Canada (Citizenship and Immigration) v. Jozepovic

Canada (Citizenship and Immigration) v. Jozepović
Court (s) Database
Federal Court Decisions
Date
2023-12-20
Neutral citation
2023 FC 1660
File numbers
T-1862-17
Decision Content
Date: 20231220
Docket: T-1862-17
Citation: 2023 FC 1660
Ottawa, Ontario, December 20, 2023
PRESENT: The Honourable Mr. Justice Bell
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Plaintiffs
and
BOŽO JOZEPOVIĆ
Defendant
REASONS FOR JUDGMENT
I. Context/Background [1] Bosnia and Herzegovina is a country located in the Balkan Peninsula in south-eastern Europe, which was once part of Yugoslavia. It borders on other former Yugoslav Republics of Croatia, Serbia and Montenegro and has a small 12-mile seacoast on the Adriatic Sea. The part of Bosnia and Herzegovina, where the events, which are the subject of this court action, unfolded is largely mountainous and isolated. Immediately prior to the disintegration of the Yugoslav state in 1991/1992, the total population of Bosnia and Herzegovina was approximately 4.4 million, of which approximately 43.7% were Bosniaks (Muslim), 31.3% were Serbian (Orthodox) and 17.3% were Croat (Catholic). Unlike the other former Yugolav states, no one ethnic group constituted a majority in Bosnia and Herzegovina.
[2] I pause here to note that the evidence before me is that inside the eventual state of Bosnia and Herzegovina there were many Bosniaks who were allied with Croats, particularly at the beginning of what would become a civil war inside Bosnia and Herzegovina. Similarly, as hostilities developed, there were other alliances created. This was not surprising, given the integration of the three major ethnic groups. It is also important to note that each of the ethnic groups in the future Bosnia and Herzegovina could rely upon a well-trained military populace given the Yugoslav Army’s long-standing policy of “all-people’s defense”. That is, all able-bodied male citizens of the age of majority were expected to undergo military training and be at the ready in the case of any attack upon the then Yugoslavia. In addition, a more basic training had already begun in high school, which included both men and women. Non-active duty men in the former Yugoslavia were organized into Territorial Defense Units, built on a local basis for use in wartime emergencies. This provided the post-Yugoslav nations with a ready reservoir of experienced military men and women, assigned to local units.
[3] On January 15, 1992, the European Union recognized the independence of Croatia and Slovenia in their pre-civil war borders. It is noteworthy that Croatia had fought a bloody civil war, which, in large measure, pitted Croatians (Catholics) against Serbians (Orthodox), the latter of whom were supported, in large measure, by the Yugoslav state. As Yugoslavia was now a shrinking state, the Croatians (Catholics) and the Bosniaks (Muslims) were united in their desire not to be part of a larger Serbian (Orthodox) controlled state, which would include Bosnia and Herzegovina. A referendum for Bosnian and Herzegovinian independence was held on February 29 and March 1, 1992. Of the total votes cast, 99.44 % favoured independence. Approximately 1/3 of the electorate did not vote. It is widely assumed that those who did not vote were of Serbian (Orthodox) ethnicity, who are said to have boycotted the referendum. The European Union recognized the independence of Bosnia and Herzegovina on April 7, 1992. Prior to the declaration of independence, widespread fighting occurred throughout the territory of what would become the Bosnia and Herzegovina nation, as Serb forces (largely Orthodox) battled Bosniak (largely Muslim) and Croat (largely Catholic) forces. Following the independence votes in Croatia, Slovenia and Bosnia and Herzegovina, the successor state of what was once Yugoslavia, became the State Union of Serbia and Montenegro (referred to herein as Serbia). With the creation of the state of Bosnia and Herzegovina, the stage was then set for civil war inside that country. Serbia would continue its efforts to exert control inside Bosnia and Herzegovina through the ethnic Serbian population and Croatia would seek to exert control through the ethnic Croatian population. There is little doubt that certain groups in both Croatia and Serbia had designs on expanding their respective boundaries to include parts of what had recently become Bosnia and Herzegovina. Others, particularly some leaders of Croatian ethnicity inside Bosnia and Herzegovina, were less inclined to dismantle the Bosnian state.
[4] From this point onward in these reasons, I will refer to the differing warring factions inside Bosnia-Herzegovina by their actual titles. The Bosnian-Herzegovinian Army would be known as the ABiH (the Army of the Republic of Bosnia and Herzegovina). The ABiH was considered the national military. It was composed largely of Muslims, although there were some people of Croatian (Catholic) ethnicity within their ranks. The ethnic Croatians inside Bosnia-Herzegovina, organized the Croatian Defence Council (the Hvatsko vijeće obrane or HVO) to combat the Serbs (Orthodox). Importantly, the HVO was not only an army. HVO was in effect a government structure, with a President and other civic officials, which operated parallel with Bosnian and Herzegvonian authorities in governing many municipalities in Bosnia and Herzegovina, particularly those having Croat majorities. While the parties refer largely to the HVO as an army, it is clear the “army” was only part of the governing organism of the larger Croatian Defence Council, which, in many cases, was allied with the Bosnian and Herzegovinian state. This is in part reflected in the fact that, after the war ended, both HVO personnel and ABiH personnel are entitled to veterans’ benefits from the state of Bosnia and Herzegovina. There were some Bosniaks (Muslims) in the HVO, particularly at the start of the conflict in Bosnia and Herzegovina, as both Bosniaks and Croatians (Catholics) fought a common enemy, the Serbs. The ethnic Serbs in Bosnia-Herzegovina fought under the name VRS (Vojska Republike Srpske).
[5] In the spring of 1992, the civil war inside Bosnia-Herzegovina began in earnest. That war pitted the HVO (largely Croatians) and the ABiH (largely Bosniaks) against the VRS (Serbs). Immediately after the recognition of Bosnian-Herzegovinian independence, the VRS set up in Bosnia and Herzegovina and the removal of the non-Serb population began. A pattern emerged of terror, detention, killing and expulsion leading to the creation of 2.6 million refugees or displaced persons – well over one-half the population of Bosnia-Herzegovina – within the first three months of fighting. The early months of the war greatly favoured the VRS (Serbs), who were supported by the military from the former Yugoslav state.
[6] By October of 1992, the front lines of the civil war had largely settled into place. The VRS had gained significant territory; the HVO had lost territory in the north and defended certain lands further to the south and west, in what has been described as the Republic of Herceg-Bosna, a potential Croatian mini-state inside the state of Bosnia-Herzegovina. Fighting continued in and around Sarajevo, Goražde, Srebrenica, Žepa and Bihać.
[7] Importantly, by October of 1992 the relationship between the HVO and the ABiH, while they remained allies, was becoming increasingly strained, as the HVO eyed control of Herceg-Bosna in the south and west and, by some, even the potential annexation of Herceg-Bosna by Croatia.
[8] According to Dr. William B. Tomljanovich, an historian declared an expert witness at the trial of this matter, the spark which ignited the conflict between the HVO and the ABiH was the peace talks. He is of the opinion that the Vance-Owen Peace Plan, A. Izetbegovic, R. Karadzic, M. Boban, C.R. Vance, D. Owen, January 30, 1993 [Vance-Owen Peace Plan] was negotiated “with very little coercion from the outside, so it was imperative that at least one party sign on to the proposal”. Dr. Tomljanovich contends that, as a result, the smallest warring party, the HVO, was given very generous treatment in the proposed map of the “Vance Owen cantonal borders which was issued at the end of 1992”. At paragraph 112 of his opinion, Dr. Tomljanovich provides the following perspective:
Determined not to let such an opportunity slip by the HVO seized this moment to “implement” their own version of the still unsigned plan and claim their territory. On 15 January 2003, HVO President Jadranko Prlic signed an ultimatum ordering troops from the HVO and the ABiH to either leave the provinces which were not “theirs” and for remaining Bosnian authorities to subordinate themselves to the HVO in proposed provinces 3, 8 and 10. The Department of Defense was to enforce this order in five days. The Croats (meaning officials of the state of Croatia) must have had serious concerns regarding the reception of the ultimatum in Central Bosnia, as they sent the Assistant Minister of Defense of Croatia, (and later commander of the HVO), Slobodan Praljak to the Lasva Valley at this time. This ultimatum was rejected by the Sarajevo authorities. This led to localized conflicts between the HVO and ABiH. Fighting had already begun in Gornji Vakuf from 12 January 1993 to 20 January 1993, and moved to Busovaca on 23/24 January. By the end of the month, the HVO had backed down from the ultimatum and a shaky peace was temporarily restored in February.
[9] The events which are the subject of this court action occurred in the village of Poljani in the municipality of Kakanj. Kakanj municipality is majority Muslim. Kakanj was spared any serious fighting in the winter and spring of 1993. One of the reasons, according to Dr. Tomljanovich, that fighting did not come to Kakanj municipality early on in the struggles between the HVO and the ABiH was because it was foreseen to be part of Province 9 in the Vance-Owen Peace Plan. Province 9 was not to be part of HVO controlled territory. Also, in Kakanj municipality it was evident from the beginning of the civil war that parallel institutions had been set up by the HVO and Bosnia-Herzegovina. While friction existed at times between the two, they, in large measure, resolved any issues without resort to violence. Dr. Tomljanovich, at paragraphs 159, 160, 168 and 169 of his report describes the situation in Kakanj in January and February of 1993 as follows:
The fighting which enveloped the Lašva Valley next door did not yet spread to Kakanj and Vareš. This is most likely due to the fact that as those two municipalities were foreseen to become a part of Province 9 in the Vance Owen Peace Plan, they did not fall under the purview of the ultimatum which only included Croat-dominated Provinces 10 and 8. The ultimatum did state that HVO forces in Province 9 were to subordinate themselves to the ABiH, although there is no indication they formally did so.
…
Although the January fighting did not spread to Kakanj, it did indirectly have an effect on the municipality. After the fighting in Gornji Vakuf a truce was reached between HVO Zone Commander Blaškić and ABiH Deputy Zone Commander Džemo Merdan. Part of this plan was to reduce tensions where fighting had been worst by removing the 305th ABiH Brigade … from their position in Gornji Vakuf and relocating them to Kakanj. According to HVO commander Marić, this led to more tension between the HVO and ABiH. In any event it added to the already large advantage in manpower the ABiH enjoyed in the municipality.
…
From April 16 onwards, Kakanj saw an all-out war being conducted in the next-door municipalities of Zenica and Busovača. Again, the war did not spread there, but a number of incidents did follow in Kakanj. … [On] 19 April, the ABiH attacked the kindergarten in Kakanj which was then the headquarters of the Kakanj HVO Presidency and the HVO military police. However, according to Marić, “with great efforts a broader conflict was prevented”… On 21 April 1993, Croatian sources reported that HVO premises in Kakanj had come under attack the previous day by the ABiH and were demolished. One soldier from each side was killed and negotiations followed amidst fire.
…
Despite these smaller conflicts, all-out war was delayed in Kakanj for nearly two months. This isn’t entirely unusual as fighting was delayed elsewhere along the lines as locals failed to take part in the war.
…
[10] The war finally came to Kakanj on or about June 4, 1993 when the ABiH launched its attack. Recall, Kakanj was and remained predominantly Muslim. The local Croatian population, by that point, was to be found largely on the eastern side of the municipality in majority Croat villages. Immediately before the attack on Croat installations in Kakanj, the ABiH had the following units in Kakanj: the 309th Mountain Brigade was headquartered in the elementary school in the center of Kakanj; part of the 305th brigade which had been defeated in Jajce; the Lašva Detachment which was a part of the 7th Muslim Brigade as well as the Black Swans which was a Special Purpose Unit of the 1st Corps ABiH of Sarajevo. Also present in Kakanj, fighting alongside the ABiH troops were the Mujahidin with members from various Islamic states in the Middle East, including Iran. These ABiH units and the Mujahidin were opposed by the Kotromanic Brigade of the HVO. Also present in Kakanj municipality were international troops. The French United Nations Protection Forces (UNPROFOR) was stationed at the power plant.
[11] The events, which occurred from June 9 to June 13, 1993 in Poljani and Kraljeva Sutjeska, predominantly Croat villages lying on the most eastern part of Kakanj municipality, are at the heart of the dispute before me. While much more about what occurred in and around Poljani during the relevant times will be discussed in more detail, suffice it to say at this point, that the majority of Muslim civilians then present in the village of Poljani and Kraljeva Sutjeska were arrested and detained at the local school. While the HVO released women, children and the elderly prior to the able-bodied male population, all were subjected to imprisonment and some were subjected to intimidation. All appear to have received adequate food and water. I conclude all had access to toilet facilities although those who testified declined to use them out of fear. Two males were assaulted on their last day of detention, while being forced to perform work for their captors. None of the captives lost their lives. None suffered serious physical injuries. All were eventually released, on June 13, 1993.
[12] The plaintiffs contend the defendant was an active participant in the mistreatment of the Muslim civilian population, that he misled Canadian immigration authorities about his involvement in the HVO, and that he obtained his citizenship through misrepresentation or fraud or by concealing material circumstances, with respect to a fact described in section 35 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] (sometimes referred to as “s. 35 facts”), pursuant to section 10.1(1) of the Citizenship Act, RSC 1985, c C-29 [2017 Citizenship Act].
II. Positions of the Parties [13] The plaintiffs seek a declaration revoking the defendant’s Canadian citizenship and a declaration that he is inadmissible to Canada. The requests are made pursuant to subsection 10.1(1) and 10.5(1) of the Citizenship Act, RSC 1985, c C-29 as they appeared on December 2017 [2017 Citizenship Act], that was in force on December 4, 2017, the date of filing and service of the Statement of Claim. The declarations sought read as follows:
a declaration pursuant to section 10.1(1) of the Citizenship Act, R.S.C. 1985, c. C-29, that the defendant obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in section 35 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [the “first declaration”] and
a declaration that the defendant is inadmissible to Canada on grounds of violating human or international rights for committing an act outside Canada that constitutes a crime against humanity or a war crime, pursuant to sections 10.5(1) of the Citizenship Act, R.S.C. 1985, c. C-29 and 35(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27; [the “second declaration”]
[14] On March 9, 2023, this Court, on consent of the parties, granted the plaintiffs’ motion to amend the Statement of Claim to add the words “unlawful confinement” to subparagraph 114(a) of the Statement of Claim. The amended paragraph now reads as follows:
114. The defendant therefore also directly participated in, and/or voluntarily made a significant and knowing contribution to, the following war crimes:
a) wilful killing of protected persons; unlawful confinement; inhuman treatment; and committing outrages upon personal dignity, in particular humiliating and degrading treatment (which are applicable in an international armed conflict), or
[15] With respect to the first declaration, the plaintiffs say that they need only show that the defendant misrepresented a material fact by concealing his membership in the HVO. In their opinion, if they prove on a balance of probabilities that the defendant concealed his membership in the HVO, he foreclosed further inquiry into whether or not he had committed or was complicit in war crimes and/or crimes against humanity.
[16] With respect to the first declaration, the defendant contends the plaintiffs bear the onus of establishing all three elements required under section 10.1(1) of the 2017 Citizenship Act, on a balance of probabilities, namely:
They must prove a false representation or fraud or intentional concealment;
They must prove the false representation or fraud was material to the issue of a fact set out in s. 35 of the IRPA; and,
They must prove the alleged fact in s. 35 of the IRPA.
[17] If a section 35 fact cannot be proven on a balance of probabilities, then the defendant contends there is no fraud, misrepresentation or concealing of a material fact, and therefore no basis for revocation of his citizenship.
III. Witnesses called and my assessment of their credibility [18] The plaintiffs called eight witnesses during the five-week trial of this matter. Ms. Donna Marie Capper, a retired Foreign Service Officer, testified about her experiences in processing applications for entry into Canada, arising from the conflict in Bosnia and Herzegovina. Ms. Capper did not process the defendant’s application for permanent residency. She did, however, review his landing documents upon arrival in Canada. Until preparing to testify for the trial, she had not seen the defendant’s permanent resident applications. She had never interviewed the defendant. While she knew the identity of the person who conducted the interview, Jacques Jodoin, she had no access to his notes or memoranda. She had access to the forms completed by the defendant. She testified that, given the responses made by the defendant on the forms, she would have asked further questions. In particular, the defendant had failed to mention “military service” during the Bosnian conflict, stating rather that he had served in “civil defence” during the war years. Given that the defendant was male and of military service age during the war years, she says she would have asked questions about potential military service. She does not know whether such follow-up questions were asked by the interviewer, Mr. Jodoin.
[19] In summary, I found Ms. Capper to be truthful. She tried to be helpful to the Court. However, her evidence was of little value other than to establish that the defendant appears to have denied any military service during the war years. This observation, however, must be qualified by his admission that he was involved in “civil defence”. The concept of civil defence is clearly not foreign to those males from the former Yugoslavia where this notion of “all-people’s defense” constituted part of their civic duty. The name HVO is an English acronym for the Croatian Defence Council (emphasis is mine), which further explains why one might describe oneself as being involved in civil defence. Furthermore, as noted earlier, HVO had many organs, including, political, administrative, civic, and defence. While Ms. Capper gave examples of what the expression “civil defence” might mean to her, there is no evidence of what it meant to the interviewer or the defendant interviewee.
[20] In the Immigrant Visa and Record of Landing, completed in November, 1997, the defendant correctly states his name, Božo Jozepović; his birthdate, 05 June 1966; his place of birth, Kakanj; his country of birth, Bosnie-Hercegovine; and, the fact he is a citizen of Bosnie-Hercegovine. Upon entry, he provided a copy of his Bosnian-Herzegovinian passport and stated that he was of Croat ethnicity. He states in that document that his intended work in Canada is as a chauffeur. Each part of that document appears to have been completed correctly. I find there to be no misleading information in his Immigrant Visa and Record of Landing.
[21] In his application for Permanent Residence in Canada, completed in February 1997, the defendant properly sets out his name, birthdate, and last country of permanent residence; namely, Bosnia and Hercegovina. He indicates his place of birth to be Kakanj in Bosnia and Herzegovina. He sets out his address from 1983 to June of 1993 as being in Poljani, in the hamlet of Kraljeva Sutjeska Kakanj. From June of 1993 to the then present he provides an address in Croatia. The form specifically requests information about where he lived since his 18th birthday. He answers BH (Bosnia and Herzegovina) and Croatia. In a second application for permanent residence completed in June of 1997, he stated that he lived in Poljani, without any mention of Kraljeva Sutjeska, from 1983 to June of 1993. I find that discrepancy to be of no moment, as both hamlets are in Kakanj municipality and near (within several kilometres) of one another. There is no evidence contradicting the statement that he lived in both of those locations since his 18th birthday. However, on that same form, Citizenship and Immigration Canada requests applicants for permanent residence provide their work history for the past 10 years. The defendant reported having worked with “Rudnik Kakanj” from 1982 to June, 1993. He reported that his occupation was “Repairing Machines”. This information appears, at best, to be incomplete. As will be evident in the remainder of these reasons, I accept that he was engaged by the HVO. There is no evidence he was a “volunteer”. Presuming the defendant worked for “Rudnik Kakanj” when not busy with HVO duties, one would still have expected him to declare his service at the HVO.
[22] As will be seen, Sedika Topalović, testified that the defendant visited her home when he was not on guard duty. She described him as working four days on and four days off. I do not dispute that he may have worked for Rudnik Kakanj on his days off from HVO duties. While one witness, Ibro Husic, testified that the defendant did not attend work after joining the HVO, there is no evidence Mr. Husic knew the defendant’s schedule or what arrangements the defendant may have made with any employer while also engaged by the HVO.
[23] In his Application for Permanent Residence in Canada, the defendant was also required to describe the circumstances under which he became a refugee. He accurately states that in June of 1993, “hostilities between Croats and Muslims started in Kakanj”. He also says that on June 13, 1993 that he went to work “near Kakanj”. He says that on that date, the Muslim Army “started shelling all Croatian villages around the town and entering the villages as all the rest of Croats (sic) who were either living in those villages or working there. I started retrieving (sic) towards Vareš and I could not (sic) Kakanj any more”.
[24] Finally, the Application for Permanent Residence in Canada required the defendant to answer several questions about his militia, army or defence unit service. The first title on the first page of that document reads:
THIS MUST BE COMPLETED BY ALL MEN BETWEEN THE AGES OF 18 AND 65 YEARS
DID YOU SERVE IN ANY MILITIA OR ARMY OR DEFENCE UNIT SINCE 1991? IF YES, COMPLETE ALL OF HE QUESTIONS/IF NO, SEE OTHER SIDE:
[25] Unlike the remaining portions of the first page of that part of the questionnaire, there are no lines demonstrating where to place the answer. If one’s response is “yes” then that appears to be understood, by answering questions 2 to 13. If one’s response is “no”, then that appears to be understood by completing the form on the reverse side of the paper. The reverse side of the paper, complete with answers in space provided for that purpose, reads as follows:
TO BE COMPLETED BY ALL MEN BETWEEN THE AGES OF 18 AND 65 YEARS WHO CLAIM THEY DID NOT SERVE IN ANY MILITARY, MILITIA OR DEFENCE UNIT SINCE 1991.
YOU CLAIM THAT YOU DID NOT SERVE IN ANY MILITARY, MILITIA OR DEFENCE UNIT SINCE 1991 THEREFORE PLEASE ANSWER THE FOLLOWING QUESTIONS:
1. WHY DID YOU NOT HAVE TO SERVE MILITARILY DURING THE WAR?
I was driver in civil defence
2. IF YOU DID CIVIL DEFENCE/COMMUNITY DUTIES PLEASE DESCRIBE WHAT YOU DID, WHERE AND WHEN:
I was driver for humanity help
3. IF YOU RETURN TO YOUR HOME COUMMUNITY, WHERE YOU LIVED BEFORE THE WAR WHICH BEGAN IN 1991/1992, WOULD THERE BE ANY CHARGES AGAINST YOU BECAUSE YOU DID NOT SERVE IN ANY MILITARY:
I can non (sic) return because I am Croatian and my house is destroyed.
4. DID YOU REFUSE TO SERVE MILITARILY DURING THE WAR WHICH BEGAN IN 1991/1992, AND IF SO WERE YOU PENALIZED FOR THIS:
No, I do not refuse to serve militarily. I was not asked becose (sic) I was in civil defence.
PLEASE SIGN THE DECLARATION ON THE OTHER SIDE OF THIS PAGE.
[26] That declaration, which the defendant signed reads as follows:
I (YOUR FULL NAME) Božo Jozepović DECLARE THAT ALL OF THE ABOVE STATEMENT ARE TRUE, COMPLETE, AND CORRECT AND I MAKE THIS STATEMENT KNOWING THAT IT IS THE SAME AS APPEARING IN A COURT OF LAW.
Božo Jozepović
13/06/97
[27] By going directly from Question 1 on the first page to the reverse side of the page, all applicants were able to avoid such questions as whether they ever witnessed ill treatment of prisoners or civilians. Why such a question was not included on the reverse side, whether one was part of an army or not, escapes me.
[28] In the application for permanent residence completed by the defendant in June of 1997, he responded “not at all” to the question about his proficiency at speaking, reading and writing in English or French. In his application completed in February of 1997 he responded “with difficulty” to each of those categories in English and “not at all” to those categories in the French language.
[29] The second witness to testify was Dr. William Tomljanovich, an expert witness on the history of the conflict in Bosnia and Herzegovina from 1991 to 1995. I have used much of Dr. Tomljanovich’s report to outline the facts set out above. I found Dr. Tomljanovich testified in a straightforward manner, was trying his best to assist the court and appeared to be very knowledgeable about the subject matter. That said, I find much of his opinion evidence-related to matters for which first-hand direct (non-opinion) evidence should have been available. The Croatian, Slovenian and Bosnian and Herzegovinian wars of independence are very recent historical phenomena. Witnesses familiar with many of the events for which Dr. Tomljanovich could only provide an opinion, should have been available with minimal investigative effort. I am somewhat surprised that the plaintiffs would rely almost exclusively upon opinion evidence in relation to such matters as the organization of the ABiH, the HVO and the VRS when non-opinion evidence was no doubt readily available. Dr. Tomljanovich provided his opinion about many battles, negotiations, and events surrounding the conflict, about which first-hand direct witnesses should also have been readily available. Those witnesses could have been subjected to cross-examination in order for the court to have a first person account of events as they unfolded.
[30] Dr. Tomljanovich’s report is lengthy and highly detailed. His background is exclusively in the investigation and prosecution of alleged human rights’ abusers. He has never worked for the defense, nor has he ever written a report favourable to an accused person. He brings to his work a prosecutorial bias, which is evident in the manner in which he testified.
[31] In addition to his prosecutorial bias, Dr. Tomljanovich’s report demonstrates a bias in favour of the ABiH. For example, at paragraph 165, he describes how ABiH and HVO commanders met on April 21, 1993 for purposes of exchanging lists of attacks, which the other had perpetrated. However, his descriptions of the attacks are largely, although not exclusively, related to HVO attacks on ABiH. Also, when speaking about HVO attacks on ABiH populations he, on occasion, uses the word “massacre”. When speaking about similar actions by the ABiH he uses the word “killings”. He refers to the ABiH as having detained or arrested HVO members. However, when the HVO arrested ABiH members, Dr. Tomljanavich says they were “abducted”. I consider the use of the word “massacre” to be more inflammatory that the use of the word “killing”. Similarly, the word “abduction” or “abducted”, is more inflammatory than the word “arrested”.
[32] At paragraph 44 of his report under the title “The Creation of the Armies in Bosnia and Herzegovina and the Outbreak of War” Dr. Tomljanovich referred to the long-standing policy of “all-people’s defense” and explains how this concept blurred the traditional boundaries between soldiers and civilians. His report, at paragraph 95 reports how the term HVO was “thrown around in a very confusing fashion and could refer to the armed forces as well as municipal governments”. This observation provided the introduction, to yet another organ of the HVO; namely, the central cabinet consisting of a president, vice-presidents, and six department heads.
[33] Given all of the above, I find Dr. Tomljanovich’s opinion evidence useful to establish historical perspective, geographical locations and military organization. Because I find his evidence biased in favour of the plaintiffs, I have made a conscious attempt not to let that bias influence my assessment of the case against this low level, member of the HVO, who claimed to be a driver for “civil defence”. Dr. Tomljanovich’s knowledge of what Presidents, Generals and other would-be leaders in the post-Yugoslav world might or might not have thought, about which he testified at length has very little influence on the knowledge I am prepared to attribute to the defendant.
[34] The third witness to testify was Mr. Ibro Husic. He is a Bosnian Muslim who was detained from June 9 to June 13, 1993 at the elementary school in Poljani, a village in the municipality of Kakanj. Mr. Husic’s testimony was helpful in demonstrating how he was detained and taken to the school. It is also helpful in demonstrating the good relations between the Croatians (Catholics) and the Bosniaks (Muslims) in the village of Poljani until the events of June, 1993. He testified that he grew up in Poljani and currently resides there. He testified that he knew the defendant his whole life and that they worked in the local mine together. He testified that the defendant, a Croat, was the best man at the wedding of Smajo Topalović, a Muslim. He testified that prior to the events of June 1993 Croats and Muslims in their community got along well. Mr. Husic’s testimony as to relations before the war was as follows:
Q. Now, I’m going to ask you if you could explain for us or describe for us what life was like between the Croat and the Muslim population before the war started.
A. The life before the war was 10 out of 10. It was a good life. Nobody looked at others through the angle of nationality, ethnicity. We worked together. We visited each other’s (sic). And it went like that until the beginning of the conflicts.
Q. When did things – when did you notice that things began to change, that the relations between the Croats and Muslims began to change in Poljani?
A. It was not only in Poljani, throughout the municipality of Kakanj things started to change when the so-called HVO started to be established. They joined their army, they joined our army, and I could se that it will not lead us anywhere good. And in the end I proved right because the conflict started, the conflict broke out. But before that we were together and we even tied together our flags, I mean, HVO and army.
[35] Mr. Husic acknowledged that early in the war he joined the ABiH and that ABiH soldiers would see HVO soldiers and that there was no exchange between them. I interpret his reference to “no exchange” as meaning that in the early stages of the troubles in the former Yugoslavia there was no exchange of gunfire or hostilities between the two groups. The ABiH was the official army of Bosnia and Herzegovina, it was engaged to protect the Bosniak or Muslim population, and presumably, all populations in the country. That said, the HVO clearly evolved into the principal protector of the Croat or Catholic population. Regardless, they were both protecting groups from the VRS (Serbs) and, at least at the early stages, both armies had members of the other ethnic group within their ranks.
[36] Mr. Husic described that in the village of Poljani, there were about 315 households, 300 of which were Croatian and 15 of which were Muslim. Mr. Husic testified that the HVO, shortly after its formation, set up a barracks in the former elementary school in Poljani. I note here that while Kakanj municipality is a large municipality composed of many villages and hamlets, the main village of Kakanj also bears the name of Kakanj and is approximately 13 kilometres from Poljani. The defendant lived in the hamlet of Kovačići, while Mr. Husic lived in the hamlet of Sepercp. Both hamlets would be considered part of the village of Poljani.
[37] Mr. Husic described how, on June 8, 1993, he moved his elderly parents, his wife and their two children to Kakanj, fearing that war would come to his community. He, however, was told he would need a permit from the Commander before he could leave, he being male and of military age. He never did receive such a permit. He blames the defendant for this failure, stating that he asked the defendant to speak to the Commander. Mr. Husic says the defendant feigned asking the Commander and then advised him (Mr. Husic) that the Commander had refused. I find the blame he places on the defendant conjecture. I accept his evidence that his spouse and children were able to leave on June 8. I also accept his evidence regarding the good relations among Bosniaks and Croats, where he and the defendant lived, and the fact that HVO and ABiH tied their flags together early on in the newly created Bosnia and Herzegovina.
[38] On June 9, 1993, Mr. Husic began his journey out of Polanji. He was accompanied by Smajo Topalović and Alija Topalović, both Muslim males, the former being the gentleman for whom the defendant was the best man. After traveling through several villages and being stopped at HVO checkpoints, the three men, Mr. Husic, Smajo Topalović and Alija Topalović were eventually arrested, blindfolded and returned to Poljani, where they were placed in the elementary school basement.
[39] Mr. Husic testified that essentially the whole Muslim population of the village of Polanji was to be found in the basement. That included, according to him, women, children, the elderly and able-bodied men. His contention that the whole of the population was in the basement is obviously incorrect given his earlier testimony that he had moved his family out of the village on June 8. When asked to identify the children in the basement, he could name only two, they being a young boy Mirza Topalović and a young female Zuhra Topalović (now Sabanović). While Ms. Sabanović testified to being 15 at the time of her detention, Mr. Husic said she could not have been more than ten. The women and children were allowed to leave to get bedding and warm clothing. However, in doing so, they were accompanied by HVO soldiers. He described the basement as being cold and damp, with only a light into the entryway. He said there were toilets in the basement but they had no doors on them. The entry into the basement constituted a doorframe without the door installed. He says a door from a classroom leaned against the frame. He described that at one point someone threw rags on fire into the basement. The rags were quickly extinguished, by the guards and removed. It is unclear whether the rags were thrown into the basement by soldiers or civilians.
[40] At the end of the first day of captivity, according to Mr. Husic, the elderly, the women and the children were allowed to leave. However, he testified that 17 able-bodied men were required to remain. Alija Topalović, whose testimony is discussed later in these reasons, testified there were ten to twenty people remaining in the basement after the women, children and elderly had left. According to Mr. Husic, four women returned to the basement on the last day of captivity, they being: Kadira Mehak, Sedika Topalović, Bahirja Topalović and Zuhra Topalović. Zuhra Topalović (now Sabanović) testified she did not return to the basement. I reject Mr. Husic’s evidence as to the precise number of people who were detained. Given the time that has passed and his errors regarding Ms. Sabanović’s age as well as his mistake about her having returned to the school basement, I prefer the testimony of Mr. Alija Topalović that ten to twenty males remained after the women, children and the elderly were permitted to leave.
[41] Mr. Husic said the guards brought food every second day and that they were held there until the 13th of June. Mr. Husic described seeing the defendant in the basement on four occasions, one of which he was wearing a “sock” on his head. Mr. Alija Topalović, testified that the defendant came to the door of the basement on only one occasion. Mr. Topalović was present in the basement the whole time Mr. Husic was present. I reject Mr. Husic’s testimony about the number of times the defendant entered the basement. I also reject his testimony that on one occasion the defendant entered wearing a “sock” over his head. The one time the defendant entered, according to Mr. Topalović, he was not wearing anything on his head.
[42] In general, I found Mr. Husic’s testimony to be exaggerated. He often attributed motives to his captors for which there was no evidence. He often stated what he presumed they would do, without any basis for such statements. He often resorted to hearsay evidence despite several suggestions by the Court and counsel to avoid the same. He demonstrated animosity toward the defendant, on one occasion calling him a “war criminal”. To the extent his evidence differs from that of Alija Topalović, I accept Mr. Topalović’s. I conclude that following the release of women, children and the elderly after the first day of captivity, ten to twenty people remained in custody. I reject Mr. Husic’s precision of 17 men and four (4) women, which included Zuhra Sabanović (née Topalović). I accept that some women were returned to custody but do not accept that Zuhra Sabanović (née Topalović) was one of them. AS noted earlier, I reject Mr. Husic’s evidence the defendant entered the basement on four occasions. I also reject Mr. Husic’s testimony he saw the defendant in the basement with a “sock” on his head. I reach this latter conclusi