BiH), Decision on Admisibility and Merits, 22 April 2005. 3 Id., para. 30. See also the Case of Branka Kolar-Mijatović, AP-1262/06 (Constitutional Court of BiH), Decision on Admissibility and Merits, 23 December 2007, paras. 36-37; Hazim Vikalo, AP-3189/06 (Constitutional Court of BiH), Decision on Admissibility and Merits, 23 May 2007, paras. 35-36. 4 M.Š., Decision, para. 38 (additionally pointed out).

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have faith in the statement of such witness.“”5 The Panel by all means has to consider all the facts influencing the witness reliability when analyzing his testimony and act with precaution. However, the Panel has to act in the very same manner when considering any testimony.6 64. The Constitutional Court has implicitly pointed to the manner in which the evidence presented by the witness that testifies after making a plea agreement or after being granted immunity can be used. In the above mentioned court proceedings that were reviewed by the Constitutional Court, the Basic Court based its conclusion, to a decisive degree, on the testimony of the witness that made a plea agreement. The testimony of this witness was the only evidence to prove that the Appellant committed the criminal offense he was charged with. The remaining evidence corroborated this testimony but such circumstantial evidence did not refer to the key facts which the Verdict was based on.7 65. However, the Constitutional Court has only concluded that the Basic Court did not completely and with due attention consider all the evidence and give adequate explanation, which suggests that the Basic Court convicted the Appellant based on arbitrary assessments, resulting in violation of the right of the Appellant to a fair trial. The Constitutional Court has not taken the position that the right to a fair trial was violated by the fact that decisive evidence was secured by the testimony of the witness that made a plea agreement or was granted immunity. Such position is in accordance with the jurisprudence of the European Court of Human Rights, pointing out that the evidence obtained by testimony of the witness that the Accused cannot be confronted with cannot have a decisive weight. Such testimony may be decisive only if the Accused can be confronted with the witness that testifies after making a plea agreement or after being granted immunity. 66. In this respect, the position of the Appellate Panel is that such witness should testify directly before the Accused and the Accused should have a possibility to contest such testimony, which, pursuant to the previously presented position, can be decisive for the responsibility of the Accused. Therefore, this witness testified directly in the courtroom on 24 April 2009 whereby one of the basic principles of a fair trial was fulfilled, specifically that all the evidence incriminating the Accused should be presented in the presence of the Accused. 67. Secondly, the Accused and his Defense were given the opportunity to contest this testimony and to cross examine this wetness. 68. In addition, the testimony that this witness gave concerning his involvement in the network of smuggling of persons via the territory of BiH is fully consistent with the testimonies of Selmin Kovač and Zejid Šabić with whom this witness had a constant contact and who was the person that acted on behalf of the Accused Kovači. 69. Based on the aforementioned, there is no room for a dilemma that the Accused Gani Kovači is responsible for the findings under Section 1 in the manner as described in the contested Verdict, and this Defense submission is refused as unfounded. 70. The Defense further stated that Zejid Šabić testified that the Accused organized the transfer of the migrants to Mostar, but he did not precisely separate similar actions from 2003 that Kovači had been already convicted for. 5 Id., stav 37 (emphasis added). 6 See the case against Abduladhima Maktoufa, KPŽ-32/05 (The Court of BiH), Appeal Verdict, 4 April 2006. 7 Id., paras. 7 and 9.

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71. Concerning the testimony of witness Zejid Šabić, the witnesses that testified concerning the other Counts of the Indictment mentioned a certain Zeko as the person responsible for the takeover of the migrants in Velika Kladuša whom the Accused Kovači used to send from Mostar; according to the pre-arrangements with Jaro, he organized their takeover and accommodation in hideouts (rooming house) in Velika Kladuša, and the transfer of those individuals to the Republic of Croatia, if it was later arranged. 72. Witness Šabić himself is one of the persons that made a plea agreement with the Prosecution on 4 November 2009. This witness confirmed and described the manner in which he cooperated with the Accused Kovači, including their contacts and agreed prices per migrant. Also, the testimony of this witness is corroborated by the testimony of witness Selmin Kovač about whom he said that he drove over to him “a tour” (a group) of people. The witness also stated that he reluctantly cooperated with Gani as he was not a good ”payer” for delivered services that he carried out for him in order to earn some money. This statement is consistent with the statement of witness Kovač who said that it was difficult to collect money from Kovači for ”the tour” of ten people. 73. Witness Šabić clearly described the manner in which the cooperation with the Accused Gani was carried out, particularly in the period that, as he stated, lasted for 3-4 years since he first met him in 2002. Thus,, any possibility that the witness described the actions from 2003 that the Accused Kovači was previously convicted for is excluded, thus the appeal submission of the Defense is also unfounded in this respect. 74. Furthermore, in the Appeal, the Defense also points to Section 7 of the Verdict. The Appeal submits that on 20 February 2008, the Accused transferred 6 migrants from the Republic of Montenegro to BiH in an unidentified manner, and transferred them further to Mostar in an unidentified manner. Based on the above mentioned, the Defense argues that the relevant facts are not established. Based on the same grounds, the Defense considers that the facts under Section 8 of the Operative Part are also not established. 75. The appeal submission pointed to by the Defense concerning these two Sections is unfounded. 76. The contested Verdict in both Sections is based on the testimonies of the witnesses listed in the Reasoning, and according to the position of the Appellate Panel, the Trial Court has correctly evaluated these testimonies finding that they secure sufficient grounds to establish the responsibility of the Accused Kovači beyond any reasonable doubt. 77. The testimony of Zejid Šabić is essential for establishing the responsibility of the Accused Kovači under these two Sections. Witness Šabić testified and described how and who introduced him to the Accused Kovači who, immediately upon getting acquainted, offered him to work on the illegal transfer of persons. According to his testimony, as well as the testimonies and reports of the undercover investigators, he was a direct collaborator of the Accused Kovači and responsible for the takeover of individuals in Velika Kladuša or their further transfer to the Republic of Croatia; he also said that he made arrangements for all the activities with Kovači. 78. The Trial Panel has based the findings with respect to Section 7 on the testimonies of undercover investigators Juka and Cole. Their testimonies are corroborated with the testimonies of the members of State Border Police: Rejhan Raković, Fuad Šahinović, Emir Pahlić who conducted the investigation into the criminal offenses of smuggling of persons and took part in locating and capturing of the group that was transporting the migrants from Mostar to Kladuša in February 2008. The testimonies are also corroborated with material documentation, police reports and reports on search of persons.

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79. Section 7 of the Trial Verdict is corroborated with the testimonies of witnesses – brothers Atif and Damir Karajić that confirmed the testimony of witness Šabić concerning the accommodation of four foreigners under Section 8. According to their testimonies, Atif and Damir were directly contacted by witness Šabić requesting from them to accommodate that group in the house of Damir Karajić until their being taken across the border, as no other adequate accommodation was available and the house of Damir Karajić was 20 m from the border line. 80. These two witnesses described how they made contact with Zejid Šabić, that Šabić promised Atif Karajić (sic.) in case that he managed to accommodate the individuals and organize their transfer to Pašin Potok in the Republic of Croatia where they should have been taken over if the police had not discovered them. The testimony of witness Atif Karajić is corroborated by witness Damir Karajić who testified that his brother Atif contacted him and gave him his cell phone by means of which he was contacted by Zejid Šabić who asked him to accommodate the migrants in his house, which he did, and the agreed price for that was Euro 80.00. 81. Furthermore, concerning the appeal submissions under Sections 7 and 8 of the Operative Part of the contested Verdict, the Defense argued that the relevant facts were not established as the manner in which the Accused transferred the migrants to Mostar was not described. 82. Concerning this appeal submission, the Appellate Panel points out that Article 189 of the CC of BiH stipulates which acts constitute the essential elements of Smuggling of Persons. This criminal offense inter alia includes transfer of illegal migrants or enabling illegal crossing of the state border. In this process the manner of crossing the border is not essential for the existence of this criminal offense; it is essential that there exists an illegal entry across the state border, that is, illegal crossing the border. In this particular case, the presented evidence has undoubtedly established the culpability of the Accused for the transfer of the migrants from the Republic of Montenegro to Bosnia and Herzegovina at the place not designated as a state border crossing point, their accommodation in Mostar and the transfer to Velika Kladuša and further to Zagreb. 83. The Trial Panel referred to the testimonies of the witnesses that corroborated that the Accused Kovači was a main link in the network of smuggling of persons, which was operating from Albania and Kosovo via BiH and Croatia to Italy. The conclusion made by the Trial Panel in this respect is correct as all the presented Prosecution evidence pointed to the Accused Kovači as the main organizer of smuggling of persons via BiH. The reports of the undercover investigators, in addition to their testimonies as well as the testimonies of other witnesses- members of the State Border Police of BiH, the co-accused and the migrants themselves whose statements were read out at the main trial pointed to an unquestionable involvement of the Accused in the criminal offenses in the manner established in the contested Verdict. In addition, all acts of smuggling occurred by established pattern with participation of the persons that were already familiar with the procedure and their individual tasks. Therefore, the Defense appeal submission is not founded in this respect either. 84. Furthermore, the Appeal also points out to Section 9 of the Verdict where the Defense argues that the Court has not found that the Accused is in any way connected with the acts from the above mentioned Section. 85. Concerning this appeal submission, the Appellate Panel points out that the Operative Part of the Verdict in Section 9 is based mostly on the testimony of witness – undercover investigator Zijo and his report. The Appellate Panel is satisfied that his testimony is detailed and convincing in terms of describing the facts and details about the investigative actions that he carried out.

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86. This witness acted in his capacity of undercover investigator; he was fully integrated in the operation of the criminal group as its member, on 7/8 March 2008, so that the Verdict can be quite reasonably based on the testimony of this person as an eyewitness. 87. The witness stated that at that time one could clearly understand the manner in which the group was functioning, the individual tasks of its members, specifically, who were ”drivers” and who were ”walkers”, suggesting that the responsibilities of the persons in the group were split. The witness testified in the manner described in the Trial Verdict and according to the opinion of the Appellate Panel, the report and testimony of witness Zijo are sufficient to conclude that the Accused Kovači knew that the persons were coming to BiH and that their takeover in Trebinje was arranged. 88. It is also clear from all other previous actions that occurred continually that the Accused Kovači was part of these criminal offenses, and taking over of these five persons is not in itself an exception. Witness - Investigator Zijo said that he was contacted by Zeko (person nicknamed Zeko is Zejid Šabić who has already been found under the Verdict to be a corroborator who was responsible for the takeover of individuals in Velika Kladuša and their transfer to the Republic of Croatia) while they were going towards Trebinje to pick up five Albanian citizens, and that he told him that out of five persons that were expected to arrive in ”a tour” in Trebinje two were of Kovači's. Now, there is no a doubt that the Trial Panel has also reasonably found the Accused Kovači guilty of the offence under the Section. 89. Concerning Section 10 of the Verdict, the Defense argues that it is obvious that the Accused did not organize the transfer of the migrants from Mostar to Croatia, but the undercover investigators accommodated them in boarding house Boston in Bihać. The same appeal submission was made with respect to Section 11 of the Operative Part. In addition to the above mentioned, the Defense points out that at the time of the event under Section 10, the Accused was not at large as he was ordered into custody. 90. Witnesses – undercover investigators Zijo and Cole, as well as Zejid Šabić testified about the circumstances surrounding this Section. Their testimonies are convincing and they corroborate the conclusion from the contested Verdict that the Accused Gani Kovači was the head of the criminal group and that he personally never took over any individuals, or drove or accommodated them, but he coordinated the activities of the group and made payments, so this fact fits into already described modus operandi of the Accused Kovači, as described by the undercover investigators and other witnesses. 91. The assertion that three persons described under Section 11 of the Operative Part of the Verdict were taken over and accommodated in Mostar by the undercover investigators Zijo and Cole is correct; however, witness Zijo was precise saying that Gani contacted and promised him personally that he would be paid for the ”tour” of three persons that he took over near Trebinje. 92. Also, the appeal submission that the Accused could not commit the offense under Section 10 of the Verdict as he was in custody is unfounded. As the Trial Court, based on the presented evidence, has correctly found, the offense under Section 10 of the Verdict occurred on 13/14 March 2008 and the Accused Kovači was deprived of liberty later on, that is, on 25 March 2008. Thus, this offense had occurred before the Accused Kovači was ordered into custody. 93. Therefore the Appellate Panel concludes that the facts concerning the responsibility of the Accused Kovači have been correctly found in the Trial Verdict and that a correct conclusion has been drawn based on them, for the reason of which the relevant Defense appeal submissions are refused as unfounded.

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B. APPEAL BY THE DEFENSE FOR THE SECOND ACCUSED ĐULIĆ

94. The Defense for the second Accused Musair Đulić argues that Sections 1, 2, 3, 4, 5, 6 and 11 of the Operative Part of the contested Verdict do not contain the facts and circumstances constituting the elements of the criminal offense the Accused Đulić is charged with, and that his participation has not been proved as described. However, apart from pointing out such arbitrary averments, the Appeal does not challenge the evidence which specific factual findings about culpability of the Accused are based on, and for this reason the Panel will review only those submissions that specify a problematic piece of evidence or conclusion. 95. Concerning the findings under Section 5 of the Operative Part of the Verdict, which are being correctly contested by the Defense, the Appellate Panel concludes that the Trial Panel has correctly and reasonably found on the basis of the testimony of witness Juka/the undercover investigator/ that the Accused, by the actions described under Section 5 of the Operative Part, committed the continued criminal offense of Illicit Trafficking in Narcotic Drugs in violation of Article 195(1) and (2) of the CC of BiH. In addition, this was not the only evidence of the complicity of the Accused Đulić in the criminal offenses under the above mentioned Section. 96. Specifically, the above mentioned witness, at the main trial held on 19 May 2009 described in detail the actions undertaken to verify the information received from Jaro that Musa planned to sell narcotic drug marijuana to Edin Đulić. With this regard, the above mentioned witness clearly and undoubtedly pointed out that he was continually following Eldin Đulić from his encounter with the Accused Musair Đulić, and from his entering the Polo car until the moment when he was deprived of liberty by members of the Federal Ministry of Interior (MUP) near Hadžići. 97. The Verdict is also based on the testimony of witness Semin Kadić who participated in the search of the car where the relevant narcotic drug was found after the arrest of the driver Eldin Musić. 98. On the occasion of that arrest, 10 kilograms of narcotic drug marijuana was found with Edin Musić. The aforementioned finding of the Trail Panel is also additionally corroborated with the testimony of witness Edin Đulić who confirmed the averments of witness Juka/the undercover investigator in all parts except with regard to the involvement of the Accused in this incident, additionally corroborating the truthfulness of the averments of this witness. 99. This Panel, taking also into account the statements of witness Juka, finds that the averments of witness Edin Đulić that he cannot remember whether he met with the Accused Musair and that he was not at all involved in the aforementioned actions, are calculated and offered to exculpate the Accused (who is a relative of the witness) of guilt of this offense. 100. Also, the argument of the Defense that the Accused is not guilty because he was not charged in another criminal proceeding conducted against Eldin Đulić cannot be accepted. The Accused Musair Đulić was indicted in the case before the Court of BiH and the evidence proving his culpability was presented during the proceedings. 101. Furthermore, the Defense also finds faults with Section 3 of the Verdict where the Court has found, based on the testimonies of witnesses Zejid Šabić and Muhamed Mahmutović, that the Accused Đulić organized purchase and delivery of arijuana, while on the other hand witnesses Muhamed Mahmutović, Branislav Šupić and SIPA informant Adis Hamzić claimed that Đulić was not at all associated with this Section.

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102. Concerning this appeal submission, the testimonies of witnesses Muhamed Mahmutović, Zejid Šabić, Branislav Šupić as well as the testimony of witness Juka/ the undercover investigator speak contrary to the Defense appeal submissions that the Trail Panel did not make the correct conclusions with respect to the findings presented under Section 3 of the Operative Part of the contested Verdict. 103. The Panel notes that the Defense, by its appeal submission, mainly contests the involvement of the Accused Musair Đulić as an organizer in the sale and delivery of the narcotic drug, while generally pointing to the testimonies of witnesses Muhamed Mahmutović, Branislav Šupić and Adis Hamzić, without specifying the discrepancies between their testimonies and the findings of the Trial Panel in this part. Only with respect to witness Adis Hamzić, the appeal points out that he categorically asserts that Musair Đulić is not at all associated with the described actions. 104. However, based on a detailed analysis of the testimonies of the above mentioned witnesses, this Panel holds that the Trial Panel, in this part of the contested Verdict, gave appropriate and clear explanation based on a comprehensive evaluation of the testimonies of the above mentioned witnesses, both individually and collectively. So, it undoubtedly follows from the testimony of witness Muhamed Mahmutović that Musa, with respect to whom he confirmed at the hearing that it was the Accused Musair Đulić, took part in the negotiations to sell the car made Golf III, and that he, after the car had been exchanged for 6 kilograms of narcotic drug marijuana and subsequently seized by the Police in Trebinje, went to Trebinje together with the witness, his cousin and Branislav Šupić a.k.a. Lalo to take over the car from the Police Station in Trebinje. 105. Furthermore, witness Zejid Šabić, at the main trial held on 19 January 2009 testified that witness Muhamed Mahmutović was making arrangements with Musair Đulić and Jaro for the exchange of the above mentioned car for 6 kilograms of narcotic drug and that, on that occasion, it was agreed to buy 10 kilograms of the narcotic drug. 106. The essential parts of the above mentioned testimonies are also supported with the testimony of witness Juka/the undercover investigator who precisely and undoubtedly points to the Accused as the person that proposed and subsequently realized the purchase and delivery of 10 kilograms of narcotic drug marijuana in the manner described under Section 3 of the Operative Part of the contested Verdict. 107. According to this Panel, the testimonies of witnesses Adis Hamzić and Branislav Šupić the Defense refers to in the Appeal, are consistent with the testimonies of the above mentioned witnesses for the most part except for the assertions that the Accused Musair Đulić is actually the person that was there “by chance”. 108. However, due to the above established state of facts, this Panel is of the opinion that the above mentioned testimonies cannot challenge the conclusions of the contested Verdict in this part, and that given the fact that the Accused and the above mentioned witnesses are acquaintances, those testimonies are actually directed towards attempting to diminish the culpability of the Accused in the commission of these offenses. Based on the aforementioned, such appeal submissions of the Defense have to be refused as unfounded. 109. Furthermore, the Defense points out that the Trial Panel has assumed without any evidence that the Accused Musair Đulić took part in the acts described under Section 11 of the Operative Part of the contested Verdict and that no evidence exists in support of it. Furthermore, the Defense considers illogical that the Court has accepted the testimonies of Adis Hamzić, Samira Tanović, Damir Fazlagića and Nikica Knezović, and that it has not accepted those of Branislav Šupić,

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Mehmed Mahmutović, Eldin Đulić and Adis Hamzić as their testimonies lead to a conclusion that the Accused is not guilty. 110. Concerning the appeal submission with respect to Section 11 of the contested Verdict, the Appellate Panel concludes that the findings of the Trial Panel, as presented in the contested Verdict are based on a correct and well-founded evaluation of evidence of witness Juka/the undercover investigator/ and witnesses Nijaz Bajazit and Enes Gračanin. 111. Specifically, at the hearing held on 12 June 2009, witness Juka/the undercover investigator/ clearly and undoubtedly gave account of his knowledge concerning the involvement of the Accused Musair Đulić in the above mentioned acts. So, as it is correctly mentioned in the reasoning of the contested Verdict, the witness points out that a person nicknamed Ikica told him during the phone call that the above mentioned “tour” was Musa’s (of the Accused Musair Đulić) and that this person was a guarantor for the above mentioned “tour”. This testimony is also identical with the Report of the above mentioned witness, prepared on 24/25 April 2008, which inter alia points out that the Accused Musair Đulić will pay money upon arrival of “the tour” in Zagreb. This finding of the Trial Panel is also additionally supported with the testimonies of witnesses Nijaz Bajazit and Enes Gračanin. 112. In addition to the above mentioned, the Trial Panel has also appreciated the previous findings or the fact that the Accused Musair Đulić during the same (relevant) period already took part in the same acts of the commission of the referenced criminal offense and reasonably linked this circumstance, as controlling not as decisive factor, to the above mentioned conclusion. 113. Based on the above mentioned, arbitrary Defense appeal submissions aimed at contesting this part of the reasoning do not put in this part the reasonable conclusion of the Trial Panel in doubt, and therefore they are refused as unfounded. 114. In the Appeal, the Defense also points to Count 4 of the Indictment, specifically, that it was not possible to prove that Besim Sinan organized, through a bank, the payment to Musair Đulić for the transfer of the migrants, as he did not receive that money and his signature did not appear, while it is stated under Count 5 of the Amended Indictment that Besim Sinan paid the money to Adis Hamzić (the informant). 115. The issue of payment for delivered services or of getting rich by acquiring property gain per se is not an element of the criminal offense under Article 189(1) and (2) which the Accused was inter alia charged with. All the witnesses heard in favor of the Prosecution of BiH stated that the criminal organization functioned on the profit principle and that each action had its ”price”, or it had its monetary value expressed in Euro. In this specific case, it is not relevant whether a member of the criminal group was really paid as Article 189(1) and (2) requires the purpose of acquiring gain, which is in this case quite certain with respect to all the Accused, thus this Defense appeal submission is refused.

C. APPEAL BY THE DEFENSE FOR THE THRID ACCUSED SINANI

116. The Defense holds that no lawful and solid piece of evidence that the Accused is the perpetrator of the criminal offense he is sentenced for has not been presented before the Court. 117. The Defense submits that it is unclear how Adis Hamzić could be the key Defense witness given that he does not at all know the Accused and they did not have any joint criminal activities.

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118. The appeal submission of the Defense is unfounded. The following facts emanate from the testimony of Adis Hamzić. Witness Hamić in his testimony (which predominantly referred to Section 2 of the Operative Part) said that his task was to take over the migrants from Stolac to Mostar; those migrants were „Sinani's“ men, and he arranged their transfer to BiH. The witness said that he was arranging the transport of these migrants with Musa (Musair Đulić), while Sinani was making arrangements with Musa. There was a plan for the migrants to be taken over in Žegulja and accommodated in hideouts. He also said that he knew Besim Sinani, that he got to know him through Musa in Sarajevo four years prior to his testimony and that he worked for him even at that time while he was not aware of that. He even said that he ”was sitting” together with Sinani on several occasions. 119. This witness, as already stated , made an Agreement with the Prosecution inter alia for the acts that he testified about and that all the three Accused took part in, clearly collerating the participation of all the three Accused, and as a result the Appellate Panel did not have any doubt concerning the previous findings of the Trial Panel that were based on his testimony. 120. Therefore, the Defense appeal submission that the Accused Sinani and witness Hamzić did not have any joint criminal activities is unfounded. 121. The Defense points out that this is an indirect witness and that, according to the proof beyond reasonable doubt standard, the Court cannot base the Verdict on the accounts of such Prosecution witnesses, and it submits that similar procedural situation refers to the undercover investigators with whom the Accused did not have any connection or contacts, however the Court accepted the given information as evidence against the Accused. The Defense holds that it is obvious that the state of facts with respect to the Accused Sinani is incomplete and incorrect that the Court could decide about the guilt of the Accused in a correct and lawful manner. 122. With respect to the admissibility of the testimonies of the persons that made Plea Agreements the Panel has already presented the arguments concerning the appeal submissions of the Accused Kovači. In addition, the testimony of Adis Hamzić is not the only evidence about the involvement of the Accused Sinani, as his criminal complicity was also corroborated with the report of the undercover investigator of 13 January 2008 where Musa confirmed that Jaro was transporting Đuka's men, while during the night of 20/21 January 2008, he was personally contacted by „a certain Besim Sinani nicknamed Đuka“. Therefore, the facts from the contested Verdict that witness Hamzić stated, were additionally supported with the reports and testimonies of undercover investigator Juka, of 13 January 2008 and of 20/21 January 2008, which was stated in the contested Verdict in detail. Therefore, there is no dilemma about the participation of the Accused Sinani in the manner described in the Trial Verdict.

VII. APPEAL FROM THE DECISION ON THE LEGAL SANCTION

A. APPEAL BY THE DEFENSE FOR THE FIRST ACCUSED KOVAČI

123. The Defense for the Accused Gani Kovači submits that the Court has not sufficiently appreciated the mitigating circumstances, that the above mentioned term of imprisonment of 8 years is too severe and that the purpose of punishment would be also achieved with a more lenient punishment. Also, the Defense points to the fact that the Court could not consider the fact that the witness was the key man for international contacts as a mitigating circumstance as such fact was not established.

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124. However, the Appellate Panel does not agree with these appeal submissions and holds that the punishment pronounced by the contested Verdict has been correctly meted out, and that in addition to the mitigating circumstances, the aggravating circumstances have also been correctly appreciated. The Accused Kovači has been previously criminally convicted for the same type of offenses. This fact itself is, from the point of view of general and special prevention, sufficient to suggest that it is necessary to mete out a more severe punishment to the Accused. This Panel also finds that the punishment imposed on the Accused is commensurate to the degree of his criminal responsibility, his contribution and the gravity of the committed criminal offense, and that the purpose of punishment under Article 39 of the CC of BiH will be also fully achieved with such punishment, and therefore the contrary appeal submissions of the Defense for the Accused Kovači are considered unfounded.

B. APPEAL BY THE DEFENSE FOR THE SECOND ACCUSED ĐULIĆ

125. The Defense for the Accused Musair Đulić finds that from the above mentioned reasons it is clear that no grounds existed for conducting the criminal proceedings against the Accused Đulić, and consequently there were no grounds for pronouncing the punishment. 126. Concerning the explanation of individualization of the punishment, the Defense submits that the Court incorrectly and incompletely established the state of facts to the detriment of the Accused and made its evaluation arbitrarily by taking everything as aggravating circumstances. Furthermore, the Defense argues that the explanation of the Court about a stricter criminal policy is contradictory in itself as the Trial Panel, when individualizing the punishment of the Accused Besim Sinani, took into account his age, which was not the case with respect to the Accused Musair Đulić. Thus the Defense finds that this is a discrimination of the Accused in this particular case. The Defense holds that the Court should have reduced the punishment under the same ground also in respect to the Accused Musair Đulić. 127. The Appellate Panel does not agree with the arguments submitted in the Appeal and holds that the Trial Court has correctly meted out the punishment taking into account both the mitigating circumstances and the aggravating circumstances on the part of the Accused. Specifically, based on all the established facts, the Accused Đulić, besides the Accused Kovači was most involved in the incriminating acts. In addition to smuggling of persons, he is also charged with dealing in narcotic drugs, which in itself speaks of the dangerous nature of his activity. On the contrary, the punishment meted out to him took into account his situation and the circumstances of the commission of the offense, and it is not severe even from the point of view of general and special prevention given his actions and it is more than adequate for his acting and contribution in the commission of the criminal offense. 128. The appeal submission concerning the discrimination of the Accused Đulić as compared to the Accused Sinani is unfounded. When pronouncing the punishment the Court is obligated to follow the general rules for meting out the punishment with respect to each of the Accused individually in order to exercise the individual and general prevention and achieve the purpose of the punishment as a result. 129. It is the fact that the Trial Court, with respect to the Accused Đulić, did not mention his age as a special mitigating circumstance. However, this in itself does not mean that the punishment should be more lenient because of that, especially when taking into account other aggravating circumstances. Also, the fact that the Trial Court, with respect to the Accused, applied the provisions for mitigating of the punishment does not mean that it had to necessarily apply them with respect to the Accused Đulić. Having in mind the argumentation from Paragraph 127 of this

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Verdict no particularly mitigating circumstances could be found suggesting that a more lenient punishment would achieve the purpose of punishment of the Accused Đulić.

C. APPEAL BY THE DEFENSE FOR THE THIRD ACCUSED SINANI

130. The Defense for the Accused Sinani contests the decision on the legal sanction by contesting the factual findings about the culpability, stating that the sanction is not adequate given that the culpability has not been established either. 131. The Appellate Panel considers this appeal submission unfounded as the culpability of the Accused is proved, which, however, has been previously reasoned in the Verdict. Furthermore, the Appellate Panel notes that the Court, in the Trial Verdict, has taken into account the number of committed acts and the degree of the expressed public risk as well as the role of the Accused in the acts of the commission. The Appellate Panel notes that the Trial Court applied, besides these and family circumstances, the correct standards in meting out the punishment and that the mitigated punishment of 2 years is quite adequate for this criminal offense. 132. Based on all the aforementioned, the Appellate Panel has refused all the Appeals as unfounded and decided as in the Operative Part pursuant to Article 313 of the CPC of BiH.

PRESIDENT OF THE PANEL

Record-Taker: JUDGE Dženana Deljkić Blagojević Nedžad Popovac

LEGAL REMEDY: No appeal lies from this Verdict.

I hereby confirm that this document is a true translation of the original written in

Bosnian/Croatian/Serbian.

Sarajevo, 03 June 2011

Radmila Cmiljić

Permanent Court Interpreter for English Language