SUD BOSNE I HERCEGOVINE СУД БОСНЕ И ХЕРЦЕГОВИНЕ Number

SUD BOSNE I HERCEGOVINE СУД БОСНЕ И ХЕРЦЕГОВИНЕ

Number: S1 2 K 003440 09 K (Reference number: X-K-09/852) Sarajevo, 23 November 2010

IN THE NAME OF BOSNIA AND HERZEGOVINA

The Court of Bosnia and Herzegovina, Judge Marijanović Anđelko as a single judge, with the participation of legal counsel-assistant Gadžo Mirela as a minutes-taker, in the criminal case against the defendants Franjo Ilic and Zoran Ikonic for the criminal offense of accepting gifts and other forms of benefits in Article 217 paragraph 1, in conjunction with Article 54 of the Criminal Code of Bosnia and Herzegovina (CC BiH) and failure to report the crime or the perpetrators of the crime in Article 230 Paragraph 2 CC BiH, upon indictment by the Prosecutor's Office of Bosnia and Herzegovina, No. KT-102/07 dated 15 December 2009, confirmed on 21 December 2009, in the presence of the defendants Franjo Ilić and Zoran Ikonic and defense counsel II – of the defendant, the lawyer Jokic Dragiša and in the absence of the prosecutor of the Prosecutor's Office of Bosnia and Herzegovina and defense counsel I, and – of the defendant, lawyer Ljubović Bakir, on 23 November 2010, has reached and publicly announced the following:

VERDICT

DEFENDANTS:

1. ILIC FRANJO, son of Stjepan and mother Kata born Nikolić, born 15 March 1975 in Doboj, residing in Zepce, Debelo Brdo bb, Croat, BiH citizen, a mechanics technician, employed by the Border Police of Bosnia and Herzegovina - TU East - JGP Visegrad, married , father of three young children, with no criminal record, personal identification number: 1503975193832,

2. IKONIĆ ZORAN, son of Marko and mother Zora born Milinkovic, born 15 April 1971 in Rogatica, residing in Visegrad, 6 Vidovdanska, Serb, BiH citizen, a mechanics technician, employed by the Border Police of Bosnia and Herzegovina - TU East - JGP Visegrad , married, father of two children, with no criminal record, personal identification number: 1504971173248

Pursuant to provisions of Article 284 Paragraph 1 point c) of the Criminal Code of Bosnia and Herzegovina (CPC BiH), ARE

ACQUITTED OF CHARGES

That:

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

Defendant Franjo Ilic

While working as a patrol sector leader of the Border Police of Bosnia and Herzegovina, Field Office East, of the Border Police Unit in Visegrad, in the course of 2006 in the municipality Rudo, he asked and received from a number of people various sums of money to enable them to, in conflict with the decision of the Council of Ministers of Bosnia and Herzegovina on conditions of import and transport of livestock, products and food of animal origin, medications, animal feed and waste in BiH ("Official Gazette" No. 17/04), Decision of the Council of Ministers of Bosnia and Herzegovina on veterinary examination of animals across the borders of Bosnia and Herzegovina ( "Official Gazette" No. 42/06) and Decision of the Ministry of Foreign Trade and Economic Relations of the veterinary certificate on health status of animals and consignments of animal origin in domestic and international trade ("Official Gazette" No. 33/03), smuggle the livestock from the Republic of Serbia to Bosnia and Herzegovina outside the border crossings, thus:

1. on 12 October 2006, he requested, and afterwards received from Alem Sipovic amount of EUR 200.00 to enable him to smuggle on the motor vehicle 7 (seven) heads of livestock outside of the border crossing,

2. on 26 November 2006, he requested, and afterwards received from Arsic Vulo amount of KM 650.00, to allow Sipovic Alem to smuggle on the motor vehicle 23 (twenty three) heads of livestock outside of the border crossing,

3. on undetermined date in the autumn of 2006, he requested, and afterwards received from Arsic Vulo amount of EUR 80.00, and from Novakovic Branislav amount of EUR 20.00, to enable Arsic Vulo to smuggle on the motor vehicle 5 (five) heads of livestock outside of the border crossing.

Defendant Zoran Ikonic

On 26 November 2006 working as an official of the Border Police of Bosnia and Herzegovina, Field Office East, of the Border Police unit in Visegrad, when performing the control of the wider area around the border between the Republic of Serbia and Bosnia and Herzegovina, he was present when Franjo Ilic, requested, and afterwards received from Arsic Vulo amount of KM 650.00, contrary to the Decision of the Council of Ministers of Bosnia and Herzegovina on conditions of import and transport of livestock, products and foods of animal origin, drugs, animal feed and waste in BiH ("Official Gazette "No. 17/04), Decision of Council of Ministers of Bosnia and Herzegovina on veterinary examination of animals across the borders of Bosnia and Herzegovina (" Official Gazette "No. 42/06) and Decision of the Ministry of Foreign Trade and Economic Relations of the veterinary certificate on health status of animals and consignments of animal origin in domestic and international trade ("Official Gazette" No. 33/03), enabling Sipovic Alem to smuggle on the motor vehicle 23 (twenty three) heads of livestock from the Republic of Serbia to Bosnia and Herzegovina outside of the border crossing, and not to report it to the competent authorities,

Thereby, the defendant Ilić Franjo would commit a criminal offense of receiving gifts and other forms of benefits as laid down in Article 217 paragraph 1, in conjunction

2 with Article 54 of the Criminal Code of Bosnia and Herzegovina, and the defendant Zoran Ikonic would commit a criminal offense of Failure to report the crime or the perpetrators of the crime as laid down in Article 230 Paragraph 2 of the Criminal Code of Bosnia and Herzegovina.

Pursuant to provisions of Article 189 Paragraph 1 CPC BiH, the costs of criminal proceedings and the incurred expenses of the defendants, as well as the incurred expenses and rewards of their defense counsels shall be borne by the budget.

RATIONALE

1. Indictment

The indictment of the Prosecutor’s Office of Bosnia and Herzegovina, No. KT-102/07 of 15 February 2009, charged the defendant Franjo Ilić and Zoran Ikonić with the following crimes: the defendant Ilić Franjo for the criminal offense of receiving gifts and other forms of benefits as stated in Article 217 Paragraph 1 in conjunction with Article 54 CC of BiH, and the defendant Zoran Ikonic of the criminal offense of Failure to report a crime or the perpetrators of the crime as stated in Article 230 Paragraph 2 of CC BiH.

The preliminary hearing judge confirmed the indictment on 21 December 2009.

At the plea hearing, held on 17 February 2010, the defendants Franjo Ilić and Zoran Ikonic pleaded not guilty to the offenses, which were alleged in the indictment, after which the case was forwarded to a single judge to schedule the main hearing.

The main trial started on 9 April 2010, by reading the indictment of the Prosecutor’s Office No. KT-102/07 from 15 December 2009.

2. Presentation of evidence

a) Indictment

In the opening statement, the prosecutor said that by way of evidence presented during the trial, namely by interviewing witnesses and examining the physical evidence, he will prove that the defendants committed the crimes that they had been charged with.

In the course of the evidentiary proceedings before the Court, as the evidence for the prosecution, the following witnesses have been examined: Gibanica Zijad, Branislav Lazovic, Arsic Vule, Branislav Novakovic, Sipovic Alem, Dusko Arsic, Džida Novak, Medović Bojan and Simovic Dalibor.

During the course of a trial, the Prosecution has presented the following documents and the Court has entered them into the court record: Work Order, State Border Service Unit Visegrad, Field Office East, No. 18-10-4-02-3450/06 with the report from Oputar Enes and Ilic Franjo of 12 October 2006, Work Order, State Border Service Unit Visegrad, Field Office East, No. 18-10-4-02-3998/06 from 24 November 2006 with the report from Ilic Franjo of 25/26 November 2006, the Performance review of Franjo Ilic, Zoran Ikonić and Oputar Enes, State Border Service Unit Visegrad, Field Office East, No. 18-10-4-34-167/07

3 of 21 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6/07 of 8 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6-09/07 of 23 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, State Border Service Unit Visegrad, No. 18-10-4-04-6-10/07 of 23 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6-11/07 of 23 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6-12/07 of 23 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6-07/07 of 23 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6-08/07 of 23 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6-04/07 of 23 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6-03/07 of 23 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6-06/07 of 23 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6-05/07 of 23 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6-02/07 of 23 February 2007, the Record of identification, the State Border Service, Field Office East-Visegrad, the State Border Service Unit Visegrad, No. 18-10-4-04-6-01/07 of 23 February 2007, Photo-documentation of the identification, the State Border Service Visegrad, No. 18-10-4-04-6/07 of 13 February 2007, Photo-documentation of the identification, the State Border Service Visegrad, No. 18- 10-4-04-6/07 of 23 February 2007, Receipt on temporary seizure without a warrant from the Court, i.e. the voluntary surrender of the case Sipovic Alem, Ministry of Interior of Republika Srpska, No. 13-1-12/02-15/06 of 13 October 2006, the official record of the circumstances around the discovery of illegal transport of livestock in Donja Strmica, the Police Station Istocno Sarajevo, the Police Station for Traffic Safety Visegrad, No. 13-01/8- 257/06 of 14 October 2010, the Official note, the State Border Service, Field Office East, the State Border Service Unit Visegrad, No. 18-10-4-04-16/13 of 19 February 2007. b) The defense of the first defendant

Franjo Ilic’s defense attorney, Ljubović Bakir, has pointed out in his opening statement that the defendant Ilić Franjo did not commit a criminal act which he was charged with, and that the defense would prove that the disciplinary procedure has already been conducted before this Court for the same offences, and that it resulted in acquittal. The defense counsel further stated that he would prove that in that process, the disciplinary responsibility of the defendant was based solely on the testimonies of witnesses proposed by this indictment, that those witnesses refused, during the stated questioning, to answer the questions of defense and to thereby verify the authenticity of their testimony. The defendants have found the smuggled livestock doing their regular activities at the state border area, where they also found Sipovic Alem, the main witness of the prosecution, who, having learned that he would be indicted, accused the defendants to have allegedly received gifts and demanded money to let him smuggle goods on several occasions. The defense counsel pointed out that this was a case of an organized group of smugglers, whose activities had been interfered with by defendants, and in this way they wanted to get rid of them. In the opening

4 statement, the defense counsel indicated to the Court that no criminal proceedings had been instituted against Sipovic Alem, Arsic Vule, Arsic Duska and others, although they publicly stated before the competent police authorities that they had smuggled goods, and that they were called there only as witnesses. The defense announced that during the evidentiary proceedings they planned to propose to the Court to obtain for inspection the file of the disciplinary proceedings that had been conducted against Ilic Franjo as well as the cases of the Prosecutor’s Office No. KT-393/06 and KT-578/09, currently in the process against Sipovic Alem for the criminal acts of smuggling as stated in Article 214 Paragraph 1 and paragraph 2 of the CC FBiH, noting further that the criminal proceedings for the smuggling against Arsic Dusko, Arsic Vule and Novakovic Branislav have been finalized, and he would propose to review these cases too, as well as many other evidence.

After the evidence for the prosecution, the defense counsel of the defendant Ilić Franjo has presented its evidence, by way of interviewing witnesses Ivanic Zoran, Trifkovic Goran and Oputar Enes, after which presented material documents as evidence: Copy of vehicle registration issued in the name of Franjo Ilic number BH 2908504, notarized on 15 July 2010, Crime intelligence report, Police Agency, State Border Service Unit Visegrad No. 18- 10-4-04-15-98-_/07 from 01 March 2007, Crime intelligence report, Police Agency, State Border Service Unit Visegrad No. 18-10-4-04-15-98-_/07 from 07 March 2007, Official note, the State Border Service, Field Office East, a unit of the State Border Service Visegrad, No. 18-10-4-04-16-548 dated 7 March 2007, Official note, the State Border Service, Field Office East, a unit of the State Border Service of Visegrad, No. 18-10-4-04- 16-555 dated 8 March 2007, Official note, the State Border Service, Field Office East, a unit of the State Border Service of Visegrad, No. 18-10-4-04-16-264 dated 8 February 2007, Information regarding the operative information and instructions for action, the State Border Service, Field Office East, a unit of the State Border Service of Visegrad, No. 18-10-4-04- 15-98 / 1 dated 15 January 2007, Crime intelligence report, Police Agency, State Border Service Unit Visegrad, No. 18-10-4-04-15-98-01/07 from 04 January 2007, Crime intelligence report, Police Agency, State Border Service Unit Visegrad, No. 18-10-4-04-15- 98-02/07 dated 12 January 2007, Letter from the Border Police to the Court, Field Office East, the Border Police Unit Visegrad No. 18-10-4-34-4-1041/09 dated 18 October 2010, Letter from the Public Attorney of BiH, No. P-447/08 dated 5 January 2010, and attached to it a Verdict of Court of BiH , No. Gž-42/09 dated 24 November 2009, Letter from the Public Attorney of BiH, No. P-447/08 dated 05 January 2009, and attached to it a Verdict of Court of BiH, No. P-689/07 dated 29 January 2009, Letter of the Border Police of BiH, No. 04-4-50-33-2/07 from 19 July 2007, and attached to it a Decision of the Ministry of Security - The Police Board, No. UP-2-04-4-071-171-1/07 from 13 July 2007, Decision of the Border Police - Disciplinary Commission, No. DP-18/07 from 21 May 2007, Record of the questioning, the State Border Service - Office of Professional Standards and Internal Control No. 18-06-34-4-423/07 from 26 March 2007, Petition Sipovic Alem, addressed to the State Border Service of BiH, from 09 February 2007, Decision of the Basic Court in Visegrad - Department of the Magistrate Court No. 091-1-P-07-000099 from 8 February 2007, Letter of detention, the State Border Service, No. 18-10-4-05-04 from 8 February 2007, Receipt on temporary seizure without a warrant of the Court – i.e. the voluntary surrender of items, MUP RS, No. 13-1-12/02-15/06 from 13 October 2006, Official record of the police station for traffic safety Visegrad, No. 13-01/8-257/06 from 16 October 2006, Official record of the State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-2-04-sl.zab.-02/07 from 08 February 2007, Amendment of the official record of the State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-2-04-sl.zab.-05/07 from 22 March 2007, Official record of the State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-4-04- 25/15 from 23 March 2007, the State Border Service Announcement - Field Office East -

5 Unit for support and control Visegrad, No. 18-10-4-04-8-30 from 08 February 2007, Letter of the State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-4-04-8-33 from 08 January 2007, Initial report on the use of force from 08 February 2007, Opinion on the use of force State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-4-04-12-169 / 2 from 11 February 2007, Verdict of the Court of BiH No. KPS-206/05 from 13 January 2006, Record of the witness questioning, the State Border Service - Field Office East - Unit for support and control Visegrad, No. 18- 10-4-04-03/07 from 08 February 2007, Record of the witness questioning, the State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-4-04-07/07 from 09 February 2007, Record of the confrontation, the State Border Service - Office of Professional Standards and Internal Control No. 18-06-34-4-423/07 from 26 March 2007, Record of the witness questioning of the State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-4-04-8/07 from 12 February 2007, Record of the witness questioning of the State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-4-04-9/07 from 12 February 2007, Record of taking the victim statement, the State Border Service - Office of Professional Standards and Internal Control No. 18-06-34-4-423/07 from 09 February 2007, Record of taking the witness statement, State Border Service - Office of Professional Standards and Internal Control No. 18-06-34- 4-423/07 from 14 February 2007, Record of taking the witness statements, State Border Service - Office of Professional Standards and Internal Control No. 18-06-34-4-423/07 from 14 February 2007, Record of taking the witness statements, State Border Service - Office of Professional Standards and Internal Control No. 18-06-34-4-423/07 from 14 February 2007, Record of the witness questioning, State Border Service - Office of Professional Standards and Internal Control No. 18-10-4-04-6/07 from 09 February 2007, Official record of Police Station Rudo, No. 13-1-12/02 form 13 October 2006 with a letter form the Police Station Rudo No. 11-1-12 / 01-230-66/10 from 08 November 2010, Record of the suspect questioning at the Police Station Rudo, No. 13-01-/02 from 13 October 2006, Letter of the State Border Service - Field Office East - Unit for support and control of Visegrad, No. 18- 10-4-04-8-32 from 08 February 2007. c) The defense of the second defendant

The Defense attorney of the defendant Zoran Ikonic, attorney Dragiša Jokic, in his opening statement pointed out that key witnesses in this proceeding were persons who had given their statements to the Border Police in which they not only accused the defendants, but also admitted that they have committed several criminal offenses, while no criminal proceeding had been brought against them for those actions. The defense counsel pointed out that the acts of receiving gifts, are so-called necessary accomplice, and that it was strange that only the person who had received the gift was being charged, while the person who gave the gift was charged. During the proceedings, the defense would present the evidence concerning the credibility of proposed witnesses.

In the course of the trial, the defense counsel of the defendant Zoran Ikonic presented evidence by presenting the following documentation: Record of the witness questioning, State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10- 4-04-9/07 form 12 February 2007, Record of the witness questioning, State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-4-04-8/07 from 12 February 2007, Record of the witness questioning, State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-4-04-03/07 from 08 February 2007, Letter of the Court of BiH No. X-K-09/852 from 22 September 2010, Letter from the field office - East Unit of the State Border Service Višegrad No. 18-10-4-04-13-5-167/07 from 23 February 2007, Order for the investigation of the Prosecutor’s Office, No. KT-102/07 from

6 16 September 2009, Letter of the Prosecutor's Office No. KT-578/09 from 06 May 2010, Letter of the Prosecutor's Office No. KT-393/06 from 07 April 2010. d) The joint evidence of the defense for the first and second defendant

The defense of the first and second defendant filed in the court file, as joint evidence, the following documents: Record of the witness questioning, State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-4-04-5 / 07 from 09 February 2007, Record of the witness questioning, State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-4-04-07/07 from 09 February 2007, and Record of the witness questioning , State Border Service - Field Office East - Unit for support and control Visegrad, No. 18-10-4-04-6/07 from 09 February 2007.

3. Closing Arguments a) Prosecution

After the completion of the evidentiary proceedings, the prosecutor, in the closing arguments, put forward facts that were in his opinion established during the investigation and at the trial, proving the analysis of the physical evidence, as well as the subjective evidence - the testimony of witnesses who were heard during the evidentiary proceedings, finding that the evidence undoubtedly pointed out that the events had occurred as described in the disposition of the indictment. In relation to the evidence presented by the defense, the prosecutor pointed out that it was apparently aiming at discrediting the witnesses, but that the prosecution did not claim that they were moral citizens. The prosecutor explained that the policy of criminal prosecution of the Prosecutor's Office is such that it is firstly directed toward the officials, because the crime of accepting gifts and other forms of benefits is socially more dangerous than the criminal acts of giving gifts and other forms of benefits, and that the direct participants of these events, which were mainly the only witnesses, when events had the characteristics of this type of crime, are mostly persons involved in some criminal activity, and that the statements of such witnesses could not be ignored. The prosecutor also pointed out that the defense did not provide evidence to corroborate that the motive was revenge of the witnesses towards the defendants due to their impeccable conduct in performing their official duties. The prosecutor suggested to find the defendants guilty for the crimes they have been charged with in this indictment, and to punish them according to law.

b) The defense of the first defendant

The defense attorney of the defendant Franjo Ilic, attorney Ljubović Bakir, asserted in his closing argument that the defendant was not obliged to prove that he was not guilty, and that the defendants were not treated equally in accordance with the provisions of Article 14 of the CPC BiH. The defense counsel pointed out that the Prosecutor's indictment was based on statements given during the disciplinary proceedings, based on which we could not establish that the defendant Ilic was responsible. According to the defense, the witness statements given to SBS and internal control services differed in important points, and raised reasonable doubts about its veracity and credibility. Also, the defense objected that the people who participated in these criminal acts ware ranked as witnesses, and pointed out the violation of the principles of adversarial procedure and legality of criminal prosecution, noting that the witnesses should be charged for giving the gift because it was a case of necessary accomplice. Because of this defense has presented evidence to compromise

7 prosecution’s witnesses, trying to point out the inconsistencies in testimonies, and believed that court’s decision could not be based on such statements. In addition, the defense has in closing arguments challenged the legality of acts of recognition, because there were no alignment of persons with similar height, stature, clothes, and that Oputar and Ilic have differed from others in the line up, and moreover, being a small community, witnesses knew the defendants, because they encountered each other every day, and that defense has found that these actions made no sense. The defense has pointed to certain differences in the statements of prosecution witnesses, comparing certain statements with material evidence, arguing that the defendant Ilic could not be in two places at the same time, and concluding that the witness Sipovic was angry because his goods were confiscated, so he reported defendants. According to the defense the witness Sipovic himself confirmed that during the questioning at the trial, which was sufficient to treat his testimony as not credible because it was not fair and impartial. It was further noted that the trial fulfilled the principle of immediacy, and the Prosecutor’s Office could not use testimony given during the investigation, especially since the CPC of the BiH requires that the minutes should contain questions and answers, which in this case was not satisfied, and therefore, according to the defense, these statements could not be used. Defense argued that the prosecution did not provide evidence to conclude beyond a reasonable doubt that the defendant Ilic has committed the crime. c) The defense of the second defendant

The defense attorney for the defendant Zoran Ikonic, Dragiša Jokic, said in his closing arguments that he complained against the conduct of the Prosecutor's Office, noting that the witness statements were taken without warning that they were not required to give statements, the records of identification were, according to the defense, an attempt of officials to determine the structure of processing, but that was not done according to the CPC of the BiH, because when the defendant Ilić Franjo was identified by the witnesses, the defendant Zoran Ikonic also stood in the same row. Also, defense counsel pointed out that a number for a person was not entered in the record of the identification as an element of recognition, to which he objected as to the legality of such evidence. In terms of the crime of not reporting a criminal act by a person who performs official duties, counsel pointed out that these findings were obtained in the course of their duties. The officials of the Border Police upheld the Act on Border Control, which included control, crossing the state border and other issues related to border control. According to the defense, the act of not reporting a gift did not present a finding obtained during the conduct while on official duty. Also, the defense posed a question, what if Ikonić, along with Ilić, was the perpetuator of a crime of receiving a gift, to which prosecution did not present any evidence, as according to the defense, they should have first determined whether Ikonić was an accomplice, and if it was found that he was, than he had no obligation to report, for which there was no crime. The defense finally proposed that the Court acquit the defendant Zoran Ikonic.

4. Procedural decisions

On 31 March 2010, at the hearing when the opening of a main hearing was considered, the defense counsel of the first defendant, attorney Ljubović Bakir, has filed in the record an oral application for exemption of the prosecutor claiming that he did not act in accordance with the principle of equality, and a proposal to merge this procedure with proceedings against persons who were linked to this case, as follows: Sipovic Alem, Hodzic Semedin, Hrustemović Sead, Sipovic Edis, Sipovic Adis, Arsic Dusko, Arsic Vule and Branislav Novakovic.

8 The court informed the Chief Prosecutor of the Prosecutor’s Office of BiH on filed application for exemption, in order to decide on it, after which it received the Decision of the Prosecutor’s Office No. A-302/10 from 07 April 2010, which rejected the request for the exemption of prosecutor Miroslav D. Marković as ill-founded.

Having reviewed the proposal from the counsel of the first defendant for joining the proceedings, the Court issued a decision at the hearing on 9 April 2010, prior to reading the indictment, in which it dismissed it as ill-founded, finding that there were no formal legal requirements in the Article 25 CPC of the BiH to join the proceedings, as there were no criminal proceedings before this Court against the persons for whom joining was requested, nor an indictment was raised or confirmed.

The defense counsels for the defendants Franjo Ilic and Zoran Ikonic have challenged the legality of the minutes of the recognition during the trial and closing argument, including the Record of identification No. 18-10-4-04-6/07 dated 8 February 2010, stating that the number of a person who the witness Sipovic Alem pointed to during this proceeding was not entered in it, and that during the process of recognition the defendant Zoran Ikonicin stood in the same row of as the defendant Ilić Franjo. Also, the defense counsels of defendants Ilić Franjo and Ikonić Zoran contested the legality of other records of identification, which were presented as evidence at the trial by the Prosecutors’ Office, including: Minutes of identification No. 18-10-4-04-6-09/07 dated 23 February 2010, Record of identification No. 18-10-4-04-6-10/07 dated 23 February 2010, Record of identification No. 18-10-4-04-6-11/07 dated 23 February 2010, Record of identification No. 18-10-4-04-6-12/07 dated 23 February 2010, Record of identification No. 18-10-4-04-6- 07/07 dated 23 February 2010, Record of identification No. 18-10-4-04-6-08/07 dated 23 February 2010, Record of identification No. 18-10-4-04-6-04/07 dated 23 February 2010, Record of identification No. 18-10-4-04-6-03/07 dated 23 February 2010, Record of identification No. 18-10-4-04-6-06/07 dated 23 February 2010, Record of identification No. 18-10-4-04-6-05/07 dated 23 February 2010, Record of identification No. 18-10-4-04-6- 02/07 dated 23 February 2010, Record of identification No. 18-10-4-04-6-01/07 dated 23 February 2010, and Record of identification No. 18-10-4-04-6/07 dated 8 February 2010, noting that witnesses were not previously given instructions on the testimony, and that persons who were standing with the defendants Franjo Ilic and Zoran Ikonic during the recognition process were not even remotely similar to the defendants by their physical appearance, nor were they similarly dressed.

The Court's inquiry into the records of identification found that they were prepared through application the Article 152 of CPC BiH, and they contained all elements required by the law, i.e. they contained the name of an authority before which the action takes place, a location where the action took place, day and hour when the action began and ended, first and last names of persons attending and in what capacity, as well as the indication of criminal case in which action was taken, then the essential information about the course and content of the action taken, and eventually the signature of all persons required to sign it. Also, it is evident that, through application of provisions of Article 85 Paragraph 3 of CPC BiH, the witnesses described a face before the recognition, and then they were shown a number of persons including the defendants, thus the recognition has been conducted.

From the record of the identification No. 18-10-4-04-6/07 dated 8 February 2010, it follows the number of a person who the witness Sipovic Alem pointed at was not entered, as the defense highlighted. However, it is evident from the same record that the witness previously described the person to be recognized, while photographic evidence No. 18-10-4-04-07 dated 13 February 2007 has been attached to the minutes, clearly showing that the witness

9 Sipovic Alem pointing out the person marked with number 4, a number worn by the defendant Ilić Franjo.

It is for this reason that the Court believes that the record has a flaw, but that it is not of such a nature that would reduce the legitimacy of this evidence in terms of application of Article 85 of CPC BiH, particularly because there is an accompanying photo documentation that clearly portrays the act of recognition, or identification of the defendant Ilić Franjo by the witnesses Sipovic Alem, and the Court has rejected an objection by the defense pointing to this direction as unfounded, without examining the relevance of evidence, and included these records into evidence.

Further, this record and the attached photo documentation shows that in the process of identification of the defendant Ilić Franjo, the defendant Zoran Ikonic stood in the same row. Nevertheless, the Court has not established that the identification was carried out unlawfully. Namely, the above provisions do not explicitly prohibit that the defendants cannot stand in the lineup at the same time. In addition, the defendant Zoran Ikonic, at the time of the lineup of the defendant Ilić Franjo, did not have a status of the suspect, which was confirmed by the witness Simović Dalibor, who said at the hearing during the cross- examination by defense of the second defendant on 25 June 2010, that the order of the Prosecutor's Office to perform the act of identification of the second defendant came only after that.

The court found that the disputed police lineup was carried out in the lawful manner, at the facilities of the State Border Service Unit Visegrad, with the usual presentation of more than one person. These individuals included persons who were the approximate build and constitution as the defendants, and it is not realistic to expect to find the persons of the same build and constitution as defendants for the identification, so the objections of the defense that the lineup did not involve people of the similar build and physical appearance, could not bring into question the legality of this evidence in terms of Article 10 of CPC BiH.

In addition, the provision of Article 10 of CPC BiH has clearly defined the concept of illegal evidence, as evidence that was obtained or carried out in the manner prohibited by law. Evidence obtained through the violation of basic human rights and freedoms, as well as by substantial violations of procedural laws, are considered as unlawfully obtained evidence which may not constitute grounds for a judicial decision.

The issue of illegal evidence can be classified into three categories: - Evidence obtained through violation of certain fundamental rights and freedoms, - Evidence that the law expressly provides that should not be used in passing judicial decisions in criminal procedure and - Evidence which a criminal proceedings body would not have obtained without the data ensuing from the illegal evidence (so-called fruits of the poisonous fruit).

In the opinion of the Court, the above objection of defense may not bring into question the legality of the evidence in terms of this provision of law, so that it will be the subject of the discretion, which evidentiary value will be determined by the Court in connection with other evidence.

The Court came to the same conclusion in relation to the objection of defense of the first defendant, indicating that the minutes of the witness hearings, gathered in the investigation, were not by first entering questions, and then answers. According to the Court's opinion, this flaw does not detract from the legality of the evidence, pursuant to Article 152

10 Paragraph 2 of CPC BiH, given that the witness's statements were entered into the minutes about the circumstances in which witnesses were questioned, and that sometimes it is not possible to question a witnesses in such a manner, rather it is easier to ask the witness to tell everything he knew, and then possibly ask further questions and clarify certain circumstances.

In addition, bearing in mind the principle of immediacy, the Court has had an opportunity to examine witnesses during the trial, and the decision of the Court is primarily based on the testimony of witnesses given before the Court, not in the investigation.

5. The findings and reasoning of the Court

a) General considerations

Following the principle of free evaluation of evidence, guaranteed by the provision of Article 15 of CPC BiH, the Court has conducted the whole process in order to ensure that no innocent person is convicted, and to impose a criminal sanction to the perpetrator of the crime under the conditions laid down in CC of BiH, and in the statutory procedure set by the law (Article 2, Paragraph 1 of the CPC BiH).

In this sense, the Court considered the evidence presented in this case in accordance with basic principles of the CPC BiH, as follows:

The Article 3 Paragraph 1 of CPC BiH provides that the defendant is presumed innocent until found guilty. Accordingly, it is the responsibility of the prosecutor to prove the guilt of the defendant and the prosecution must prove that beyond a reasonable doubt, because in case there is any doubt regarding the existence of facts constituting the alleged criminal act, the decision has to go in favor of the defendant (Article 3 Paragraph 2 of the CPC BiH). Finally, the Court shall consider and evaluate evidence in favor of the defendant with equal attention, as well as evidence charging the defendant (Article 14 of the CPC BiH).

In accordance with these principles, and the principle of free evaluation of evidence, the Court has carefully considered all the evidence presented at trial by the prosecution and defense.

In evaluating the testimony of witnesses who testified in this proceedings, the Court has appreciated their attitude and behavior during the testimony, examined the consistency of their testimony in the courtroom with the one given during the investigation, compared the facts on which the witness testified to the facts that were established by other witnesses and material evidence to determine whether they were supported or challenged by other evidence in this case.

Also, the physical documents were tendered in this case and the Court has examined all evidence tendered in order to decide on their reliability and probative value.

It should be noted that the Court in making decision in this case took into account all the evidence presented at the trial and analyzed them in detail to the extent that was relevant to make a final decision about the culpability of the defendants to commit the underlying crime. The Court acted in this way conscious of the fact that the eventual in depth analysis of evidence, ultimately, would not affect the ultimately

11 determined facts and conclusions to which the Court came based on the evidence, and has given its detailed assessment in this verdict, all in terms of Article 15 of CPC BiH which stipulates the principle of free evaluation of evidence, with no formal restrictions or without any special rules of evidence. b) Evidence and assessment of evidence in the context of individual elements of the crime

In the indictment of the Prosecutor’s Office of BiH the defendant Ilić Franjo was charged with the criminal offense of receiving gifts and other forms of benefits as stated in Article 217 Paragraph 1 of CC BiH, while the defendant Zoran Ikonic was charged with the criminal offense of failure to report the crime or perpetrators of the crime as stated in Article 230 Paragraph 2 of CC BiH.

Common elements of the crime to receive gifts and other forms of benefits as stated in Article 217 Paragraph 1 of CC BiH

The provision of Article 217 Paragraph 1 of CC BiH expressly stipulates that this crime was committed when an official or responsible person in the institutions of Bosnia and Herzegovina, including the foreign official person, solicits or accepts a gift or other benefit, or accepts the promise of a gift or a benefit, to perform an act that it should not or to not perform an act that it should, in the scope of their responsibilities.

Thus, the existence of the crime to receive gifts and other forms of benefits as stated in Article 217 Paragraph 1 of CC BiH implies the existence of the properties of an official or responsible person in the institutions of BiH, which in this case was indisputably established against the defendant Ilić Franjo, which arises from the material evidence in the file.

Also, the above statutory provision, as an element of the crime, provides for the existence of a request or receipt of a gift or any other benefit or a promise to receive a gift or any other benefits by an official or a responsible person to perform an act that it should not or not to perform an act that it should, that is in the scope of their responsibilities.

Hence, an act carried out in this crime consists of a demand or a receipt of gifts, receipt of some other benefit, receipt of a promise of a gift, and a promise to receive any other benefit. Request for a gift may consist of any procedure from which it can be concluded that an official requests a specified consideration to execute or not to execute an official duty. Request or receipt of the gift should be associated with the official duty of an official or a responsible person, i.e. that an official is committed to execute or not execute an official duty under his official authority that it should not execute, or that it must execute. It is necessary that there is an agreement on service trade between the official or responsible person and a gift giver, even if tacit, i.e. a service is performed for a return service, a gift or a promise of a gift has been received to execute or not execute a duty. This offense is completed by requesting or receiving a gift or the promise of a gift, and it is not required that the illegal actions were undertaken for which the gift was received to establish its existence.

In relation to the above-mentioned elements of the crime, the Prosecutor’s Office

12 has examined a number of witnesses during the evidentiary proceedings, and presented the material documents, from which it follows that the defendant was on 12 October 2006 and 25/26 November 2006 in a certain place and performed official duties, including the official results of his work, and records of the identification, on the circumstances of the identification of perpetrators of the criminal act of receiving gifts and other forms of benefits as stated in Article 217 Paragraph 1 of CC BiH, and for those evidence the Court will give an assessment in further explanation of the verdict.

One of the disputed issues was whether the defendant Ilić Franjo, as an official in the course of 2006 in the municipality of Rudo, requested and received from a number of people various sums of money to enable them to, contrary to the regulations on conditions of import and transport of live animals, products and foods of animal origin, smuggle the livestock outside the border crossing, from the Republic of Serbia to Bosnia and Herzegovina.

In this regard, the Court has analyzed the evidence presented by the Prosecutor’s Office, primarily the statements of witnesses, because in essence, the Prosecutor’s Office thesis is solely based on witnesses’ testimonies.

To prove the claims of Prosecutor’s Office that the defendant Ilić Franjo on 12 October 2006 requested and then received the amount of EUR 200 from Sipovic Alem, to enable him to smuggled on the motor vehicle 7 heads of livestock outside the border crossing (the Clause 1 of the indictment), the Prosecutor’s Office has examined witnesses Sipovic Alem and Gibanica Zijad.

Witness Sipovic Alem said he repeatedly gave to defendant a certain amount of money, to enable him to illegally transported livestock across the border, but has no recollection of the exact amount. The witness said that he was stopped by the defendant Ilić on one occasion, when he was transporting livestock to Gorazde, on the bridge in Rudo, and that he gave him the amount of EUR 100, which he borrowed from Gibanica Zijad, who was then with him in the car, to transport the livestock on the motor vehicle, which was later seized by the officials of PS Visegrad. While giving this testimony, the witness explained how he had transported the livestock across the border, and he said that it was customary to send someone ahead to inform them the location of patrols, and that he usually knew when the defendant Ilic was in the shift, as they would have previously confirmed that by the telephone.

The witness Gibanica Zijad said that he could not fully confirm that before the Court at the trial, and said that on that occasion, while he was in the car with Sipovic Alem who drove it, when they were stopped by police, he had not heard Sipovic’s discussion with the police when he got out of the vehicle because the vehicle's window was closed. The witness could not remember the year when the incident occurred, he remembered only that it was the night, and he confirmed that Sipovic said that he needed money to borrow for the police and that he mentioned Ilic. The witness added that they continued to drive, but than they were stopped by the Visegrad police, and that they all went somewhere, and then Semedin Hodzic and Sead Hrustemović appeared with a truck full of livestock, which were hidden somewhere, and the police had brought them.

The Court compared this evidence with testimony that these witnesses made during

13 the investigation, and found some inconsistencies and contradictions.

In the Record of witness hearing No. 18-10-4-04-03/07 dated 8 February 2007 the witness Sipovic Alem said that in the summer of 2006 he transported the livestock, 3 cows and 4 calves from Serbia to Bosnia, to Mokronog, and then loaded them onto a truck and drove to Gorazde, along with Gibanica Ismet, Hrustemović Sead and Hodzic Semedin. In Strmica they drove off the main road, and left the stock on the side road, because the border patrol police was located in Strmica, after which the witness, along with others, returned to Priboj, driving the car "Jetta", which was brought by Gibanica Zijad. The witness said that around 8pm the defendant Ilic phoned him and asked whether his livestock was in Strmica, and after confirming that it was, the defendant Ilić asked for money and to come at 12 am on the bridge in Rudo. The witness went to the bridge driving the vehicle "Jetta" with Gibanica Zijad, and explained that previously Gibanica Ismet, Hrustemović Sead and Hodzic Semedin had taken the livestock towards Strmica and that Ilic Franjo stopped them on the bridge and asked where Alem was and whether he would come. A witness said for the record that the defendant Ilic sought EUR 300 on that occasion, which the witness refused, but gave him EUR 200, in denominations of EUR 50. Also, the witness then said that his livestock was later seized by the Visegrad police.

When this statement, given at the trial, is compared with the statement given during the investigation, there are evident differences, which cast doubt in the truthfulness of the given testimony. Particularly so as witness during a hearing before the Court did not remember the relevant circumstances and details, the exact amount, denomination, etc. Moreover, witness Sipovic said during the investigation that he gave to the defendant EUR 200, not mentioning that he borrowed EUR 100 from Gibanica Zijad, who was with him at that time, while he said on the trial that he gave EUR 100 to the defendant Ilic, which he borrowed from Gibanica Zijad.

Also, the Court also considered the testimony of witnesses Gibanica Zijad as a contradictory and ambiguous. Specifically, the witness told the Court that he was in the vehicle during that critical time and that he could not hear the conversation between Sipovic and the defendant Ilic, because the window of the vehicle was shut, while during the investigation the witness said, for the Record of witness hearing No. 18-10-4 - 04-9/07 dated 12 February 2007, that the window was open and that he heard the defendant Ilić requesting EUR 300 from Sipovic, and that Sipovic was telling him that he will give him EUR 200, and that he borrowed EUR 100. From the selected record, it is also clear that the witness Gibanica Zijad did not see with which officer did Sipovic speak, because it was the night, which was confirmed by the witness during the hearing at the trial, and that Sipovic told him that it was a police officer Franjo. Thus, one can say that this witness has no direct knowledge with whom Sipovic Alem was talking to, to whom he gave money and why.

These contradictions are not negligible in terms of reaching a firm conclusion that stems from a clear and reliable testimony and would exclude any reasonable doubt regarding the event and the perpetrator.

The Prosecutor’s Office did not present to the Court other evidence in these circumstances, apart from the physical evidence - work order of the state border service unit Visegrad No. 18-10-4-02-3450/06 from 12 October 2006, with an enclosed report, signed by Ilić Franjo and Oputar Enes, which entails that the defendant Ilic on 12 October 2010, together with Oputar Enes performed assigned

14 tasks in the period from 4pm to 12am, and that in the period from 5pm to 7.30pm they patrolled the route Visegrad-Drinsko-Pastan Brdo-Sokolovići-Mrsovo, that in the period from 7.30pm to 8.10om they were located at KT Rudo - at the petrol station and in the period from 8.10pm to 9.00pm they visited the area of Strmica, because of a tip that a suspicious vehicle was on the move in that area, and that they had no contact in the field.

The Court has carefully considered the above pieces of evidence, bringing them into mutual relationship, and could not determine with certainty that the events happened in a way that the Prosecutor’s Office claimed. Specifically, from the testimonies of these witnesses the Court could not determine beyond reasonable doubt that the defendant Ilić Franjo on 12 October 2006 performed a criminal offense of receiving a gift or other forms of benefits, i.e. that he requested a gift from Sipovic Alem in the form of money, or that he received from him the amount of EUR 200 to allow Sipovic to smuggle 7 heads of livestock. This is primarily because the testimonies of these witnesses were not clear, accurate, mutually consistent, and convincing enough in terms of monetary amounts, currencies and the circumstances under which the money was given, and they were not supported by any physical evidence. The amount of EUR 200, which the Prosecutor’s Office alleges in count I of the first indictment, witnesses Sipovic and Gibanica only mentioned in the investigation, while they spoke of a completely different amount before the Court, which has cast a doubt on the authenticity of their testimony. Specifically, the Court believes that the witnesses should have remembered the amount of money, if it had really been given. The Prosecutor’s Office failed to present to the Court other reliable evidence about the amount of financial benefit that was allegedly given to the defendant Ilic, and the circumstances in which it was given, i.e. if it was given at his express request or he possibly received it tacitly.

In relation to the factual allegations in the count I item 2 in the indictment, that the defendant Ilić Franjo on 26 November 2006 requested, and afterwards received from Arsic Vule the amount of KM 650, to allow Sipovic Alemu to smuggle 23 heads of livestock in the motor vehicle outside the border crossing, and statements from the count I item 3 of the indictment that defendant, on an unspecified date, requested and received from Arsic Vule the amount of EUR 80, and from Novakovic Branislav the amount of EUR 20, to allow Arsic Vule to smuggle 5 heads of livestock on the motor vehicle outside the border crossing, the Prosecutor’s Office has heard the witnesses Branislav Lazovic, Arsic Vule, Branislav Novakovic, Sipovic Alem and Arsic Dusko.

The witness Sipovic Alem said, in relation to these circumstances, that on one occasion he moved livestock from Serbia to Bosnia and headed from Mokronog - Municipality Rudo, after which Arsic told him that he saw defendant Ilic and Ikonic in the vehicle, and because of that the witness fled into the woods, and then approached the defendants to strike a deal. The witness stated that the defendant Ilic sought KM 1,000, because he had about 20 calves, and that he gave him KM 650 or KM 850, which he borrowed from Arsic Vule, explaining that the money was given in a bar in Rudo. In addition, the witness said that there were several cases that he gave money to the defendant Ilic. The Court considered the clarification of witness Sipovic Alem, in which he explained the way of transportation of livestock across the border, namely that they would send someone to go ahead, that they found a police officer with whom they could strike a deal, that they would pay and carry on. If unsuccessful, they would hide. In addition, the witness stated that he knew when

15 the defendant Ilic was in the shift, because they would talk on the phone, and that he did not report the defendant for the extortion earlier because the amounts he paid were lower. Witness also said at the end of the hearing that he did not remember that he signed the minutes of the witness hearing in the investigation, and that was aware of the possibility of criminal prosecution, but that he agreed with it, because he was angry with the latest conduct of police.

The witness Arsic Vule said that one week Sipovic Alem called him, at about 5.30am, to bring him "some money" to Mokronoge, and that he did go to Mokronoge, where he met Sipovic with the defendant Ilic, adding that the Sipovic already agreed with the defendant Ilic about the amount of money. The witness said that soon after that were all sitting in a bar in Rudo, but that money was given to the defendant Ilic in front of the Dom Zdravlja in Rudo, as per Sipovic’s instructions. However, this witness said that on that occasion KM 1,000 was given, neither KM 650 nor KM 850, as claimed by the witness Sipovic Alem. This witness could not either remember the year when it happened, or denomination or currency in which the money was given.

The witness Branislav Lazovic said in relation to the above circumstances that he could not recall the year nor the date, but that he did remember that on one occasion he was with Arsic, when Sipovic called Arsic about 5.30am, and asked Arsic to bring him the money in Mokronoge, and that the witness went with Arsic to Mokronoge. As per witnesses, they spot Sipovic Alem and 2 police officers there, who stopped Sipovic, and that they negotiated, however, the witness did not hear what was "negotiated". The witness confirmed that later Ilic, Sipovic Alem and Arsic Vule were sitting in a bar, and that Arsic Vule said that Sipovic was begging him to borrow him KM 1,000 to give it to these police officers to let him transport the goods. The witness did not see the act of giving the money, nor he had any other direct knowledge of it, on which the Court could base its decision.

For the above incident, the witness Branislav Novakovic said that he heard about it, i.e. that he heard that Sipovic gave KM 1,000 to Ilic and Ikonic, and he was present when Sipovic called Arsic in connection with the departure to Mokronoge. It is obvious that the said witness has no direct knowledge whether the defendant Ilić sought certain amount from Sipovic Alem, nor if he received it, to whom he gave the money and where, in what amount etc.

The Court took the same conclusion in relation to the testimony of Arsic Dusko, who also presented his indirect knowledge before the Court, or a knowledge from the stories told in his bar in Rudo, although the witness said that he remembered that on one occasion the defendants Ilić and Ikonic sat together with Alem Sipovic, Dusko Arsic, Branislav Lazovic and Branislav Novakovic in his bar, and that he heard from his brother Arsic Vule that Sipovic Alem transported the livestock and that he had to give money.

The Court could not rely on the testimonies of Alem Sipovic and Vule Arsic, who could have the direct knowledge, according to the indictment, about the said event from the count I item 2, primarily due to the fact that given testimonies did not match in terms of the amount money allegedly given to the defendant Ilić Franjo, in the presence of the defendant Zoran Ikonic; they did not remember the denomination or the currency, which led to the uncertainty in determining the facts, which must be determined in a clear and reliable way. The testimonies of these witnesses could not

16 strengthen the testimony of witnesses Branislav Lazovic, Branislav Novakovic and Dusko Arsic, as they expressed their indirect knowledge before the Court, since they did not directly hear the agreements, or the request of the defendant Ilic, by which he demanded money from Sipovic Alem, nor they saw that money was given and in what amount. The witness Novakovic also said that he was present when Sipovic called Arsic, which was denied by witnessed Arsic and Lazovic. Such knowledge from the stories cannot be taken as reliable and objective observations, which could be reproduced by witnesses before the Court in a convincing way, which is why the Court did not trust them.

The fact of a decisive importance was that witness Sipovic Alem could not before the Court directly confirm the amount that he gave to the defendant Ilic, which was stated under count I item 2 in the indictment, as he stated that it was the amount of KM 650 or KM 850, and that the defendant Ilić sought KM 1,000, while in the investigation, as per Record No. 18-10-4-04-03 / 07 from 08 February 2007, he claimed that the defendant Ilić sought KM 2,000.

In respect of the above statements of witnesses, the Court found that they were contradictory in the testimonies given during the investigation or in their interconnection.

The witness Arsic Vule said during the investigation, as per the Record of identification from 23 February 2007, and per the Record of witness hearing No. 18- 10-4-04-5 / 07 dated 9 February 2007, that he gave KM 650 to the defendant Ilic on 26 November 2006, while at trial he claimed that he gave KM 1,000, unable to remember the year, the date, the currency nor the denomination. Also, the witness claimed at the trial that Branislav Lazovic was with him on that occasion, while he claimed in the investigation that Branislav Novakovic was also present.

The witness Branislav Lazovic confirmed on the trial that the defendant Arsic Vule gave KM 1,000 to the defendant Ilic, while he said in the investigation that Ilic sought KM 800, and that Arsic gave him KM 650.

Thus, the Prosecutor’s Office did not provide reliable evidence in relation to the claim that the defendant Ilić Franjo on 26 November 2006 requested, and afterwards received from Arsic Vule the amount of KM 650, to allow Sipovic Alem smuggle 23 heads of livestock to outside the border crossing in a motor vehicle. Firstly, the presented evidence does not prove the criminal offense of receiving gifts or other forms of benefits, i.e. that the defendant Ilić Franjo requested or received a gift from Arsic Vule. The witness statements are inconsistent in terms of the decisive facts, the witness Arsic Vule claims that the witness Sipovic Alem agreed with the defendant Ilic about a sum of money that should be given, while the witness Sipovic did not confirm, i.e. he said that he does not even remember who gave money to the defendant Ilic, and due to the limitations of material evidence in these circumstances, the Court had to use the principle "in dubio pro reo" and find that the stated element of a crime was not proven.

In terms of the events from the count I item 3 of the indictment, that the defendant Ilić requested, on an unspecified date in autumn 2006, and then received an amount of EUR 80 from Arsic Vule, and EUR 20 from Novakovic Branislav, to allow Arsic Vule to smuggle 5 heads of livestock outside the border crossing on a motor vehicle, the Court took under considered the testimonies of witnesses Arsic Vule, Branislav

17 Novakovic, who might have a direct knowledge, and the testimony of witnesses Branislav Lazovic and Arsic Dusko.

In relation to these Prosecutor’s Office claims, witness Arsic Vule said that he was transporting 4 heads of livestock on one occasion, along with Branislav Novakovic, and that they were stopped by the defendant Ilic. The witness testified that the defendant Ilic sought KM 100 to let them go, and that they gave KM 80, because that was all the money they had with them, adding that the defendant Ilić subsequently asked Novakovic for the remaining amount of KM 20.

The witness Branislav Novakovic stated differently, and said before the Court that he gave EUR 20 to the defendant Ilic than, and that he owed him EUR 20, which is why the defendant Ilic called him later by phone, and that he paid the rest.

The witness Branislav Lazovic said in the relation to this event that they were transporting 5 heads of livestock, and that he participated in the transport, along with Arsic Vule and Branislav Novakovic. The witness said they noticed the defendant Ilic on the patrol at an intersection by the bar Anfora, along with some other official whom the witness did not remember, and that Novakovic Branislav went to ask them if they could pass, when the defendant Ilic asked for KM 60. The witness said that Novak then gave 40 or 20 KM or EUR, but he did not remember the currency. Also, the witness said that Ilic repeatedly called Novakovic Branislav later for the rest of the money, and he thought that Novak paid the rest of the money.

The witness Dusko Arsic said that the defendant Ilic also called him for the amount of EUR 20 or KM 20, which was owed by Novakovic Brane, but that he refused to pay. Witness Arsic Dusko had no direct knowledge, but said that he heard from his brother, Arsic Vule, that Novakovic Branislav paid EUR 60 to the defendant Ilić, and still owed EUR 20, and that the defendant Ilić subsequently came two or three times came to the bar to request these EUR 20 from witnesses, and called 5 to 10 times before on the phone, but the witness did not give him that money.

In relation to the above testimonies, the Court concluded that they were incomplete and contradictory in relation to evidence given during the investigation. Witnesses spoke about the amounts of EUR 80 and EUR 20 during the investigation, which was the bases of the Prosecutor’s Office indictment, however, witnesses did not confirm before the Court these amounts or currency.

Therefore, the Court could not accept the testimonies of these witnesses in relation to the claim of Prosecutor’s Office under Count I item 3 of the indictment, since they did not coincide in important facts, they did not match in terms of the monetary amounts, currencies, or even the heads of livestock that was transported. Specifically, the witness Arsic Vule claims that KM 80 was given on that occasion, while the witness Novakovic claims EUR 20 was given, which is why it cannot be concluded with a certainty about what was the amount, nor the accuracy of Prosecutor’s Office statement that EUR 80 was given on that occasion. In addition, the witness Arsic speaks of transportation of 4 heads of livestock, while the witness Lazović speaks about 5 heads of livestock. It is obvious that the witness testimonies are essentially different, and the Court could not accept them as true and accurate, as well as the statements from witnesses Branislav Lazovic and Arsic Dusko, who did not immediately see that the money was even given to the defendant Ilic.

18 Therefore, it is evident that the witnesses did not remember the exact amount of money allegedly given to the defendant Ilić Franjo, for which the Prosecutor’s Office claims that witnesses have direct knowledge, nor it could be determined in a clear and reliable way where and to whom money was given, who was present. It can be concluded that many details are lacking to describe the offense, i.e. to confirm the indictment.

Due to the above stated, the presence of the essential elements of the crime to receive a gift or other forms of benefits may not be confirmed, i.e. the fact whether the defendant Ilić requested or received money, as the Prosecutor’s Office claims.

In addition, in Count I item 3 of the indictment, the Prosecutor’s Office used the claim "undetermined date," so the testimonies of witnesses, heard under these circumstances, could not be exactly correlated with this event, which is why it can be concluded that the mentioned thesis of the Prosecutor’s Office is only in the domain of an assumption.

In this situation, when the Prosecutor’s Office claims are based solely on evidence of a subjective nature, without any relevant physical evidence, these statements must be of such nature that they do not leave the slightest doubt as to their accuracy or authenticity.

In addition to this, the Court notes that the Prosecutor’s Office failed to present evidence whether the witnesses Sipovic Alem, Arsic Vule and Novakovic Branislav were in contact by phone with the defendant Ilić Franjo, and to determine the telephone number used by the defendant Ilic, and phone numbers used by witnesses, then to submit the call listings, with the times of call, to possibly determine whether witnesses did communicate with the defendant in days in which the Prosecutor’s Office claims that this incident occurred. With this evidence, as evidence of a physical nature, it would be able to possibly supplement the statements of witnesses, and to make the claims of the Prosecutor’s Office more plausible.

The Court considers it necessary to point out that when it evaluated the testimonies of witnesses, it took into the account the presentation of witnesses, which was not convincing, the behavior of witnesses and their incomplete answers, refrain from answering certain questions, selective memories etc., noting that the Court found that these deficiencies in the testimonies were not only the result of their inability to remember, but also the deliberate non-disclosure of certain moments of the alleged events.

In addition, in the context of truthfulness of these witnesses testimonies, the Court took into account the indisputable fact, to which the defense pointed out throughout the proceeding, that witnesses confirmed that each of these cases was involved with the illegal importation of livestock, that the livestock was often seized by authorized officials, and that these persons were convicted of a crime of smuggling as stated in Article 214 Paragraph 2 of CC BiH (Dusko Arsic, Arsic Vule and Branislav Novakovic), which is evident from the Court’s BiH Decision No. KPS-206/05 from 13 January 2006, which was filed as evidence by the defense of the first defendant.

This case also raises the question of interests of witnesses of the Prosecutor’s Office to testify to the detriment of the defendant, considering that in the factual substance of the indictment, as well as per their own statements, they appear as perpetrators of

19 the crime of smuggling, which was not a part of this indictment, and as perpetrators of the crime of giving gifts and other forms of benefits, and for this act, diametrically oppositely, was charged the defendant Ilić, as a criminal offense to receive gift and other forms of benefits. Precisely because of this issue, the Court casts doubt on the veracity and objectivity of the testimonies of these witnesses, considering that the same appear as accomplices to the alleged actions and may have interests to put the blame on the defendants.

So, using the general life experience, the Court also took into consideration the personality of the witnesses, their previous activities, having found that such information give a different connotation to their statements, from those given by the Prosecutor’s Office. For example, witness Sipovic Alem said that he was angry by the seizure of livestock, and that was why he reported the defendant Ilić Franjo.

The court may hypothetically consider that there were cases of receiving and giving gifts and other forms of benefits during the import of livestock across the state border of Bosnia and Herzegovina, but the Prosecutor’s Office did not provide clear and indisputable evidence that the defendant Ilić Franjo was present at the time and place stated in the indictment, requesting or receiving money from witnesses Sipovic Alem, Arsic Vule and Branislav Novakovic.

In addition to the testimony of Prosecutor’s Office witnesses who testified about the alleged events themselves, the Court also considered the testimony of witnesses Džida Novak and Simovic Dalibor, who testified about taking official actions during the investigation in this case, the testimony of the witness Medović Bojan, and found that these testimonies did not provide any essential facts for decision- making process in this criminal matter. Thus, the Court considers it unnecessary to analyze them in detail, except the testimony of the witness Simović Dalibor, who said that he examined the vehicle and vehicle permit of the defendant Ilić Franjo, and found that it is the same vehicle for which the witness Sipovic Alem said that the defendant Ilic was in with his family while he was giving him money, and that statement, in the opinion of the Court, did not have any probative value, given the above testimony of witness Sipovic Alem, and that witness Simović Dalibor did not have any direct knowledge in this direction.

On the other hand, the witnesses of the defendants Ilic Franjo, Ivanic Zoran Trifkovic Goran, and Oputar Enes, also officers of the Border Police of BiH, said that they had no direct knowledge that the defendant Ilić demanded or received a gift.

So, the witness Oputar Enes, said that on the night of 12-13 October 2006 he worked in a shift from 4.00pm until 12.00am, with the defendant Ilić Franjo, and that he saw Sipovic Alem, Gibanica Zijad and Arsic Vule on 12 October 2006, that he was with the defendant Ilic on the bridge in Rudo the whole time, and that he did not see whether he talked with any of the above persons or received money. The witness said that the team returned to Visegrad around 11.30pm, in order to write the logs and notes by the end of the shift, and that they dispersed around 12.00am.

Witnesses Ivanic Zoran and Trifkovic Goran confirmed that on the 12-13 October 2006 they saw the defendant Ilic and Oputar Enes, around 11pm before they went to look for livestock, which was reported, towards Strmica. Witnesses explained that this location was approximately 17-18 km away from the station, and

20 that the distance between the bridge in Rudo and Visegrad is approximately 46 km and that one can reach Visegrad from Rudo, on an average, in about half an hour to 40 minutes. Witnesses also said that they head back to the station approximately an hour or 45 minutes before the end of the shift, to write reports.

The Court found testimonies of these witnesses objective, not doubting their authenticity, since they were supported by the physical evidence, and that the Court gave them credence, especially since they favor the defendant Ilić, which is consistent with the principle "in dubio pro reo".

The physical evidence of the Prosecutor’s Office, the Work Order No. 18-10-4-02- 3450/06 from 12 October 2006, including the Report from 12 October 2006, and Work Order No. 18-10-4-02-3998/06 from 24 November 2006, including the Report from 25/26 November 2006, and the Tour Plan No. 18-10-4-02/06 from 25 November 2006, indicate that on 12 October 2006 the defendant Ilić Franjo was in the shift with Oputar Enes as follows: from 5.00pm to 7.30pm the tour route Visegrad-Drinsko-Pastan Brdo-Sokolovići-Mrsovo, from 7.30pm to 8.10pm at KT Rudo, at the petrol station, from 8.10pm to 9.00om the tour of Strmica, and that on 25/26 November 2006 the defendant Ilic was in the shift with the defendant Zoran Ikonic at the route Ustibar-Mioce-Mokronozi-Bagrevine-Olandići, where nothing suspicious was observed.

The above evidence are associating the defendants with the locations mentioned by Prosecutor’s Office witnesses, but considering the testimony of defense witnesses of the first defendant-and the absence of other decisive evidence, it is not enough to conclude beyond a reasonable doubt that the events played the way the Prosecutor’s Office claims.

From the Record of identification, which was filed by the Prosecutor’s Office, it follows that the witnesses identified the defendants claiming that they committed the acts as charged by the Prosecutor’s Office, however, they did not prove the decisive facts. In the opinion of the Court, the records of identification are derivative or formalized statement about the witness knowledge, which did not in a reliable and convincing manner provide the knowledge of the incriminating acts. The Court accepts the fact that the witnesses knew the defendants, since they carry out official duties in an area where some of the witnesses reside or are engaged in activities related to the transportation of livestock, and that they were often stopped and controlled by defendants. However, in the context of the above assessment of the testimony of witnesses, the Court concluded that the records of identification does not prove decisive facts on the execution of the offense as described by the indictment, especially because the Prosecutor’s Office did not present any evidence that would connect those records with any factual act of the defendants.

Also, in terms of the records of witness hearing during the investigation, the Court emphasized that they are just the formalization of witness statements, therefore, a witness is still a source of information, which was already assessed above when the subjective evidence was evaluated, and the Court assessed the records of the witness hearings during the investigation only in terms of checking the truthfulness of witness testimonies given before the Court.

After the above analysis of the presented evidence, the Court puts forward a general view that the Prosecutor’s Office assumptions and the count I of the indictment are

21 in the domain of presumptions, without a solid, substantive and reliable evidence and credible witnesses, and the Court concluded, after analyzing all the presented evidence at trial, both individually and in their mutual respect, and guided by the principle "in dubio pro reo", that the Prosecutor’s Office failed to prove beyond a reasonable doubt the existence of all elements of the crime to receive gift and other forms of benefit as stated in Article 217 Paragraph 1 of CC BiH.

As the Prosecutor’s Office failed to prove that the defendant Franjo Ilic committed the said crime, the question of the criminal offense of failure to report the crime or perpetrators of the crime as stated in Article 230 Paragraph 2 of CC BiH came before this Court.

Common features of the criminal offence of failure to report the crime or perpetrators of the crime as stated in Article 230 Paragraph 2 of CC BiH DOVDE The provision of Article 230 Paragraph 2 CC BiH expressly stipulates that this crime was committed when an official or responsible person fails to report the crime for which he learned while performing his duties, if that crime under the law of Bosnia and Herzegovina may result in a five years prison sentence or more severe punishment.

The essence of this offense contains elements that the perpetrator is official or responsible person, that the perpetrator is aware of the criminal offense in the performance of his/her duties, and that a failure to report the crime under BiH law may impose imprisonment for 5 years or more.

This form of failure to report the crime must include all circumstances regarding the facts, which entail the probability of committing criminal acts, then such circumstances that indicate that it is a serious crime, and finally the awareness that it the offender learned about the above circumstances while performing official duties.

Considering that the defendant Franjo and Ilić Zoran Ikonic are charged on the same factual basis, and that the Court found that the defendant Ilić Franjo have not committed a criminal offense of receiving gifts and other forms of benefits set out in Article 217 Paragraph 1 CC of BiH, it is evident that it one element of the crime the defendant Zoran Ikonic is charged with is fulfilled, namely learning about a criminal offense in the course of official duties, which is why the decision, as stated in the dispositive part, had to be made.

Given that one element of the crime charged to the defendant Zoran Ikonic is obviously missing, it is needless to go into the consideration of guilt of the defendant for that crime.

Consequently, the Court has applying the principle "in dubio pro reo" in taking the decision as in the disposition.

Court noted that by way of assessment of all evidence in the above manner it has not found that the defendant Franjo and Ilić Zoran Ikonic are innocent beyond reasonable doubt, but in terms of the offences in question, the evidence presented by the prosecution lack the necessary strength of conviction that the defendant committed actions that they are charged with by the indictment. Therefore, in this case the Court found that an application of the principle "in dubio pro reo" is

22 reasonable. It is the rule saying that the facts which could incriminate the defendant must be established with absolute certainty, that "beyond a reasonable doubt", and if there is some suspicion in relation to these facts, as in this case the Court found that such doubt exists, they may not be taken as established. On the other hand, the premise of this rule below is that the facts in favor of the defendant are taken as established, even if they are only probable.

Specifically, if the available evidence points to certain findings regarding the fact that the defendant committed the criminal act which is subject to prosecution, he/she must be released on the basis that, so the Court may not and must not issue an acquittal, unless firmly and without any doubt convinced in the guilt of the defendant.

Observing these principles, and considering that the Office of the Prosecutor has not proven the guilt of the defendants beyond a reasonable doubt, by applying Article 284 point c) in conjunction with Article 3 CPC BiH, it is necessary to make a decision of acquittal.

6. Decision on costs of criminal proceedings

Given the decision of acquittal of defendants of the charges, the Court has applied provisions of Article 189 Paragraph 1 CPC BiH and decided that the costs of criminal proceedings and the necessary expenses of the defendant, as well as the necessary expenses and rewards of their defenders will be borne by the budget.

RECORD-TAKER Judge

Mirela Gadžo Marijanović Anđelko

LEGAL REMEDY: An appeal of the verdict may be appealed to the Appellate Chamber of the Court within 15 (fifteen) days from receipt thereof.