1 Thursday, 14 February 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.16 p.m.
5 JUDGE HARHOFF: Thank you.
6 Mr. Registrar, would you be so kind as to call the case.
7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
8 everyone in the courtroom.
9 This is case number IT-04-83-T, the Prosecutor versus Rasim Delic.
10 JUDGE HARHOFF: Thank you very much.
11 And welcome to the Prosecution and to the Defence, to the accused,
12 and welcome back from Sarajevo to all of us. It was a good trip once
14 We are here this afternoon, as you can see, without the presence
15 of the Presiding Judge Moloto, who has been called away on an urgent
16 personal matter, and so for that reason we will sit today according to
17 Rule 15 bis.
18 Otherwise, the purpose of today's hearing is, since we have come
19 to the closure of the Prosecution's case, to allow for the Defence to
20 raise a motion pursuant to Rule 98 bis, and let's just get on with it.
21 So I give the floor to the Defence.
22 MR. ROBSON: Good afternoon, Your Honours.
23 As you've mentioned, Your Honour, this is the Defence's
24 application pursuant to Rule 98 bis for a judgement of acquittal in
25 respect of one of the counts faced by General Delic, namely, count number
1 3 on the indictment. In that count, General Delic is charged with rape,
2 as a violation of the laws or customs of war, on the basis of Article
3 7(3), responsibility.
4 If I could first of all turn to the law, Rule 98 bis provides that
5 at the close of the Prosecutor's case, the Trial Chamber shall, by oral
6 decision, and after hearing the oral submissions of the parties, enter a
7 judgement of acquittal on any count if there is no evidence capable of
8 supporting a conviction. In the submission of the Defence, there is no
9 evidence capable of supporting a conviction in respect of count number 3.
10 Before an accused's criminal responsibility, on the basis of
11 command responsible under Article 7(3) can be considered by the Trial
12 Chamber, there is a precondition, which is that it is for the Prosecution
13 to prove that crimes were actually committed by the alleged subordinates
14 of the accused. In relation to count 3, paragraph 48 of the amended
15 indictment is the applicable paragraph, and it pleads that three women,
16 DRW-1, DRW-2 and DRW-3, were captured during the attack on Vozuca and
17 taken to Kamenica camp on the 11th of September, 1995. It then alleges
18 that during detention at Kamenica camp, they were subjected to sexual
19 assaults, including rape.
20 If I can turn to the definition of "rape," that crime has been
21 defined by this Tribunal as the sexual penetration, however slight, (a),
22 of the vagina or anus of the victim by the penis of the perpetrator or any
23 other object used by the perpetrator or, (b), of the mouth of the victim
24 by the penis of the perpetrator where such sexual penetration occurs
25 without the consent of the victim. And "consent" for this purpose must be
1 consent given voluntarily as a result of the victim's free will, assessed
2 in the context of the surrounding circumstances.
3 So, Your Honours, that is the law.
4 I'll now turn --
5 JUDGE HARHOFF: Just to clarify, where have you taken this
6 definition from?
7 MR. ROBSON: Your Honour, the definition that I've just outlined
8 to you comes from the Kunarac trial judgement, paragraph number 460, as
9 upheld in the Kunarac appeal judgement, paragraphs 127 and 128.
10 Turning then to the evidence on the record in relation to this
11 count, or the lack of it, as the Defence would submit, Your Honours, it's
12 now necessary to consider the evidence of some witnesses that gave their
13 evidence in protected circumstances, so if we could please move to closed
15 JUDGE MOLOTO: We move to closed session. Excuse me, yes. We
16 will be moving into private session and not closed session.
17 [Private session]
11 Pages 6881-6883 redacted. Private session
9 [Open session]
10 THE REGISTRAR: Your Honours, we're back in open session.
11 JUDGE LATTANZI: [Interpretation] I just had a question. Could you
12 correct the transcript by adding the name of the Judge presiding the Trial
13 Chamber today. There's a mistake.
14 JUDGE HARHOFF: Thank you, Judge Lattanzi. Indeed, Judge Moloto
15 has many abilities, but this may be in excess of what he normally can
16 provide us with.
17 Please proceed.
18 MR. ROBSON: Thank you, Your Honour.
19 Your Honours, there are two other witnesses who gave testimony
20 that pertain to this count, and they are Edin Saric and Zakir Alispahic.
21 Dealing first of all with Mr. Saric, you'll recall that gentleman worked
22 in the counter-intelligence department of the 3rd Corps, and he testified
23 how he met the three women and interviewed them, and that was at the
24 Reception Centre, KP Dom Zenica.
25 On the 21st of November of last year, he testified at page 5953
1 the following: He was asked:
2 "So you actually saw these women on more than one occasion; is
3 that so?"
4 And he said: "Yes."
5 He was asked:
6 "So you've described their appearance, but earlier on during your
7 testimony you told us that there were no signs of visible injuries on
8 these women; is that correct?"
9 And he said:
10 "Yes, that's correct. I can even add that that was the first time
11 I was talking to women POWs, and my question was if they had been raped.
12 They said 'no.' Apart from looking frightened and unkempt, I think they
13 were all right otherwise. At least that's how it looked to me, and that's
14 what they said."
15 Now, at page 5954, he was asked:
16 "Now, you told us that you asked them if they had been raped. Is
17 it correct that you also asked them if they had been mistreated during
18 that time during their detention with the Mujahedin?"
19 And his reply to that was:
20 "Yes, I asked them that as well. They said that they had not been
21 mistreated, apart from being kept in some sort of basement with no contact
22 with the outside world."
23 As I say, that was at page 5954.
24 And then, finally dealing with the last relevant witness, Zakir
25 Alispahic, Your Honours will recall that he was a member of the 3rd
1 Military Police Battalion of the 3rd Corps. He testified about the
2 circumstances in which he collected the three women from the Mujahedin and
3 how he took them to the Reception Centre for POWs at Zenica KP Dom. During
4 cross-examination, at page 6533, it was put to him whether he remembered
5 asking if the women had been mistreated, and he replied:
6 "Yes. As we went to the main road, when I told them to remove
7 their blindfolds."
8 And then he said:
9 "And when we brought those two, three women, the practice was to
10 ask them whether they had been ill-treated, hurt, whether they had any
11 objections. I asked them and I received a negative answer. There were no
12 traces on them of any physical abuse, and they indeed confirmed that they
13 hadn't been ill-treated. At least at that moment, that's what they said
14 to me."
15 And Mr. Alispahic said that at page 6532 to 6533.
16 He was also asked about the documents that he had prepared in
17 connection with the arrival of the three women at the Reception Centre,
18 and he was asked about Exhibit 947, which is an official note on the
19 bringing in of a person, dated the 28th of September, 1995. And this
20 document related to DRW-1. And at page 6541, he confirmed that there was
21 nothing in that note to indicate that the lady had been injured or
22 mistreated in any way, and he also confirmed that DRW-1 signed that
23 document herself.
24 He was also shown Exhibit 853, which is yet another official note
25 prepared by Mr. Alispahic, and that related to the takeover of the three
1 women, and in that document he wrote the following:
2 "There were no signs of physical abuse when the aforementioned
3 persons were taken over, and this was also confirmed by them during a
4 short interview."
5 So Mr. Alispahic wrote that note, and during his testimony, at
6 page 6542 to 6543, he confirmed that if the women had told him that they
7 had been mistreated in any way, or if he had seen any signs of injury,
8 himself, he would have recorded that in the official note.
9 Now, Your Honours, that is the sum total of the evidence relating
10 to count 3, and if I could bring this submission to a conclusion, what we
11 would say is that there is no evidence whatsoever of any sexual assault
12 relating to DRW-1. There's no evidence from the victim, and there's
13 nothing to indicate that that person was sexually assaulted in the
14 evidence of any of the witnesses that the Trial Chamber have heard from.
15 The Defence would also submit that there is powerful evidence on
16 the record which suggests that in fact DRW-1 was not sexually assaulted,
17 and for that we of course rely upon what I have just explained from the
18 testimony of DRW-3, Mr. Saric and Mr. Alispahic.
19 So, Your Honours, in consequence, it's my submission that there is
20 no evidence capable of supporting a conviction in respect of this
21 particular count, and we would invite you to enter a judgement of
22 acquittal in respect of count number 3.
23 Unless you have any further questions, those are my submissions.
24 JUDGE HARHOFF: Thank you, Mr. Robson.
25 And can I just confirm that indeed in the indictment, the alleged
1 sexual assault and rape is referred to having taken place in the Kamenica
2 camp and not at any later point?
3 MR. ROBSON: That's correct, Your Honour. You will see, from
4 paragraph 48, that it specifically relates to Kamenica camp, and in
5 addition if you look above paragraph 48, you will see an underlined
6 heading which clearly shows that this allegation pertains solely to
7 Kamenica camp.
8 JUDGE HARHOFF: Right. I just wanted to clarify that, that this
9 relates exclusively to Kamenica.
10 Mr. Prosecutor.
11 MR. MUNDIS: Thank you, Mr. President.
12 Good afternoon, Your Honours, Counsel, and everyone in and around
13 the courtroom.
14 The Trial Chamber will recall that on 7 December 2007, the
15 Prosecution sought leave to withdraw count 3. That leave was denied by
16 the Trial Chamber.
17 With respect to the evidence concerning count 3, nothing has
18 changed in the intervening few weeks, and for that reason the Prosecution
19 will concede or does concede that there is insufficient evidence to
20 support conviction on count 3, and in our respectful submission justice
21 requires that that count be taken out of the indictment in the form of an
22 acquittal at this stage of the proceedings. So we would agree with the
23 Defence that there is insufficient evidence to support a conviction, and
24 we would concede that an acquittal on that count, count 3, is merited at
25 this stage of the proceedings.
1 JUDGE HARHOFF: Thank you, Mr. Prosecutor.
2 I'm glad to see that both parties apparently are in agreement on
3 this part.
4 We will now consider the matter, and we will certainly wait until
5 Judge Moloto is back with us again before we render the decision. And I
6 would therefore suggest that we hand down our decision on this matter on
7 Tuesday, the 26th of February, which is Tuesday next week, and we'll do so
8 at 2.15 in courtroom II when we continue our proceedings.
9 So we will not sit in this trial again before Tuesday, the 26th of
10 February, so as to allow the Defence to prepare its case, and we will
11 reconvene, as I said, in this courtroom at 2.15 on Tuesday, the 26th of
13 Unless the parties have any other matters to raise, then I think
14 we can adjourn.
15 This hearing is adjourned, and I wish you a good preparation for
16 your case.
17 --- Whereupon the hearing adjourned at 2.42 p.m.,
18 to be reconvened on Tuesday, the 26th day of February,
19 2008, at 2.15 p.m.