COURT OF

Number: X-K/07/474-2 Sarajevo, 26 February 2009

IN THE NAME OF BOSNIA AND HERZEGOVINA

The Court of Bosnia and Herzegovina, sitting as the Panel consisting of Judge Branko Perić as the Presiding Judge and Judges Esad Fejzagić and Nenad Šeleda as members of the Panel, with the participation of the court officer Ivana Petković, in the criminal case against the Accused Dragan Miljković, for the criminal offense of Associating for the Purpose of Perpetrating Criminal Offences under Article 249, Paragraph 2 in relation to Paragraph 1 of the Criminal Code of Bosnia and Herzegovina (hereinafter: CC BiH) and the criminal offence of Smuggling of Persons under Article 189, Paragraph 2 of the CC BiH, regarding the Indictment of the Prosecutor’s Office of Bosnia and Herzegovina, No. KT-160/08 of 9 September 2008, following the plea agreement deliberation hearing and the sentencing hearing, in the presence of the prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina, Božo Mihajlović, the Accused Dragan Miljković and his Defence Attorney Alija Galijatović, attorney from Sarajevo, on 26 February 2009 reached and publicly announced the following

VERDICT

The Accused,

DRAGAN MILJKOVIĆ, a.k.a. “Picko“, son of Stevo and Mara, née Miljanović, born on 4 October 1976 in Trebinje, Serb, citizen of BiH, car mechanic by profession, married, father of two underage children, permanently residing in Trebinje, settlement of Hrupjela, at Leotarska Street bb /no number/, JMBG /Personal Identification Number/ 0410976153956, previously convicted,

IS GUILTY

Because:

After the citizens of the Republic of from the territory of : Thaqi Naser, Kodra Besnik, Marmullaku Uke, Hisenaj Sadet, Valbon Gashi, Dardan Gashi, Kasmi Bardhyl, Ndoj Pjeter, Gjeloshi Admir, Delija Adem and Dakaj Labinot had arranged with persons from the territory of Kosovo known to them that those persons would organise their transfer from Kosovo to Italy for an amount of 2,500 € per person, and after those or other persons – the organisers had organised their transfer and transferred them to Montenegro, the accused together with two members of the organized group, Adis Hamzić and Miomir Zečević, and together with other persons known to them, by connecting and arranging with persons who organised and paid the transfer of migrants, connecting and arranging with persons who organise and carry out the transfer of migrants for a monetary compensation, connecting and arranging with other persons known to them with a view to transferring migrants, through mutual agreement and association into groups of several persons with the aim of transferring migrants, as members of the organized group of people, for the purpose of acquiring monetary gain in an amount ranging from 50 € to 1,000 € per migrant, which they agreed on among themselves and with the organisers, organised the transfer of the migrants from the Republic of Montenegro, via the territory of Bosnia and Herzegovina, to the Republic of , in the way that on 23/24 August 2008 the person with whom the two members of the organized group had made an arrangement organised and transferred the migrants across the state border at a point where there was no border crossing, from the Republic of Montenegro to Bosnia and Herzegovina, whereafter Miomir Zečević, following prior agreement with one member of the organized group, took over the migrants at the agreed handover place at the border from the person who had transferred them, whereafter Miomir Zečević and the accused, by mutual agreement, transferred together the migrants from the border to the place called Žegulja, in the way that Miomir Zečević was transporting the migrants in his own vehicle, while the accused was driving his own vehicle ahead of the accused Miomir Zečević, observing police checkpoints, thereby securing the transportation, while at the same time Adis Hamzić was observing the police checkpoints between Stolac and Ljubinje, thereby securing the transportation, and was waiting to take over the migrants from the accused Miomir Zečević and to transfer them to Mostar with the aim of further transfer from Mostar to the Republic of Croatia, and while performing these actions Miomir Zečević and the accused were caught in the act in the area of the Municipality of Ljubinje by the authorised officers of the State Investigation and Protection Agency, on which occasion the accused was apprehended together with the migrants, while Miomir Zečević managed to flee and seek help from members of the organized group.

Therefore:

The accused Dragan Miljković, by the actions described, in collusion with a member of the organized group of people, in terms of Article 1, Paragraph 19 of the CC BiH, which was organised with a view to transferring migrants from the Republic of Montenegro via the territory of Bosnia and Herzegovina to the Republic of Croatia and other countries of Western Europe without meeting the requirements for the legal entry and the legal stay of migrants in other countries and with the aim of enabling those migrants to remain in those countries, for the purpose of the following immediate transfer of migrants via the Bosnia and Herzegovina territory in order to transfer them to other countries of Western Europe and to enable them to remain in those countries, became a member of the organized group of people in terms of Article 1, Paragraph 18 of the CC BiH, with the aim of transferring migrants via the Bosnia and Herzegovina territory for the purpose of acquiring financial gain of up to 50 € per person, and, as a member of that group, he transferred an undetermined number of migrants via the Bosnia and Herzegovina territory, and he definitely attempted to transfer the migrants that were referred to, thereby acquiring financial gain in an undetermined amount.

Whereby he committed:

The criminal offence of Associating for the Purpose of Perpetrating Criminal Offences referred to under Article 249, Paragraph 2 in relation to Paragraph 1 of the CC BiH and the criminal offence of Smuggling of Persons referred to under Article 189, Paragraph 2 of the CC BiH, in conjunction with Article 53 of the CC BiH.

Wherefore the Court,

For the criminal offence of Associating for the Purpose of Perpetrating Criminal Offences under Article 249, Paragraph 2 in conjunction with Paragraph 1 of the CC BiH, with the application of the aforementioned legal provision and pursuant to Articles 48, 58, and 59 of the CC BIH, imposes the punishment of imprisonment of 7 (seven) months, and

For the criminal offence of Smuggling of Persons under Article 189, Paragraph 2, with the application of the aforementioned provisions of Articles 48, 58 and 59 of the CC BiH, imposes the punishment of imprisonment of 1 (one) year and 8 (eight) months.

Wherefore, pursuant to Article 53 of the CC BiH, the Court imposes a

S U S P E N D E D S E N T E N C E

Which imposes on the accused a compound punishment of imprisonment of 1 (one) year and 9 (nine) months, and at the same time determines that the punishment shall not be executed unless the accused commits a new criminal offense within the probation period of 3 (three) years from the day of the finality of the Verdict

And

Pursuant to Article 46 and Article 41 of the CC BiH as an accessory punishment imposes on the accused a

F I N E

In the amount of 300.00 KM (threehundred convertible marks),

Which the accused is obligated to pay within one month from the day of the finality of the Verdict. Should the Accuse fail to pay the fine, pursuant to Article 47, Paragraph 3 of the CC BiH it shall be substituted by the punishment of imprisonment in a way that each 50 (fifty) KM started shall be substituted by one day of imprisonment.

Pursuant to Article 188, Paragraph 4 of the Criminal Procedure Code of Bosnia and Herzegovina (hereinafter: CPC BiH), the Court relieves the accused of the duty to reimburse the costs of the criminal proceedings which shall be paid from within budget appropriations.

R e a s o n i n g

The Indictment No: KT-160/08 of 9 September 2008 of the Prosecutor’s Office of Bosnia and Herzegovina charged Dragan Miljković with the criminal offense referred to under Article 249, Paragraph 2, in conjunction with Paragraph 1 of the CC of BiH and the criminal offense of Smuggling of Persons under Article 189, Paragraph 2 of the CC BiH.

The Preliminary Hearing Judge of this Court confirmed the Indictment on 11 September 2008.

On 5 December 2008 the accused Dragan Miljković and his defence counsel Alija Galijatović concluded a plea agreement with the prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina, Božo Mihajlović. According to the agreement, the accused confesses to having committed the criminal offenses referred to in the Indictment of the Prosecutor’s Office of BiH and consents to the punishment of imprisonment of 2 (two) years and a suspended sentence whereby the punishment shall not be executed unless the accused commits a new criminal offense within the period of 1 (one) to 5 (five) years. In addition, the accused consents to the imposition of, as an accessory punishment, a fine in the amount of 500.00 KM, to the confiscation of the amount of 200.00 € which he gained in the perpetration of the criminal offense and is obligated to testify before the Court of BiH on the manner in which he committed the criminal offence and on the persons who, in concert with him, took part in the perpetration of the criminal offenses that he confessed to have committed.

At the hearing held on 26 February 2009 the prosecutor abandoned Article 6 of the plea agreement, which refers to the confiscation of illegal material gain in the amount of 200.00 €, to which the accused and his defence counsel concurred.

The Court examined the plea agreement in terms of Article 231 of the CPC BiH and accepted it having found that the agreement had been concluded voluntarily, consciously and with understanding, that the accused had been informed on possible consequences, including those in relation to the claims under property law and the expenses of the criminal proceedings and having found that there was enough evidence pointing to the culpability of the accused. The accused reaffirmed before the Panel, in a clear and unambiguous way, his guilt for the offense that he is charged with under the Indictment, stating that he had not been exposed to any pressure at the time of the conclusion of the agreement and that his defence counsel had convincingly explained to him that making the plea agreement was in his best interest.

That the accused is indeed guilty of the actions and offense that he owns up to having perpetrated, the Court found on grounds of evidence submitted with the Indictment which was examined during the confirmation of the Indictment and concerning which the Defence lodged no preliminary motions.

In accordance with the established facts, the Court found that requirements under Article 231, Paragraph 4 of the CPC BiH were fully met to accept the plea agreement.

On acceptance of the plea agreement, the Court held a sentencing hearing and, following the statements of the prosecutor, the accused and his defence counsel, reached the Verdict finding the accused guilty of the criminal offense under Article 249, Paragraph 2, in conjunction with paragraph 1 of the CC BiH, and the criminal offense of Smuggling of Persons under Article 189, Paragraph 2 of the CC BiH, having found that the offenses had been committed with intent (the accused was conscious of the offense and willed its perpetration) and in the state of mental competence.

Deciding on the proposed criminal sanctions, as mitigating circumstances the Court acknowledged that the accused admitted to have committed the charging criminal offense, his appropriate comportment before the Court, his genuine repentance, and as an aggravating circumstance his prior conviction for the criminal offense of Illegal Trade under Article 381/1 of the CC RS in the Verdict of the Lower Court of Trebinje, No. K 181/02.

Allowing for these facts and circumstances, the Court imposed on the accused a compound punishment of imprisonment of 1 (one) year and 9 (nine) months and imposed a suspended sentence simultaneously deciding that the punishment imposed would not be executed unless the accused committed a new or the same criminal offense within 3 (three) years.

When imposing the fine, the Court ordered that it be paid by the accused within one month of the finality of the Verdict, holding such a decision to be justified considering the financial and family status of the accused. Should the accused fail to pay the imposed fine within the set time period, it shall be substituted, pursuant to Article 47, Paragraph 3 of the CPC BiH, with the punishment of imprisonment in the way that each 50 (fifty) KM started shall be substituted by one day of imprisonment.

The Court found that the criminal sanctions were commensurate to the offense and the degree of the criminal liability of the accused and that they would satisfy the purpose of the criminal sanctions prescribed by Article 6 and Article 39 of the CC BiH by preventing the accused and other potential perpetrators of criminal offenses from committing criminal offenses in the future.

Pursuant to Article 188, Paragraph 4 of the CPC BiH, the Court relieved the accused of the duty to reimburse the costs of the criminal proceedings.

Record-taker: PRESIDENT OF THE PANEL JUDGE

Ivana Petković Branko Perić

/signatures and stamp affixed/

INSTRUCTION ON LEGAL REMEDY: An appeal from the criminal sanction shall not be allowed, whereas the Verdict may otherwise be appealed within 15 days of the date of delivery.