COURT OF BOSNIA AND HERZEGOVINA · COURT OF BOSNIA AND HERZEGOVINA . Ref. X-K-08/516-1 . Sarajevo,...

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COURT OF BOSNIA AND HERZEGOVINA Ref. X-K-08/516-1 Sarajevo, 26 June 2009 IN THE NAME OF BOSNIA AND HERZEGOVINA The Court of Bosnia and Herzegovina, sitting as the Panel composed of Judge Branko Perić as the Presiding Judge, and Judges Esad Fejzagić and Fikret Kršlaković as the Panel members, with the participation of the Legal Officer Denis Podžić as the record taker, in the criminal case against the Accused Ibrahim Nuhanović and Sanel Pezić, for the criminal offence of Organized Crime in violation of Article 250(2) of the Criminal Code of Bosnia and Herzegovina (CC of BiH) in conjunction with the criminal offence of Smuggling of Persons in violation of Article 189(1) of the CC of BiH, deciding upon the Indictment of the Prosecutor's Office of Bosnia and Herzegovina No. KT-158/08 dated 12 June 2008, following the public and oral hearing, in the presence of the Prosecutor of the Prosecutor's Office of Bosnia and Herzegovina, Thierry Pons, in replacement of the acting Prosecutor Diana Kajmaković, the Accused Ibrahim Nuhanović and his Defense Counsel Fahrija Karkin, as well as the Accused Sanel Pezić and his Defense Counsel, Attorney Edin Šabanović from Sarajevo, rendered and on 26 June 2009 publicly announced the following: V E R D I C T The Accused: IBRAHIM NUHANOVIĆ, aka “Ibro”, son of Husejn and mother Salima, nee Zehić, born on 2 May 1964 in the village of Vitinica, of Bosniak ethnicity, citizen of BiH, driver by occupation, completed Secondary School – transportation sector, widower, father of two adult children, of average financial standing, permanent resident in Vitinica bb, the municipality of Sapna, was sentenced to a term of imprisonment of 2 (two) and 4 (four) months for the criminal offense of Illegal Crossing of the State Border in violation of Article 249(2) of the CC of SFRY, which he served; The Accused SANEL PEZIĆ son of Nusret and mother Zurijeta nee Jajčević, born on 28 November 1977 in Tuzla, of Bosniak ethnicity, citizen of BiH, worker by occupation, completed elementary school, married, father of two minor children, of indigent financial standing permanent resident in the village of Šahbazi bb, Gornja Kalesija, the municipality of Kalesija, was sentenced by the Cantonal Court in Tuzla to a term of imprisonment of 4 (four) years for committing the criminal offenses of two attempted murders and inflicting a serious bodily injury, which he served, ARE GUILTY 1

Transcript of COURT OF BOSNIA AND HERZEGOVINA · COURT OF BOSNIA AND HERZEGOVINA . Ref. X-K-08/516-1 . Sarajevo,...

Page 1: COURT OF BOSNIA AND HERZEGOVINA · COURT OF BOSNIA AND HERZEGOVINA . Ref. X-K-08/516-1 . Sarajevo, 26 June 2009 . IN THE NAME OF BOSNIA AND HERZEGOVINA . The Court of Bosnia and Herzegovina,

COURT OF BOSNIA AND HERZEGOVINA Ref. X-K-08/516-1 Sarajevo, 26 June 2009

IN THE NAME OF BOSNIA AND HERZEGOVINA The Court of Bosnia and Herzegovina, sitting as the Panel composed of Judge Branko Perić as the Presiding Judge, and Judges Esad Fejzagić and Fikret Kršlaković as the Panel members, with the participation of the Legal Officer Denis Podžić as the record taker, in the criminal case against the Accused Ibrahim Nuhanović and Sanel Pezić, for the criminal offence of Organized Crime in violation of Article 250(2) of the Criminal Code of Bosnia and Herzegovina (CC of BiH) in conjunction with the criminal offence of Smuggling of Persons in violation of Article 189(1) of the CC of BiH, deciding upon the Indictment of the Prosecutor's Office of Bosnia and Herzegovina No. KT-158/08 dated 12 June 2008, following the public and oral hearing, in the presence of the Prosecutor of the Prosecutor's Office of Bosnia and Herzegovina, Thierry Pons, in replacement of the acting Prosecutor Diana Kajmaković, the Accused Ibrahim Nuhanović and his Defense Counsel Fahrija Karkin, as well as the Accused Sanel Pezić and his Defense Counsel, Attorney Edin Šabanović from Sarajevo, rendered and on 26 June 2009 publicly announced the following:

V E R D I C T The Accused: IBRAHIM NUHANOVIĆ, aka “Ibro”, son of Husejn and mother Salima, nee Zehić, born on 2 May 1964 in the village of Vitinica, of Bosniak ethnicity, citizen of BiH, driver by occupation, completed Secondary School – transportation sector, widower, father of two adult children, of average financial standing, permanent resident in Vitinica bb, the municipality of Sapna, was sentenced to a term of imprisonment of 2 (two) and 4 (four) months for the criminal offense of Illegal Crossing of the State Border in violation of Article 249(2) of the CC of SFRY, which he served; The Accused SANEL PEZIĆ son of Nusret and mother Zurijeta nee Jajčević, born on 28 November 1977 in Tuzla, of Bosniak ethnicity, citizen of BiH, worker by occupation, completed elementary school, married, father of two minor children, of indigent financial standing permanent resident in the village of Šahbazi bb, Gornja Kalesija, the municipality of Kalesija, was sentenced by the Cantonal Court in Tuzla to a term of imprisonment of 4 (four) years for committing the criminal offenses of two attempted murders and inflicting a serious bodily injury, which he served,

ARE GUILTY

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Because: Ibrahim Nuhanović and Sanel Pezić, accompanied by Damir Hadžikadunić and the person known as Hasib and the persons known as Pero and Kazimir, citizens of the Republic of Croatia, during 2007 and January 2008, with the aim of obtaining property gain out of greed, contrary to the United Nations Convention against Transnational Organized Crime, contrary to Article 6 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, and contrary to Article 10 and provisions of other Articles of the Law on Movement and Residence of Foreigners and Asylum (“Official Gazette of BiH” No. 29/03 and 04/04), prepared and organized the transportation of other persons – migrants from the Republic of Serbia to other countries of which the migrants are neither citizens nor permanent residents, without meeting the requirements prescribed for the lawful entrance and residence of the migrants in other countries, with the aim to ensure their entrance into other countries, in the manner that Ibrahim Nuhanović and Sanel Pezić accompanied by Damir Hadžikadunić and the person known as Hasib, jointly agreed and, being subsequently also accompanied by Jasmin Mahmutović, Mirza Musić and Mirza Delić, known to them, by joint action for a fee, took part in preparing and organizing the transportation of the migrants across the territory of Bosnia and Herzegovina to other countries, and thus, based on the above mentioned arrangements, Ibrahim Nuhanović and Sanel Pezić, accompanied by Damir Hadžikadunić and the person known as Hasib, pursuant to Article 1(18) and 19 of the CC of BiH, as members of an organized group of people, which was organized with the aim of preparing and transporting the migrants across BiH to other countries, jointly, by their joint action during September and October 2007 as well as January 2008, organized the transportation of a number of migrants from the Republic of Serbia, Turkey and Albania to other countries in the manner that they: 1. Ibrahim Nuhanović and Sanel Pezić – jointly – During September, Ibrahim Nuhanović, accompanied by the person known as Hasib, organized the transportation of five citizens of the Republic of Serbia, of Albanian ethnicity, originating from Kosovo, Serbia, to the territory of BiH, and subsequently to the Republic of Croatia, and after that, with the aim to further transport these persons to the EU countries, by mid-September 2007 they hired a person known to them, Jasmin Mahmutović, to transport these five persons from Zagreb (RH) to the place of Buje in Istria (RH), in the manner that Jasmin took over these persons and put them into his motor vehicle made Mercedes, license plates number 968-K-400, in Zagreb in the Knežija Street, and transported them to the place of Buje in Istria, the Republic of Croatia, however during the entire transportation of these persons, the car made Pasat, of grey metallic color, was moving in front of his car, driven by the person known as Hasib. Besides Hasib, Ibrahim Nuhanović and Sanel Pezić were also in that car, and upon arrival in Buje, Jasmin met with Ibrahim Nuhanović, Sanel Pezić and the person known as Hasib, where he handed over these persons to Sanel Pezić who subsequently, without using the official border crossings between the Republic of Croatia and the Republic of Slovenia, took these persons to the Republic of Slovenia and after that to Italy, for the

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transportation of which Jasmin Mahmutović received Euro 500.00 from the person known as Hasib. 2. Ibrahim Nuhanović and Sanel Pezić – jointly During September, Ibrahim Nuhanović, accompanied by the person known as Hasib, organized the transportation of five citizens of the Republic of Serbia, of Albanian ethnicity, originating from Kosovo, Serbia, to the territory of BiH, and subsequently to the Republic of Croatia, and after that, with the aim to further transport these persons to the EU countries, by late September 2007 they hired the person known to them, Jasmin Mahmutović, to transport these five persons from Zagreb (RH) to the place of Buje in Istria (RH), in the manner that Jasmin took over these persons and put them into his motor vehicle made Mercedes, license plates number 968-K-400, in Zagreb in the Knežija Street, and transported them to the place of Buje in Istria, and after that he met with Sanel Pezić and the person known as Hasib in the restaurant near the tunnel of Učka near Rijeka (RH), on the occasion of which he received from the person known as Hasib Euro 500.00 for the completed transportation. These persons were subsequently taken over by Sanel Pezić for further transportation to the Republic of Italy. 3. Ibrahim Nuhanović and Sanel Pezić – jointly- After Ibrahim Nuhanović, accompanied by the person known as Hasib, organized the transportation of five citizens of the Republic of Serbia, of Albanian ethnicity, originating from Kosovo, Serbia, to the territory of BiH and further to the Republic of Croatia, and after they hired, by late September 2007, with the aim to further transport these persons to the EU countries, the person known to them, Jasmin Mahmutović, to transport these five persons from Zagreb (RH) to the place of Buje in Istria (RH), on 29 October 2007, Ibrahim Nuhanović called Jasmin Mahmutović by a cellular phone offering him to transport these persons to the place of Buje in Istria (RH), which Jasmin Mahmutović agreed to do, and therefore he came to Zagreb, in the neighborhood of Dubrava, near the kindergarten at the scheduled time, and from Damir Hadžikadunić who had transported the above mentioned persons by his car made Santana, white coffee-colored, he took over minor Arton Veseli, minor Halim Ruzdi, Pashaja Deltin, Vilson Kingji and Pashaja Leare, put three of these persons inside the car and two of them in the trunk of his passenger motor vehicle, and subsequently set off towards the place of Buje or the place where he had used to come before according to the instructions received from the person known as Hasib, and after that he set off with the above mentioned persons through the vineyards in order to take them to the place where they were supposed to be taken over by Sanel Pezić, when they were spotted by the Police of the Republic of Croatia, which arrested the above mentioned five persons, but Jasmin Mahmutović managed to flee, having previously received 4.950.00 Croatian kunas for the above mentioned transportation from the son of Ibrahim Nuhanović – Husmir Nuhanović via Western Union, which he collected at a post office in Zadar.

4. Ibrahim Nuhanović and Sanel Pezić jointly with a number of persons

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On 13 January 2008, in the territory of BiH, in the town of Srebrenik, Ibrahim Nuhanović agreed with the persons known as Pero and Kazimir, citizens of the Republic of Croatia, to transport or take eight citizens of the Republic of Turkey, of Kurdish ethnicity, across the territory of BiH, for the illegal transportation of which it had been previously agreed to be paid the total amount of Euro 8,800.00 or Euro 1,100.00 per person, and these persons were subsequently supposed to be transported from Zagreb to Trieste in the Republic of Italy, and after that, in order to define further arrangements, they met at the gas station Petrol located on Corridor 5C, on 15 January 2008, and then Ibrahim Nuhanović went to Zagreb, contacted Sanel Pezić and told him to hire the persons whom he had known from before, Mirza Musić and Mirza Delić, in order to transport the above mentioned eight persons, who, after that, took over the above mentioned eight persons in Zagreb at the address of Srebrnjak number 125 and put them in their car Renault Clio, license plates number 752-E-736, and the Renault 19 car, license plates number 275-K-192, and drove them to the place of Buje in Istria, the Republic of Croatia, while Ibrahim Nuhanović was driving all the time in front of them in the car made VW Golf 3, license plates number 710-T-352, and then the unidentified persons took these persons over in the woods near Buje and took them to Slovenia on 16 January 2008 without using the official border crossing between the Republic of Croatia and the Republic of Slovenia, for the service of which Mirza Musić and Mirza Delić did not receive the previously promised fee.

Therefore, Ibrahim Nuhanović and Sanel Pezić, out of greed, as members of the organized group of people, which was set up with the aim to transport the illegal migrants, took part in a number of transportations of these persons across the territory of BiH to other countries, by which they enabled the persons who are neither citizens nor permanent residents of the country of destination to stay in the territory of that country, whereby, by the actions described under Sections 1, 2, 3 and 4 in the reasoning of the Indictment, they committed, as accomplices, the criminal offense of Organized Crime in violation of Article 250(2) of the CC of BiH in conjunction with a continued offense of Smuggling of Persons in violation of Article 189(1) of the CC of BiH and in conjunction with Article 54 of the CC of BiH, thus the Court, pursuant to the above mentioned legal regulations, applying Articles 39, 42 and 48 of the CC of BiH

SENTENCES

the Accused Ibrahim Nuhanović to 7 (seven) years of imprisonment, and the Accused Sanel Pezić to 6 (six) years of imprisonment.

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Page 5: COURT OF BOSNIA AND HERZEGOVINA · COURT OF BOSNIA AND HERZEGOVINA . Ref. X-K-08/516-1 . Sarajevo, 26 June 2009 . IN THE NAME OF BOSNIA AND HERZEGOVINA . The Court of Bosnia and Herzegovina,

Pursuant to Article 56 of the CC of BiH, the time the Accused spent in custody shall be credited towards their sentences, i.e.: for the Accused Ibrahim Nuhanović it will commence from the date of his deprivation of liberty on 4 April 2008 onwards, and for the Accused Sanel Pezić it will be the period from 15 April 2008 until 13 June 2008 when his custody was terminated. Pursuant to Articles 110 and 111 of the CC of BiH, the Court shall confiscate the property gain from the Accused acquired by the perpetration of the criminal offense, specifically: the equivalent of Euro 17,660.00 shall be confiscated from the Accused Ibrahim Nuhanović according to the applicable exchange rate as of the date of confiscation, the equivalents of Euro 226.00 and 1,418.00 Croatian Kuna shall be confiscated from the Accused Sanel Pezić according to the applicable exchange rates as of the date of confiscation, which shall be paid by the Accused within 30 (thirty) days of the date of final judgment. Pursuant to Article 188(1) of the CPC of BiH, the Accused Ibrahim Nuhanović and Sanel Pezić shall reimburse the costs of the criminal proceedings, which shall be specified by the Court in a special decision upon obtaining the necessary data.

R e a s o n i n g 1. Prosecution By the Indictment of the Prosecutor's Office of BiH No. KT-158/08 of 12 June 2008, confirmed on 16 June 2008, the Prosecutor's Office of BiH charged Ibrahim Nuhanović, Sanel Pezić and Damir Hadžikadunić with committing the Criminal Offense of Organized Crime in violation of Article 250(2) of the CC of BiH in conjunction with the criminal offense of Smuggling of Persons in violation of Article 189(1) of the CC of BiH. On 28 November 2008, the separation of proceedings was carried out with respect to the Accused Damir Hadžikadunić due to the fact that he entered into a plea agreement with the Prosecutor’s Office of BiH. After the Accused had fulfilled the conditions set forth in the above mentioned agreement, the Court accepted it on 15 December 2008, and on 16 December 2008 it pronounced a Verdict finding the Accused guilty of the criminal offense of Organized Crime in violation of Article 250(2) of the CC of BiH in conjunction with the criminal offense of Smuggling of Persons in violation of Article 189(1) of the CC of BiH, and imposed on him a suspended sentence of imprisonment of 2 (two) years, and at the same time it was ordered that this sentence shall not be executed

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unless the Accused commits a new criminal offence within 5 (five) years commencing of the date of the final verdict pronouncement. During the evidentiary procedure, the Prosecutor heard, in their capacities of witnesses, Jasmin Mahmutović, Mirza Musić, Mirza Delić, Amir Aličić, Tajip Sejdović, Samir Babić, Merit Čampara Tirić and Damir Hadžikadunić and the expert witness Muamer Fazlagić. In addition, during the main trial the Prosecution presented and tendered the following physical evidence: Search warrant issued by the State Border Police of the Ministry of Security, No. 18-08-2-KU-9/08, of 4 April, Record on search of the dwelling and other premises by the State Border Police of Ministry of Security, No. 18-08-02-329-1/08, of 4 April 2008, Receipt on temporarily seized items issued by the Central Investigation Office of the State Border Police, No. 18-08-2-40/08 of 4 April 2008, Receipt on temporarily seized items issued by the Central Investigation Office of the State Border Police, No. 18-08-2-41/08, of 4 April 2008, Power of attorney on the name of Ibrahim Nuhanović, given by Sanel Pezić in Tuzla on 12 June 2007, Report No. KU-09/08 including criminal processing of the person Ibrahim Nuhanović, Report on the actions and measures undertaken, made by the Central Investigation Office, No.18-08-2-04-329/08, of 4 April 2008, Search warrant issued by the Central Investigation Office of the State Border Police, No. 18-08-2-KU-18/07, of 15 April 2008, Record on search of buildings and items, made by the Central Investigation Office of the State Border Police, No. 18-08-2-KU-18-2/07, of 15 April 2008, Record on search of the person, made by the Central Investigation Office of the State Border Police, No.18-08-2-KU/18/07, of 15 April 2008, Receipt on temporarily seized items, issued by the Central Investigation Office of the State Border Police, No. 18-08-2-47/08, of 15 April 2008, Receipt on temporarily seized items, issued by the Central Investigation Office of the State Border Police, No.18-08-2-47-1/08, of 15 April 2008, Power of attorney on behalf of Ibrahim Nuhanović, given by Sanel Pezić, of 15 May 2007, Report on the actions and measures undertaken, made by the Central Investigation Office of the State Border Police, No. 18-08-2-04-329/08, of 15 April 2008, Receipt on temporarily seized items from Tajip Sejdvić, made by the State Border Police of the Ministry of Security of BiH, No. 18-08-2-48/08, of 23 May 2008, Certificate of the Public Employment Agency of the Tuzla Canton, No. 2960/07, of 20 July 2007, Health certificate for a motor car driver (Ibrahim Nuhanović), No.1946, of 21 July 2007, Receipt about filed application for pension and disability insurance registration – cancellation (Ibrahim Nuhanović), of 27 July 2008, Decision on termination of the labor contract by EDEKA COMERC on the name of Ibrahim Nuhanović, of 16 April 2008, Labor record card on the name of Ibrahim Nuhanović, issued on 14 March 2007 by the Municipality of Sapna, Diagram showing the transcripts of telephone calls of suspect Ibrahim Nuhanović, CD 1.1 – transcripts of telephone calls during the period from 13 January 2008 to 28 January 2008, Telephone listing for subscriber number 35324301847463, CD 1.2 – Transcripts of telephone calls during the period from 13 January 2008 to 28 January 2008, Telephone listing for subscriber, No. 981973689, CD 1.3 – Transcripts of telephone calls during the period from 13 January 2008 to 28 January 2008, Telephone listing for subscriber, No. 35839900740967, CD 1.4 - Transcripts of telephone calls during the period from 13 January 2008 to 28 January 2008, Telephone listing for subscriber number 958575735, CD 1.5 - Transcripts of telephone calls during the period from 13 January 2008 to 28

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January 2008, Telephone listing for subscriber number 35699001634438, CD 1.6 - Transcripts of telephone calls during the period from 13 January 2008 to 28 January 2008, Telephone listing for subscriber number 958575735, Transcripts of telephone calls during the period from 13 January 2008 to 28 January 2008, Diagram showing the transcripts of telephone calls of suspect Ibrahim Nuhanović, Certified photocopy of the Order to apply the measures of surveillance and technical recording of telephone calls, issued by the County Court Zagreb, of 5 December 2008, Certified photocopy of the Order to apply the measures of surveillance and technical recording of telephone calls, issued by the County Court Zagreb, of 4 January 2008, Certified photocopy of the Order to apply the measures of surveillance and technical recording of telephone calls, issued by the County Court Zagreb, of 8 January 2008, Certified photocopy of the Order to apply the measures of surveillance and technical recording of telephone calls, issued by the County Court Zagreb, of 14 February 2008, Certified photocopy of the Order to apply the measures of surveillance and technical recording of telephone calls, issued by the County Court Zagreb, of 7 March 2008, Original cover letter of NCB Interpol Sarajevo, of 30 May 2008, Certified photocopy of the criminal report issued by Police Administration of Vukovar-Srijem, of 27 March 2008 (including a certified transcript of summarized telephone calls), Diagram showing the transcripts of telephone calls of suspect Ibrahim Nuhanović with Jasmin Mahmutović and the person known as Hasib, titled „List of Telephone Contact Numbers in the case No. KU-18/07'', Diagram showing telephone calls between suspect Ibrahim Nuhanović, and Jasmin Mahmutović and the person known as Hasib, as well as Mirza Delić, and telephone contacts between suspect Damir Hadžikadunić and Ekrem Sejdić, and with different persons from the Republic of Croatia, titled ''Telephone Contact Numbers in the case No. KU-18/07'', Analysis and explanation of the charts showing connections among telephone numbers in the Cse No. KU-18/07, Letter by the Central Investigation Office of the State Border Police, No. Confidential 18-08-2-329/07, of 29 May 2008 with one CD attached to it, Supplement report of the Central Investigation Office of the State Border Police about the criminal offense and perpetrators No.18-08-2-329/08, of 8 May 2008, Supplement analysis and explanation of the charts showing connections among telephone numbers in the Case No. KU-18/07, 11 (eleven) toll-ticketing listings provided by BH Telecom, strictly confidential, No. 07.0.2-9.24-98/08-1, of 30 January 2008, 11 (eleven) toll-ticketing listings provided by BH Telecom, strictly confidential, No. 07.0.2-9.24-975/1-07, of 27 November 2007, Toll-ticketing listings provided by BH Telecom, strictly confidential ,No. 07.0.2-9.24-975/1-07, of 27 November 2007, Toll-ticketing listings provided by BH Telecom, strictly confidential, No. 07.0.2-9.24-945/1-07, of 23 November 2007, Telephone listings provided by Telecom Srpske, strictly confidential, No. 1-02-CT-1039-2/07, of 30 November 2007, Certified photocopy of telephone listings provided by HT Mostar, No. D-731-1/08, of 29 January 2008, Telephone listings provided by HT Mostar, No. D-21081-1/07, of 28 November 2007, Telephone listings provided by HT Mostar, No. D-21245-1/07, of 28 November 2007, Diagram showing telephone calls, titled „Incident No. 7“, related to the smuggling of 5 foreign citizens (Count 3 of the indictment), Supplement analysis and explanation of the charts showing connections among telephone numbers in the Case No. KU-18/07, Forensic analysis – reading of data from mobile phones and SIM cards seized during the search of buildings and persons Ibrahim Nuhanović, Sanel Pezić, Damir Hadžikadunić, which was prepared by F MUP –

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Federal Police Sarajevo, No. 09-14/4-04-5-2593 of 19 May 2008, Analysis – reading of data from the mobile phone and SIM cards seized from suspect Ibrahim Nuhanović, specifically the mobile phone made Sony Erikson, model D 750i serial number 3565576004551205 with ultra GSM card, serial number 39387 61000 32842 0361, mobile phone made Samsung, model SGH E 250, serial number 353153019860451 with ultra GSM card, serial number 8938762020 12280400 7, subscriber number +38762280400, mobile phone made Nokia, model 1110, serial number 3569890147292 with ultra GSM BiH SIM card, serial number 89387 62020 14130 365 0, subscriber number +38762235326, mobile phone made Nokia, model 2110, serial number 358803009127031, with ultra GSM BiH SIM card, serial number 89387 62020 12 137 498 6, mobile phone made Nokia, model 2110, serial number 359399000136070 with HEJ GSM BiH SIM card, serial number 0300 06226 36663, subscriber number +38763933666, mobile phone made Motorola, model C116, serial number 355215000365358, with ultra GSM BiH SIM card, serial number 89387 61000 32567 751 8, GSM BiH SIM card “HEJ”, serial number 893870301001091 5363F, GSM BiH SIM card “HEJ”, serial number 8938703010 010628529F, subscriber number +38763152852, GSM SIM card “VIP”, serial number 893859110209 0936 487 V02 – as well as the above mentioned mobile phones and SIM cards, Analysis – reading of data from the mobile phone and SIM cards seized from suspect Sanel Pezić, from the mobile phone Samsung, model SGH E 720, serial number 355288 006483954 with ultra card subscriber number +38761960197 – as well as the above mentioned mobile phone and SIM card, Analysis – reading of data from mobile phone and SIM card seized from suspect Damir Hadžikadunić, with mobile phone Samsung, model SGH M 330, serial number 35713901992440101 with ultra card number +38762415090, mobile phone, made Alcatel, model VLE5, serial number 353039016662828 with ultra SM card number +38761468921, SIM card BiH “HEJ” number +38763734726, GSM SIM card “tomato”, serial number 893859210704 0479 677 V03 and GSM BiH SIM ultra card subscriber number + 38762396747 as well as the above mentioned mobile phones and SIM cards, Translation of the messages by the witness expert Merita Čampara-Tirić, from mobile phones and SIM cards, which were temporarily seized from the accused Damir Hadžikadunić, Chart showing payment transactions between suspect Damir Hadžikadunić and Pero Topić, Aldina Redžić and others, and between suspects Ibrahim Nuhanović and Sanel Pezić with Jasmin Mahmutović, Husmir Nuhanović and others, Analysis and explanation of the chart showing connections among payment transactions, Special Report by MUP, Police Administration of Vukovar-Srijem number : 511-15-04/5-13/2-KU-21/08, of 2 April 2008, Letter of Hrvatske Pošte DD- Zagreb with the attached 22 Western Union forms, 11 (eleven) certified copies of sent payment slips of Hrvatske Pošte, Letter of the State Investigation and Protection Agency, strictly confidential, No. 17-03/1-04-3-123/08, of 16 April 2008, with records of payment transactions, registered with TENFORE d.o.o. Sarajevo, records of payment transactions, registered with Raiffeisen Bank d.d. Sarajevo, Record on examination of the suspect No. KT-158/08, of 27 March 2008, Excerpt from the criminal records issued by the Public Security Center Doboj for Damir Hadžikadunić, No. 11-02/4-234.3-508/08, of 03.04.2008, Record on identification of persons, No. 18-08-2-04-329/08, of 8 May 2008, Photo documentation of the Central Investigation Office of the State Border Police, relating to the search of dwelling, of 26 March 2008, report of

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the State Border Police on measures and actions undertaken, No. 18-08-2-04-329/08, of 26 March 2008, Processing of suspect Damir Hadžikadunić, of 26 March 2008, Receipt on temporarily seized items by the State Border Police, No. 18- 08-2-04-23/08, of 26 March 2008, Order of the Central Investigation Office of the State Border to search the premises, persons and items and temporary seizure of items No. 18-08-2-KU-9/08, of 26 March 2008, Record of the State Border Police on search of the buildings and items, No.18-08-2-04-329/08, of 26 March 2008, Record of the State Border Police on search of a person, No. 18-08-2-04-329/08, of 26 March 2008, Request for assistance of the Prosecutor's Office of BiH addressed to the Prosecutor's Office of the Republic of Croatia, No. KT-158/08, of 22 April 2008, Letter by NCB Interpol Sarajevo, No. 16-3-04-4-IP-E-IM-2472/08-10, of 12 May 2008 with attached documentation in the case of Ekrem Sejdić and others, Record of the BiH Prosecutor's Office on examination of the suspect, No. KT-158/08, of 16 April 2008, Certificate of the Federal Bureau for Pension and Disability Insurance, No. br.03/2-1-3365, of 5 June 2008, on the name of suspect Ibrahim Nuhanović, Ibrahim, Certificate of personal data for persons registered in the master register of the Bureau for Pension and Disability Insurance Mostar, Cantonal Administration Service Sarajevo, No. 01154, of 23 May 2008, Chart indicating telephone communications between witness Taip Sejdović and suspect Ibrahim Nuhanović, Certified photocopy of the Report by MUP of the Republic of Croatia – Police Administration, Police Station of Istria, Buzet. No. 511-08-24, of 15 January 2008, Certified photocopy by MUP of the Republic of Croatia – Police Administration of Istria, Criminal Police Sector, No. 511-08-11-VT-46/08.S.M. of 17 January 2008, Letter by MUP of the Republic of Croatia, Police Administration – Criminal Police Administration – Department for International Police Cooperation, NCB Interpol Zagreb, No. 511-01- 37/1-11-1462/08.IP1-1462, of 20 May 2008, Letter by the Ministry of Security, NCB Interpol Sarajevo, No.16-3-04-4-IP-I-IM- 2513-10, of 30 May 2008, Status report by MUP of the Republic of Croatia, Police Administration Istria - Police Station Buje, No. 511-08- 22/3-K-505/2007, of 29 October 2007, Record of the Republic of Slovenia – Ministarstvo za notrenje PU Koper Postaja Mejne policije Sočerga, Številka: 2253-13/2007 (3b623-14), of 4 October 2007, Official note by MUP of the Republic of Croatia, Police Administration of Istria, Police station Buje, No. 511-08- 22/1-5-6/149-2007, of 4 October 2007, Report on capture by MUP of the Republic of Croatia, Police Administration of Istria, Police station Buje, No. 511-08-22/1-76/302-2007, of 30 October 2007, on the name of minor Rushid Halimi, Report on capture by MUP of the Republic of Croatia, Police Administration of Istria, Police Station Buje, on the name of minor Rushid Halimi, Record on examination of the suspect, minor Rushid Halimi, No. 511-08-22/1- 5-6/159-2007, of 30 October 2007, Photocopy of the identity card on the name of minor Rushid Halimi, Official note by MUP of the Republic of Croatia, Police Administration of Istria, Police Station Buje, No. 511-08- 22/1-P-6/149-2007, of 4 October 2007, Report on capture by MUP of the Republic of Croatia, Police Administration of Istria, Police Station Buje, No. 511-08-22/1-76/301-2007, of 30 October 2007, on the name of minor Arton Veseli, Record on examination of the suspect, minor Arton Veseli, No. 511-08-22/1-5-6/159-2007, of 30 October 2007, Photocopy of the identity card on the name of minor Arton Veseli, Report on capture by MUP of the Republic of Croatia, Police Administration of Istria, Police station Buje, No. 511-08-22/1-76/300-2007, of 30 October 2007, on the name of Leart Pashaj, Record on

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examination of Leart Pashaj, No. 511-08-22/1-P-6/159-2007, of 30 October 2007, Police Station Buje, Report on capture by MUP of the Republic of Croatia, Police Administration of Istria, Police Station Buje, No. 511-08-22/1-76/299-2007, of 30 October 2007, on the name of Deltin Pashaj, Record on examination of Deltin Pashaja, No. 511-08-22/1-P-6/159-2007, of 30 October 2007, Police Administration Buje, Report on capture by MUP of the Republic of Croatia, Police Administration of Istria, Police Station Buje, No. 511-08-22/1-76/298-2007, of 30 October 2007, on the name of Vilson Kingji, Record on examination of Vilson Kingij, No. 511-08-22/1-P-6/159-2007, of 30 October 2007, Police Administration Buje, Request to conduct minor offence procedure filed with the Misdemeanor Court in Umag by Police Administration of Istria, Police Station Buje, No. 511-08-22/1-P-6/159-2007, of 29 October 2007, Decision of the Republic of Croatia – Misdemeanor Court in Umag, No. I-J-1375/07-5, Photo documentation of the Ministry of Security – State Border Police, of 17 April 2008, on the name of suspect Sanel Pezić Photo documentation of the Ministry of Security – State Border Police, of 18 April 2008, on the name of suspect Ibrahim Nuhanović, Excerpt from the criminal records for suspect Ibrahim Nuhanović, issued by MUP of the Tuzla Canton, Police Administration Kalesija, Police Station Sapna, No. 08-02/5-4-04.7-682/08, of 4 April 2008, Excerpt from the criminal records for suspect Sanel Pezić, issued by MUP, Police Administration Kalesija, No. 08-02/5-1-04.7-859/08, of 16 April 2008, Diagram showing the transcripts of telephone calls of suspect Damir Hadžikadunić with Dragoslav Knežević, Ahmet Spahić and Ekrem Sejdić during the period of 7 December 2007 to 17 December 2007, Seven CDs (marked 1 through 7) containing recorded telephone calls of Kazimir Ivančević (1CD), Pero Topić (4CDs), Damir Hadžikadunić (2 CDs) including a written telephone calls listing for the telephone number 35397301803298 that was used by Kazimir Ivančević, telephone number 35699001633771 that was used by Pero Topić, telephone numbers 35837700497745 and 922048245 that were used by Damir Hadžikadunić and telephone numbers 3589900740967, 35837800037251 and 35623700804841 that were used by Pero Topić, Transcripts of telephone calls during the period from 7 to 17 December 2007, Diagram showing the transcripts of telephone calls of suspect Damir Hadžikadunić with Ekrem Sejdić during the period from 11 to 19 December 2007, Transcripts of telephone calls during the period from 11 to 19 December 2007 The Prosecutor emphasized in the closing argument that the presented evidence fully proved that the Accused Ibrahim Nuhanović and Sanel Pezić committed the criminal offence of Organized Crime in violation of Article 250(2) of the CC of BiH in conjunction with the criminal offence of Smuggling of Persons in violation of Article 189(1) of the CC of BiH, and the Court was requested to find them guilty and punish them in accordance with the law. The Prosecution particularly pointed out that it could be established based on the testimony of the expert witness Muamer Fazlagić exactly which amount of illegal property gain the Accused obtained by the perpetration of the criminal offense. Specifically, the Accused Ibrahim Nuhanović obtained Euro 5,800.00 while the amount of Euro 11,860.00 was transferred through the transaction accounts in the name of his son Husmir Nuhanović, making the total amount of Euro 17,660.00, and the Accused Sanel Pezić Sanel obtained Croatian Kuna 1,1418.00 and Euro 226.00. The

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Prosecutor proposed that the obtained property gain be confiscated from the Accused pursuant to Articles 110 and 111 of the CC of BiH. 2. Defense During the evidentiary procedure the Defense of the Accused Ibrahim Nuhanović heard the Witness Jasmin Mahmutović, the Accused in his capacity of a witness in his own case, and introduced the Prosecutor's Office Record on Examination of the witness Musić Mirza No. KT-158/08 of 19 May 2008. In the closing argument the Defense of the Accused Nuhanović objected to the legality of evidence of the Prosecutor's Office of BiH obtained from the competent bodies of the Republic of Croatia, arguing that the relevant evidence was obtained contrary to the provisions of the CPC of BiH. They also objected to the relevance of the evidence which the Prosecutor's Office tendered at the main trail of 22 June 2009, including: Request for Assistance to the Prosecutor’s Office addressed to the State Prosecutor’s Office of the Republic of Croatia, No. KT-158/08, of 22 April 2008, Letter of the Sarajevo NCB Interpol, No. 16-3-04-4-IP-E-IM-2472/08-10, of 12 May 2008 and the Request of the County Court in Osijek addressed to the Prosecutor’s Office of BiH to take over the criminal case No KIO-US-5/08 of 9 May 2008, arguing that they were not contained in the Indictment but were added subsequently. It was proposed that the charges be rejected for the reasons stipulated in Article 283a) and d) of the CPC of BiH, arguing that in the factual part of the Indictment the Accused were charged with organizing transportation from Zagreb to Istria (the Republic of Croatia), which means that the perpetration took place in the Republic of Croatia and accordingly the Republic of Croatia has territorial jurisdiction for criminal prosecution, or that the Accused be acquitted for the reasons stipulated in Article 284 c) of the CPC of BiH, arguing in that regard that the evidence of the Prosecutor’s Office was not collected in accordance with Article 10 of the CPC of BiH. The Defense for the Accused Sanel Pezić tendered evidence through testimony of the second Accused in his capacity of a witness and introduced the Record of the Border Police Central Investigation Office on collecting evidence from the Suspect Sanel Pezić, No. KU-18/08, of 15 April 2008. In his closing argument the Defense Counsel for the second Accused pointed out that the Court of BiH did not have jurisdiction for this criminal proceeding since the acts of the criminal offence, according to the Indictment, took place in the Republic of Croatia. He proposed that the charges be dismissed due to the lack of territorial jurisdiction of the Court of BiH. The first and the second Accused have fully agreed with the closing arguments of their respective Defense Counsels.

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3. Relevant law Article 250(2) of the CC of BiH reads as follows: “Whoever as a member of an organized criminal group perpetrates a criminal offence prescribed by the law of Bosnia and Herzegovina, for which a punishment of imprisonment of three years or a more severe punishment may be imposed, unless a heavier punishment is foreseen for a particular criminal offence shall be punished by imprisonment for a term not less than five years”.

Article 189(1) of the CC of BiH reads as follows: “Whoever, out of gain, transports across the state border one or more persons that do not comply with the requirements for legal entry across the state border, or whoever enables another person to cross the border illegally shall be punished by imprisonment for a term between six months and five years.” United Nations Convention against Transnational Organized Crime Protocol against the Smuggling of Migrants by Land, Air and Sea Supplementing the United Nations Convention against Transnational Organized Crime. Law on Movement and Stay of Aliens and Asylum (Official Gazette of BiH No. 29/03 and 04/04) 4. Legal standards

a) Standard of proof: For the purpose of conviction the jurisprudence has defined the “beyond a reasonable doubt” standard. According to the generally accepted view, evidence beyond any reasonable doubt is evidence based on which it can be reasonably concluded that there is a higher level of probability that the Accused has committed the criminal offense.

b) Right to a defense: The Court has concluded that during the entire trial the Accused had their defense counsels and that they used the possibility to propose and tender evidence. All the relevant evidence was tendered at the public trial. The Accused had the possibility to question and challenge all the proposed evidence.

c) Review and assessment of evidence: The Court has reviewed and assessed all the presented evidence but in its Verdict the Court considered only those relevant to making a decision, and reasoned and provided conclusions only regarding the facts which were of vital importance for the decision. The Court notes that Article 15 of the CPC of BiH stipulates the principle of free assessment of evidence, which means that the assessment of evidence is exempted from formal legal rules which would primarily set up the values of individual evidence. By establishing this principle, the lawmaker has given the necessary freedom to the judicial authorities and shown belief in the assessing power of the judges.

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5. Assessment of evidence Following the assessment of all the evidence, the Court has found that the Accused Ibrahim Nuhanović and Sanel Pezić, as co-perpetrators, committed the criminal offence of organized crime under Article 250(2) of the CC of BiH in conjunction with the continued criminal offence of Smuggling of Persons under Article 189(1), in conjunction with Article 54 of the CC of BiH, in the manner as described in the factual description of the Indictment. The specific character of the offence of organized crime is reflected in the fact that this criminal offence involves the existence of a criminal organization or an organized group of at least three persons, existing for a certain period of time, acting with the aim of perpetrating one or more criminal offences which carry the punishment of imprisonment for a term of three years or more. For the perpetrator of the criminal offense of Smuggling of Persons, in Article 189(1) of the CC of BiH the legislator has stipulated punishment by imprisonment for a term of six months to five years.

The Court especially points out that for the existence of the criminal offence of organized crime it is not necessary that members of a group be mutually acquainted or that they directly have agreed to act jointly towards the same aim. Specifically, the characteristics of this criminal offence also exist in case when members of the group do not know each other if each of them individually consciously believes that a joint activity with the same aim is developing owing to their individual activity.

Based on the evidence presented by the Prosecutor, the Court concludes that for a longer period of time and in continuity, the Accused performed acts of smuggling of foreign citizens with the aim of transporting them from their native countries (Serbia and Albania), via BiH and Croatia, to the countries of the European Union (Italy), knowing that they participated in the chain of people acting with the same goal. This conclusion the Court primarily based on the transcripts of intercepted calls (evidence obtained by the Prosecutor via international legal assistance from the competent bodies of the Republic of Croatia), and the evidence of witnesses Jasmin Mahmutović, Damir Hadžikadunić and Mirza Delić, who were heard during the main trial. The mentioned evidence clearly shows that the Accused Nuhanović and Pezić were members of the organized group of people which out of gaining property interest organized the smuggling of foreign citizens to the West European countries.

The mentioned intercepts show that apart from the Accused, a number of other persons were also members of this criminal organization (Hasib Mehić, Pero Topić, Kazimir Ivančićević, Ivan Prančević, Ekrem Sejdić, Damir Hadžikadunić, Kemal Durakovac, Jure Glavaš and others), who had clearly divided roles during the “transportation” and accommodation of the migrants from the Republic of Serbia and the Republic of Turkey to the West European countries. Thus, based on the intercepts between the Accused Nuhanović and a person named Pero Topić, one could clearly see the pattern in the planning and organization of transportation of illegal migrants. In one such conversation, the Accused Nuhanović, via telephone number 38766296312, inter alia, tells Pero Topić, number 958575735, “the guys are not going to work until they receive money in advance

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and I have not given them anything for those eight”, to which Pero replies: “I will give them 1000 as soon as they move and I also have my guy with a small lorry”.

The existence of an organized group also follows from the Record of the BiH Prosecutor's Office on examination of the Accused Sanel Pezić, of 16 April 2008. The Accused stated on that occasion that he mostly worked with Ibrahim Nuhanović, and that, according to his understanding of the organization, Hasib Mehić was responsible for the transportation of people from BiH to Croatia, while Ibro used to take over the transportation arrangements from Croatia and further. The Accused emphasized that they had their arrangements, and that Hasib Mehić had connections in Kosovo from where he used to take these individuals. With respect to the individual Counts of the Indictment, the Court found that, based on the presented evidence, the Prosecution proved beyond any reasonable doubt that the Accused committed the criminal offenses in the manner as described under the Counts of the Indictment. Witness Jasmin Mahmutović explained in detail in which way, through whom and why he agreed to transport the illegal migrants, as well as who gave him the instructions to take over the persons that had illegally crossed the border, where he used to take them over, where and how he transported them, to whom he handed them over, and the fee he was paid for these transportations. This witness stated that he did „the job“ with illegal migrants for four times in total, specifically together with Hasib Mehić, Ibrahim Nuhanović, Damir Hadžikadunić and Sanel Pezić, in the manner that in most cases he transported, by his car make Mercedes, five persons from Zagreb to Buje in Istria, the Republic of Croatia. The witness pointed out that he accepted the offer of Hasib Mehić to transport the illegal migrants with the fee of Euro 100 per person because of his difficult economic state, therefore in September 2007, he transported five persons from Zagreb to the place of Buje in Istria on two occasions respectively (Counts 1 and 2 of the Indictment). The witness clarified that on both occasions, following his arrangement with Hasib Mehić, he took over five people respectively in Zagreb, next to the coffee bar Kult in the Knežija Street, and he put two smaller persons into the trunk of his car and transported them to the place of Buje in Istria where, as he stated, Sanel Pezić would wait for him in order to further transport the illegal migrants through the Republic of Slovenia to Italy, which was his role. The witness especially emphasized that during that trip Hasib Mehić frequently called him on the phone, in other words he was following him in his motor vehicle Passat; the Accused Ibrahim Nuhanović and Sanel Pezić were with him in his car, and the witness identified them during his testifying at the main trial. The witness clarified that Mehić, Nuhanović and Pezić told him that they followed him in order to „clear up“ the road for him or to be on alert for police. The Accused Ibrahim Nuhanović himself confirmed, during his testimony within the concept of defense, that over the past two years, he routinely travelled through the tunnel of Učka that is located on the road between Zagreb and the place of Buje in Istria. Furthermore, Witness Mahmutović emphasized that the Accused Nuhanović contacted him on 29 October 2007 asking him if he wanted to transport ''firewood'' which, according to the witness, was a code for illegal migrants, which he agreed to do, however under the condition to receive the money in advance. Thus he received the amount of Euro 750,00 from the son of the Accused Ibrahim Nuhanović, Husmir Nuhanović, by way of Western

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Union. When testifying, the witness clarified that Nuhanović and Mehić had a fight in the meantime, and Nuhanović directly offered him a job and a higher price for transportation, or Euro 150.00 per person. The witness stated that the Accused Nuhanović gave him the telephone number of Damir Hadžikadunić with the instructions to contact him as soon as he arrived in Zagreb, which he did, and thus he met with Hadžikadunić near the kindergarten in the neighborhood of Dubrava, and, as he described it, Hadžikadunić drove over to him five people whom he put in his car according to the instructions of the Accused Nuhanović in the manner that two persons were in the trunk, and then he transported them to the place of Buje or to the vineyards located before Buje, left them at the old place where he always used to leave people, all of which in order that the Accused Sanel Pezić could take them over and lead them further to Italy. The witness pointed out that the police waited for him before the hand-over and that he managed to escape them at first, but that he was later captured in the tunnel of Učka and prosecuted in the Republic of Croatia. The testimony of this witness is in conformity with the already mentioned testimony of the Accused Sanel Pezić, which he gave as a suspect before the Prosecutor's Office of BiH on 16 April 2008. Thus the Accused Pezić confirmed that the guy called Jasmin brought people to him on several occasions, and that he learned from the contact with Ibro that the illegal migrants were usually transported by Jasmin who would always leave them at the same place for him to take them over subsequently and lead them further to Italy. The Accused Pezić described his role and his part of the job in the transportation of illegal immigrants in detail, pointing out that he agreed the price with Ibrahim Nuhanović, which amounted to Euro 200.00 per person, however this applied only to the persons who actually managed to reach Italy. In addition, the Accused Pezić, when examined by the Prosecutor's Office, emphasized that in the beginning, on the first occasion, Ibrahim Nuhanović showed him the way explaining that it involved a two-night walk through the Republic of Slovenia and resting during daylight, and that after the job was completed he always used to return home to wait for possible arrangements with Nuhanović in order to keep on working, pointing out that there were many illegal migrants, mainly Albanians, and that there was work to be done literally every day. The Accused also stated that he used to bring these people to the place of Tinjani in Italy, near Trieste, which is when he would inform Nuhanović that everything was all right, which was then followed with a telephone call by an unknown voice with an Albanian accent asking to talk with any of the individuals, probably to see for himself that everything was all right, and then the people would go towards Trieste by themselves. The witness pointed out that it was a well-established way of taking through the illegal migrants. The above mentioned statements were also confirmed by Damir Hadžikadunić who entered into a plea agreement with the Prosecutor's Office of BiH and undertook to give his statement as a witness of the Prosecution. Thus Hadžikadunić emphasized that he resided in Zagreb during 2007 working for Pero Topić, in terms that he rented an apartment to receive in it the individuals not having the right to reside in the Republic of Croatia, specifically the individuals that illegally crossed the state border. Hadžikadunić emphasized that the person known as Hazir was in charge of the organization, that the illegal migrants made payments to him upon arrival in Italy, and that then he paid the

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others in the organization. Thus, Hadžikadunić pointed out that Hazir called him in late October (Count 3 of the Indictment) and told him that he knew the person known as Ibro who was going to carry out the transportation, which was followed by the telephone call from this person that introduced himself as Ibro and asked „is there anything for him“. The witness further stated that, having given the address to Ibro, there appeared a young man known as Jasmin Mahmutović who, during their encounter contacted his boss by telephone calling him Ibro; the witness (Hadžikadunić) transported over five people to Mahmutović for further transportation. The witness pointed out that Mahmutović ''was busted'' during this tour. Furthermore, it arises from the Status Report by Police Station Buje, No. 511-08-22/3-K-505/2007, of 29 October 2007, that on 29 October 2007, based on the plan of the Police station Buje, an operative-tactical action Zasjeda (ambush) was carried out in the vineyards near the place known as Grando, when the car make Mercedes, silver colored, license plates 968-K-400, with national marks of Bosnia and Herzegovina arrived at the vineyard at 19:30 hours. The car parked and the driver and three more persons got off the car, then the driver opened the trunk out of which two more persons got out, and all of them set off towards a grove, which is when the police officers tried to stop them, but they scattered, specifically five persons fled to the vineyard while the driver fled into the car, started the engine and escaped from the vineyard towards Buje. It follows from the Report that the terrain was searched subsequently so that five persons were found in the vineyards: namely Vilson Kingji, Deltin Pashaj, Leart Pashaj, minor Arton Veseli and minor Halimi Ruzhdi. The identification of these persons proved that they were of Albanian nationality. Also, it follows from the Record on identification of persons by the State Border Police of BiH, No. 18-08-2-04-329/08, of 8 May 2008, that Jasmin Mahmutović, having previously described a person, recognized Damir Hadžikadunić as the person under ordinal number 3, from whom he took over five illegal migrants in total, in Zagreb, in the manner he described in his statement. Witness Mirza Delić, during his hearing at the main trial, also precisely described in which manner he participated in the smuggling of the illegal migrants. The witness pointed out that he met the Accused Sanel Pezić through a person nicknamed Pajdo, and that he accepted the job offered to him by Sanel due to his difficult financial situation. Thus, in September 2007, they set off towards Croatia. During their trip, as stated by the witness, Pezić explained to him that the whole thing involved the transportation of foreign citizens without passports, mainly Albanians, Turks and Kurds, that they had to walk from the Republic of Croatia through the Republic of Slovenia to Italy. When they arrived in the place of Buje, Sanel told him that the people „were busted“ and that they had to return, and that Sanel was constantly contacting certain persons on the way back mentioning Jasko, Ibro and Lopov. On that occasion, Pezić told him that he had already done the same job with Ibro and Lopov, and that Lopov still owed him a lot of money. The witness further stated that Sanel called him in October claiming that he had a safe job then, and they set off towards the Republic of Croatia again, and in the meantime he contacted somebody telling him that the people should be unloaded at the old place,

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however, according to the witness, upon their arrival in Buje, Sanel noticed that something was wrong and that a lot of policemen were around, so they returned to Zagreb. They later learned that Jasko „was busted“ before their arrival, and that so many policemen were there because of that. Then the witness emphasized that he travelled to the Republic of Croatia with Sanel a few more times and that it was always difficult for them to find a driver since Jasko had been arrested, and he said that during their last trip in late November he himself was arrested and received a suspended sentence without any bans. Describing the circumstances related to Count 4 of the Indictment, witness Mirza Delić points out that, in early January 2008, he was contacted by the Accused Pezić who asked him if he could find a driver, and subsequently he hired his friend Mirza Musić. Thus, in mid-January 2008 he received Euro 500.00 from Sanel to buy petrol for him and Mirza, to buy telephone cards and have some money for road-toll. The witness pointed out that he and Mirza Musić both had passenger motor vehicles make Renault, that they met with Sanel and another man at the first petrol station in the Republic of Croatia, received the address of the illegal migrants and set off towards Zagreb. The witness then stated that upon his arrival in Zagreb, an unknown person called him giving him instructions on the phone on how to reach the house in which the illegal migrants were located. The witness particularly emphasized that he was told that only eight persons were located at that address, but when he entered the house he found many more persons and estimated that there were about 40 (forty) of them, and that all of them were citizens of Turkey. Having called Sanel who had told him to select eight people, he „handed over” four persons to Mirza Musić and he put another four persons into his car, and then they set off together towards the place where they were supposed to bring these persons to, all of which was carried out under the instructions of the Accused Sanel Pezić. Then the witness stated that upon his arrival at the specified place, he told the people to hide in the woods. He pointed out that he believed that Sanel took them over for further transportation since he had told him to wait for him to return to BiH together. At the end of his testimony, witness Mirza Delić emphasized that out of Euro 500.00 that he received from Sanel only Euro 50.00 were left for him, that he gave Euro 50.00 to Mirza Musić for fuel that he needed for his return, and that the promised money did not exist at all, and he explained that he personally called Ibro who told him that he was also waiting for money from Ali. The witness emphasized that he once again personally called Ali due to the fact that he had resided in Germany and was familiar with German language, and inquired about money, to which he got an answer that the parents of the transported children were not satisfied with the manner in which they were transported or that they traveled for three days and even crossed a river, and that they would not pay them. The above mentioned testimony of this witness is also corroborated by the contents of CDs or transcripts of the intersected telephone calls. Specifically, expert witness Muamer Fazlagić, during his testifying at the main trial, among other things, played back the audio recordings of the telephone calls recorded by means of bugging telephones pursuant to the Orders issued by County Courts of the Republic of Croatia. These audio recordings depict when and how the Accused Nuhanović contacted the persons that together with him took part in the organized transportation of illegal migrants. Therefore, from the call

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between Pero Topić and Ibrahim Nuhanović, of 15 January 2008, at 11:27 hours, follows an agreement about the gathering of these persons, on the occasion of which Pero Topić spoke over telephone number: 35839900740967 with Ibrahim Nuhanović to telephone number: 38766296312 that they are waiting for him at the exit from the motor way Osijek – Đakovo at Kopanica. On the same day at 14:21 hours, the call between Kazimir Ivančičević (telephone number: 35699001634438) and Ibrahim Nuhanović (telephone number: 958542159) was recorded, and on that occasion Nuhanović said to Ivančičević ''it is loaded'', and 15 minutes later, exactly at 14:34 hours the call between Kazimir Ivančičević (telephone number: 35550501444342) and Pero Topić (telephone number: 919715326) was recorded, and on that occasion Pero said to Kazimir that he sent a message for Hajdar on both telephone numbers and told him that everything is all right, that they took eight and that they are on the road.. At 18:23 hours, the call between Nuhanović and Topić was recorded, on that occasion Nuhanović said that everything was all right, that he did the unloading, that they should continue the trip the following evening. With regard to the allegations of witness Mirza Delić that he did not receive the promised money and that he contacted a certain Ali, on 19 January 2008, at 09:16 hours, the call between Pero Topić (number: 35324301847463) and Ibrahim Nuhanović (number: 38766296312) was recorded, on that occasion Pero told Nuhanović that tomorrow he will bring Euro 500-600 so that he can give at least something to the guys and that he would bring the rest on Monday, and that the family members of these four persons did not want to pay since they had walked through water deep up to their necks. Also, on 25 January 2008, at 17:31 hours, the call between Pero Topić (number: 958575735) and Ibrahim Nuhanović (number: 38766296312) was recorded, on that occasion Nuhanović told Topić that he called that one but he told him that he would never send the money, as you will not work anymore, and that the guys cudgel his brains and that that one of his talked with him in German and introduced himself as Mirza Delić, and now he demands my name pretending that he is interested in the boss. Therefore, it clearly follows from the above mentioned evidence that the Accused Ibrahim Nuhanović and Sanel Pezić in their capacity of co-perpetrators, in a decisive manner contributed to the perpetration of the criminal offense of Smuggling of Persons, constituting an essential link in the transportation of the illegal migrants across the territory of several countries towards the EU countries, and they received money for these actions and gained the illegal property gain. The Court has carefully evaluated the testimonies of the Accused that were examined as witnesses, but it did not accept them as they found the testimonies unconvincing and illogical and being calculated to the effect of avoiding criminal responsibility. The Court particularly points to the confusion prevailing in the testimony of the Accused Pezić during his cross-examination. Based upon this evidence and other pieces of evidence that the Court has considered individually and jointly, it is established that the Accused Ibrahim Nuhanović and Sanel Pezić, as members of the organized group of people that certainly included a few more

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persons, and which obviously operated within the specific period of time (in 2007 and partly in 2008), within the sphere of their joint activity, through partly defined roles and contribution, operated with a clear objective of perpetrating the criminal acts of the criminal offense of Smuggling of Persons. The planned actions were finally carried out through several criminal acts of the same type and within a relatively longer period of time, and each of them individually contains the essential elements of the underlying crime of Smuggling of Persons, which from the point of view of life’s, logical and legal aspects, taking into consideration all the elements, constitutes, according to the Court’s finding, an entirety or the continued criminal offense of Smuggling of Persons under Article 189(1) in conjunction with Article 54 of the CC of BiH. While evaluating the evidence, the Court addressed the procedural objections submitted by the Defense during the proceedings and, first of all, considered the objections related to the legality of obtained evidence. The Defense for the Accused argued that the evidence obtained by the Prosecutor’s Office of BiH by means of international legal assistance from the relevant authorities of the Republic of Croatia, specifically the State Prosecutor’s Office of the Republic of Croatia, was obtained contrary to Article 10 of the CPC of BiH, and as such it is unlawful and the Court shall not base its decision on it. The Court believes that such a conclusion is incorrect. In other words Articles 10 of the CPC of BiH provides for ''the Court shall not base its decision on evidence obtained through violation of human rights and freedoms prescribed by the Constitution and international treaties ratified by Bosnia and Herzegovina, or on evidence obtained through essential violation of this Code.'' Article 407 of the CPC of BiH prescribes that international aid in criminal matters shall be rendered under the provisions of the CPC of BiH unless otherwise prescribed by the legislation of Bosnia and Herzegovina or an international agreement. The Court points out that II Supplementary Protocol to the European Convention on Mutual Assistance in Criminal Matters, which Bosnia and Herzegovina ratified on 20 August 2007, entirely changed certain provisions of the European Convention on Mutual Assistance in Criminal Matters. Thus Article 1(1) of the above mentioned Protocol prescribes that „the Contracting parties undertake to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party.'' Article 4 of II Supplementary Protocol has entirely changed Article 15 of the Convention. According to that modification, paragraph (1) prescribes ''letters rogatory as well as data without previously submitted applications, shall be addressed by the Ministry of Justice of the requested Party and shall be returned through the same channels. Letters rogatory may be addressed directly by the judicial authorities of the requesting Party to the judicial authorities of the requested Party and shall be returned through the same channels.'' Also, Article 4(10) of the above mentioned Protocol prescribes ''that this Article (Article 4.) shall not interfere with the provisions of bilateral treaties or arrangements being in force between the contracting parties, which prescribe direct addressing of letters rogatory between the authorities of two parties. '' The Protocol on Agreement in the Achievement of Mutual Cooperation Combating All Types of Serious Crimes, signed on 21 January 2005 between the Prosecutor’s Office of

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BiH and the State Prosecutor's Office of the Republic of Croatia exactly prescribes that for the purpose of creating the best conditions for cooperation, the relevant state Prosecutor's Offices shall directly address and receive letters rogatory related, among other things, to obtaining and exchanging intelligence, reports and documents. Having examined the letter rogatory addressed by the Prosecutor's Office of BiH to the State Prosecutor's Office of the Republic of Croatia, No. KT-158/08, of 22 April 2008, which was tendered into the court file, the Court concluded that the above mentioned Protocol was fully complied with as well as the provisions of II Supplementary Protocol to the European Convention on Mutual Assistance in Criminal Matters. Also, the Court did not find any other violations of human rights and freedoms prescribed by the Constitution and International Treaties that Bosnia and Herzegovina ratified, for the reason of which it dismissed this objection of the Defense as unfounded. The Court did not sustain the Defense objection to the jurisdiction of the Court of BiH with respect to these proceedings either. The fact that particular actions of perpetration of individual criminal offenses were not perpetrated in the territory of Bosnia and Herzegovina, which the Defense based its objection on, does not preclude the jurisdiction of the Court of BiH concerning the actions undertaken by the citizens of BiH abroad. It is expressly prescribed by Article 12(2) of the CC of BiH that the criminal legislation of Bosnia and Herzegovina shall apply to any citizen of Bosnia and Herzegovina who, outside of its territory, perpetrates any criminal offence apart from those that are covered by paragraph (1) of this Article. Based on the aforementioned and with respect to the fundamental principle of legality that imposes an obligation on the prosecutor to undertake prosecution if there exists evidence that a criminal offence has been perpetrated, the Court of BiH infers that the Court of BiH had jurisdiction to conduct the criminal proceedings in this particular case. In other words, due to the fact that, following the request of the County Court in Osijek, the Prosecutor's Office of BiH opened an investigation against the persons incriminated for the perpetration of the criminal offence of Smuggling of Persons, and due to the fact that the State Prosecutor's Office of the Republic of Croatia, by means of international legal assistance, delivered incriminating materials or evidence for the perpetration of this criminal offence, the Prosecutor's Office of BiH, as a result of the conducted investigation, learned that a number of persons participated in the perpetration of the criminal offence of Smuggling of persons, including citizens of Bosnia and Herzegovina - Ibrahim Nuhanović and Sanel Pezić, and in accordance therewith, the Indictment was filed with the Court of BiH as the court with subject-matter jurisdiction. Therefore, the Panel decided to dismiss also this objection as unfounded. The Defense Counsels for the first Accused and the second Accused also expressed their objection with respect to the relevance of the evidence that the Prosecutor's Office of BiH tendered into the court records at the main trial held on 22 June 2009 such as: Request for assistance by the Prosecutor's Office of BiH, addressed to the State Prosecutor's Office of the Republic of Croatia, No. KT-158/08, of 22 April 2008, Letter by NCB Interpol Sarajevo, No. 16-3-04-4-IP-E-IM-2472/08-10, of 12 May 2008 and Request of the County Court in Osijek, addressed to the Prosecutor's Office of BiH for taking over the criminal case No. KIO-US-5/08, of 9 May 2008, believing that these pieces of evidence

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were not part of the Indictment, that the Defense did not look into them, and that it was not clear why such pieces of evidence were relevant in the particular case. Considering this objection, the Court concluded that the Prosecutor tendered the additional evidence at the hearing held on 22 June 2009 following the Defense’s objection with respect to the unlawfulness of evidence in order to prove that the procedure of obtaining the evidence from the Republic of Croatia was in accordance with the effective regulations. To be fair, the Defense for the Accused did not have the chance to look into the additional evidence, however it was delivered to them, and the Defense Counsels agreed to make their statement regarding that at the following hearing, which satisfied the right of the Accused to make a statement regarding all the facts and evidence incriminating him, as stipulated in Article 6(2) of the CPC of BiH. In addition, the CPC of BiH does not stipulate that no additional evidence may be tendered during the main trial, therefore the Panel found this objection unfounded as well. 6. Meting out of punishment While meting out the punishment, the Court took into consideration the importance of the value protected by the law, the scope of the actions of perpetration and the fact that both of the Accused were already charged for criminal offences. Concerning the Accused Ibrahim Nuhanović, the Court especially took into consideration that the Accused had previously been convicted of the criminal offence of the same type, and it considered these facts as aggravating circumstances. At the same time, concerning the Accused Nuhanović, the Court did not find any mitigating circumstances, and thus, having in mind the fact that the Criminal Code provides for a term of imprisonment of at least 5 (five) years for this criminal offense, the Court sentenced this Accused to a term of imprisonment of 7 (seven) years. The Court also did not find any mitigating circumstances on the part of the Accused Sanel Pezić, but it found the fact that he had previously been convicted of the serious criminal offence (murder) as an aggravating circumstance. Although they perpetrated these criminal offenses as co-perpetrators, the Court sentenced the Accused Pezić to a shorter term of imprisonment having in mind the fact that he was not a repeat offender in perpetration of the criminal offense of the same type. While meting out the terms of imprisonment, the Court especially took into regard the pronounced level of social danger due to continuing and frequent perpetration of this type of criminal offences in the territory of BiH. When considering this issue the Court relies upon the statistics of this Court from recent years. Specifically, the official statistics show that the perpetration of these criminal offenses has a growing trend (especially with regard to the number of included perpetrators). Regular reports of the relevant international institutions also point out that BiH is a transitory country concerning the perpetration of the criminal offences of Trafficking in Persons and Smuggling of Persons, and that it does not show any substantial progress in that respect. For the state of BiH, the efficient fight against organized crime, particularly in the area of trafficking in persons, appears as a problem in the process of accession to the European Union, for the reason of

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which the courts are expected to apply a more severe punishment policy as one of the forms of general prevention. Pursuant to Article 56 of the CC of BiH, the Court decided that the time the Accused spent in custody shall be credited towards their sentences, i.e. for the Accused Ibrahim Nuhanović it will commence from the date of his deprivation of liberty on 4 April 2008 onwards, due to the fact that the custody of this Accused was extended by a special Decision, pursuant to Article 138 of the CPC of BiH in conjunction with Article 132(1)c) of the CPC of BiH, following the pronouncement of the sentence, and for the Accused Sanel Pezić it will commence from the date of his deprivation of liberty on 15 April 2008 until 13 June 2008 when his custody was terminated. 7. Confiscation of property gain acquired by perpetration of the criminal offence Pursuant to Articles 110 and 111 the CC of BiH, the Court confiscated the property gain acquired by perpetration of the criminal offense, specifically the equivalent of Euro 17,660.00 was confiscated from the Accused Ibrahim Nuhanović, while the equivalents of Euro 226.00 and 1,418.00 Croatian Kuna were confiscated from the Accused Sanel Pezić according to the applicable exchange rates as of the date of confiscation, and it decided that the Accused shall pay the above mentioned amounts within 30 (thirty) days from the date of final judgment. The Court established the amount of the unlawfully acquired property gain based on the testimony of expert witness Mummer Fazlagić who, by using charts, convincingly described and presented the payment transactions of the Accused with respect to the payment transactions data obtained from the agents of the Western Union system in BiH and the data about the Western Union transactions that were paid or received with Hrvatske Pošte. The analysis shows that the Accused Nuhanović and Pezić, using transaction accounts and mainly the Western Union transactions, used to send and receive substantial amount of money in various currencies, mainly in Euros, on the occasion of which the Accused Nuhanović also used the services of his son Husmir Nuhanović for these transactions. The analysis of the transactions leads to the conclusion that substantial amount of money was sent from Albania by the persons with Albanian first names and surnames, which confirms the fact that the illegal migrants were predominantly of Albanian nationality. Therefore, it follows from the analysis of the expert witness that Ibrahim Nuhanović received Euro 5,800.00 in total during 2007, while the total amount of Euro 11.860.00 was transferred to the name of his son Husmir Nuhanović, which made the grand total of Euro 17,660.00. Also, it arises from the above mentioned analysis that the Accused Sanel Pezić received Euro 226.00 or Croatian Kuna 1,418.00 during 2007. The Court has taken into consideration the fact that in the factual description of the actions of perpetration, the Accused Ibrahim Nuhanović is charged with acquiring property gain in the total amount of Euro 5,950.00 (Euro 50.00 under Count 1, Euro 500.00 under Count 2 and Kuna 4,950.00 under Count 3 of the Indictment), while the Accused Pezić is not charged with acquiring unlawful property gain. However, the

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analysis of expert witness Fazlagić as well as the circumstances surrounding the perpetration of the criminal offences are the facts from which the Court inferred that these amounts constituted the property gain acquired by the criminal offence. In other words, the Accused did not offer any evidence that, at that time, they performed any activity earning revenues paid to them through the Western Union. Pursuant to Article 110(1) of the CC of BiH, nobody is allowed to retain material gain acquired by the perpetration of a criminal offence, and pursuant to paragraph 3 of the same Article, the Court may also confiscate the gain in a separate proceeding if there is probable cause to believe that the gain derives from a criminal offence and the owner or possessor is not able to give evidence that the gain was acquired legally. Based on the presented evidence, the Court undoubtedly established that the payment transactions on behalf of the Accused originated from numerous individual actions of smuggling, which the Prosecutor did not cover in the Indictment, which de facto constitute the action of the continued criminal offence of Smuggling of Persons or a criminal activity. The Court, in the particular case, interprets the notion of “separate proceedings” as a consideration separated from the main requirement set out in the indictment. Such interpretation is in accordance with the basic objective of the legislator, which is clearly stipulated in Article 110(1) of the CC of BiH that “nobody is allowed to retain material gain acquired by the perpetration of a criminal offence”. Finally, not only that such interpretation is legally justified but it also appears as a legitimate social and moral requirement. Between the procedural principle of prohibiting the exceeding of the Indictment and the legal principle that nobody is allowed to retain the material gain that is reasonably suspected of being obtained by a criminal offence, the Court, in the interest of justice, committed itself to the principle protecting the fundamental social values. 9. Costs of the proceedings As the Accused Nuhanović and Pezić are found guilty of the criminal offences alleged by the Indictment, pursuant to Article 188(1) of the BiH CPC, they shall reimburse the entire costs of the criminal proceedings, which shall be specified by the Court in a special decision upon obtaining the necessary data. Record taker PRESIDING JUDGE Denis Podžić Branko Perić LEGAL REMEDY: An appeal against this Verdict shall be allowed with the Appellate Panel of the Court of BiH within 15 (fifteen) days as of the receipt of the written verdict.