1 Thursday, 2
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.49 a.m.
5 JUDGE SHAHABUDDEEN: Yes. The Registrar,
6 will you call the case, please.
7 THE REGISTRAR: [Interpretation]
8 IT-95-17/1-A, the Prosecutor versus Anto Furundzija.
9 JUDGE SHAHABUDDEEN: We are listening to the
10 appeal this morning by Mr. Furundzija.
11 Mr. Furundzija, you are hearing me?
12 THE ACCUSED FURUNDZIJA: Yes, Your Honour.
13 JUDGE SHAHABUDDEEN: Then may we take the
14 appearances, please.
15 MR. MISETIC: Good morning, Your Honours. My
16 name is Luka Misetic. I am counsel for the appellant.
17 JUDGE SHAHABUDDEEN: For the Prosecution.
18 MR. YAPA: May it please Your Honours. I am
19 Upawansa Yapa. I appear for the Prosecutor, with
20 Mr. Christopher Staker and Mr. Norman Farrell.
21 JUDGE SHAHABUDDEEN: There is a little
22 housekeeping matter. I understand that there have been
23 some informal discussions --
24 MR. MISETIC: Yes.
25 JUDGE SHAHABUDDEEN: -- about time slots.
1 We are a little behind time this morning. I appreciate
2 that you made the effort to be here at 9.30,
3 Mr. Misetic. I do appreciate it. My colleagues
4 appreciate that also.
5 Subject to mental adjustments for what I am
6 about to say, the time slots which the Bench proposes
7 to the bar are as follows: 9.30 -- it's now nine
8 minutes to 10.00. 9.30 to 11.00, one and a half hour,
9 and then from 11.00 to 11.20 we take a little break.
10 Then from 11.20 to 12.50 we have another sitting. Then
11 lunch period from 12.50 to 2.15. Then we meet again
12 from 2.15 to 3.45, and again from 3.45 to 4.00 there
13 will be a 15-minute break. And then from 4.00 to 5.00,
14 that is our last session. And we hope in this way to
15 be able to conclude the matter, if possible, which the
16 Bench would appreciate. If counsel could so kindly be
17 disposed as to bring their arguments to an end a little
18 before 5.00, for a good reason; one of our other
19 colleagues has to sit on another Court at 5.00 sharp.
20 You appreciate the physical impossibilities which that
21 presents. Now, that is so far as housekeeping is
23 Now, Mr. Misetic, you will begin the appeal.
24 And may I say to both sides that the Bench is indebted
25 to both sides for their very fulsome and useful written
1 pleadings, which we have read. So today you may find
2 it useful just to highlight the particular elements
3 which you would like to emphasise. But of course you
4 are free within your allotted time to do exactly as you
5 please. Yes.
6 MR. MISETIC: Thank you, Your Honour. As a
7 purely technical matter, first, I had the good fortune
8 at trial of having three Judges who spoke English, so I
9 did not have to use these microphones. And I wanted to
10 make sure that either -- not make sure, to know whether
11 we were going to be doing this in French and English,
12 or just English. Because if we are going to do it in
13 French, then I need to find out how to use these while
15 JUDGE SHAHABUDDEEN: You speak English and
16 the translators would --
17 THE INTERPRETER: Microphone, please. Could
18 you please switch on your microphone.
19 JUDGE SHAHABUDDEEN: My fault. My microphone
20 wasn't on. I was saying to you, Mr. Misetic, you speak
21 in English and the translators will do whatever is
23 MR. MISETIC: I just wanted to point out that
24 I will be using these boards, in which case I won't be
25 able to hear any questions from the Bench if they are
1 not in English, and not to --
2 JUDGE SHAHABUDDEEN: I don't think there is
3 any material risk of the Bench speaking in French, much
4 as we admire and appreciate that language. That is
6 MR. MISETIC: Thank you very much, Your
7 Honour. As the Court indicated, I believe we do have
8 two housekeeping matters we have to take care of. I
9 would propose that since one of them has to do with
10 protection of a witness's identity, that we briefly
11 move into closed session --
12 JUDGE SHAHABUDDEEN: Any objections from the
14 MR. MISETIC: Do you know who I am referring
16 MR. YAPA: Your Honour, so far as we are
17 concerned, we have no concerns on the --
18 JUDGE SHAHABUDDEEN: You have?
19 MR. YAPA: We have no concerns on the
20 protected witness referred to
21 JUDGE SHAHABUDDEEN: But do you object to the
23 MR. YAPA: I do not.
24 JUDGE SHAHABUDDEEN: Well, then the motion is
25 granted, Mr. Registrar.
1 MR. MISETIC: I propose he be called Witness
2 F, since that is the next letter in this case, but I
3 leave it to the Registrar.
4 JUDGE SHAHABUDDEEN: We can find a pseudonym
5 in a while, but you want now a closed sitting; is that
7 MR. MISETIC: I don't see there to be a need
8 now for a closed sitting, unless we are going to move
9 into -- I will say what we are going to discuss. There
10 was an exhibit attached to one of our briefs, which was
11 the affidavit of this protected witness. I am not
12 going to spend a lot of time on that. We were going to
13 propose that that be submitted for the Appeals
14 Chamber. There may be an objection to that. So I was
15 going to just argue for maybe 60 seconds on this.
16 I don't know whether you want to go into closed
17 session --
18 JUDGE SHAHABUDDEEN: No. No. We are not
19 proposing to go into closed session. The main
20 principle is that the proceedings should be in public.
21 We only go into closed session exceptionally.
22 MR. YAPA: Your Honour, there is one
23 submission that we have to make in respect of this
24 matter that my learned friend has raised.
25 Mr. Norman Farrell will attend to it
1 JUDGE SHAHABUDDEEN: Yes. Perhaps we better
2 hear from Mr. Farrell.
3 MR. FARRELL: I wish to put on the record
4 that we're opposed to the affidavit of this individual
5 going in, and we will be making submissions on that.
6 We will certainly attempt to refer to him as Witness F,
7 or whatever name, to protect his identity, if that's a
8 concern of my friend. But the position will be, when
9 submissions are made, that we're opposed to the
10 admission of this.
11 JUDGE SHAHABUDDEEN: Well, Mr. Misetic, there
12 are two issues. One is the issue of protection of
13 identity, and your colleagues agree entirely with you.
14 MR. MISETIC: Right.
15 JUDGE SHAHABUDDEEN: They will be using the
16 agreed pseudonym.
17 MR. MISETIC: So we don't have a problem with
19 JUDGE SHAHABUDDEEN: And there's no need for
20 a closed sitting on that point.
21 MR. MISETIC: I hope the rest of the day
22 continues on in that spirit of cooperation.
23 JUDGE SHAHABUDDEEN: And the other one
24 concerns your declared intention to present the
25 statement of a certain witness. Now, you've heard what
1 the Prosecution has had to say on that. They are not
2 quite happy. They would be making some kind of
3 objection. So may I suggest to you you proceed, and
4 when you come to the point, we'll hear from the
6 MR. MISETIC: Perfectly fine, Your Honour.
7 JUDGE SHAHABUDDEEN: Go ahead.
8 MR. MISETIC: Then I will proceed.
9 May it please the Court. Good morning again
10 to the members of the distinguished panel, and good
11 morning to my colleagues on the other side of the aisle
12 with the Prosecution.
13 As you know, the matter before you is an
14 appeal of a judgement handed down against my client,
15 Anto Furundzija, on 10 December 1998. The appeal
16 before you raises fundamental issues of justice and
17 human rights, and it will be your duty in this case to
18 ensure that basic internationally guaranteed civil and
19 human rights are protected at the International
21 You five Judges have been given a mandate by
22 the Security Council to ensure that the trials
23 conducted at the ICTY are in accordance with minimum
24 guarantees of international human rights as found in
25 Article 14 of the International Covenant on Civil and
1 Political Rights, Article 6 of the European Convention
2 on Human Rights, customary International Law, and last,
3 but certainly not least, the Statute of the Tribunal.
4 Your Honours, in creating the International
5 Tribunal, the Security Council took into consideration
6 the fact that Trial Chambers and Trial Judges are not
7 infallible. That is the reason that the Security
8 Council, in Article 11, authorised the creation of an
9 Appeals Chamber in order to ensure that mistakes made
10 at the trial level could be corrected on appeal. In
11 the practice of the ICTY, we have already seen that
12 this was a wise decision, as the Appellate Chamber has
13 already acted to overturn the Trial Chambers in at
14 least two cases, Tadic and Erdemovic. You, the Trial
15 Chamber, are now being asked to review the judgements
16 in this case.
17 You five Judges have been charged by the
18 Security Council to be the guardians of Article 6 of
19 the European Convention, Article 14 of the
20 International Covenant, and the Statute. You are the
21 five individuals who will determine whether the rights
22 enumerated in these conventions and international
23 covenants, as well as the Statute, are simply hurdles
24 and obstacles to be overcome in pursuant of criminal
25 convictions or which, when defended on behalf of one
1 man, such an Anto Furundzija, are defended for all of
2 us all over the world. I submit to you, Your Honours,
3 that you are called in this case to defend the rights
4 defined in these international covenants and
5 conventions, not just for Anto Furundzija but for every
6 current and future defendant at the ICTY, at the ICTR,
7 the future ICC, and in domestic jurisdictions around
8 the world.
9 You are asked or, better said, you are
10 duty-bound to protect the fundamental right to a fair
12 In the case before you, I do not believe that
13 any reasonable person could contend that Mr. Furundzija
14 received a fair trial. At the end of the day and when
15 you retire to your Chambers to deliberate your opinion,
16 you will have no doubt that Mr. Furundzija's
17 fundamental rights to a fair trial were violated in
18 several ways.
19 First and foremost, he not only did not
20 receive fair notice of the charges against him, but he
21 was affirmatively misled by both the Prosecution and
22 the Trial Chamber as to the facts and charges against
23 him. Where a defendant is affirmatively misled, both
24 before and during trial, so as not to know the nature
25 and charges against him, he cannot be deemed to have
1 received a fair trial.
2 Second, the Trial Chamber ignored in its
3 judgement critical exculpatory evidence which raised
4 more than a reasonable doubt as to the Trial Chamber's
5 most critical finding in this case. Specifically, the
6 Trial Chamber's judgement turns on the pivotal finding
7 that during the course of a rape and sexual assault
8 being committed by a co-accused in a room which came to
9 be known in this trial as the pantry, Mr. Furundzija
10 was conducting an interrogation of the victim. As will
11 be demonstrated later in my argument, this conclusion
12 completely ignored clear and convincing evidence to the
13 contrary, that Mr. Furundzija did not question anyone
14 in the pantry during a rape, or sexual assault, or any
15 other assault. This was told to the Trial Chamber not
16 by a Defence witness but by a Prosecution witness.
17 Remarkably, the Trial Chamber did not consider or
18 address this testimony in its judgement and then
19 proceeded to not only convict Mr. Furundzija but
20 sentenced him to a harsh sentence of ten years
21 imprisonment on the basis of this factual finding.
22 Your Honours, the Trial Chamber ignored
23 exculpatory evidence that certainly, at the very least,
24 creates a reasonable doubt as to Mr. Furundzija's
25 guilt. As the guardians of the right to a fair trial,
1 you five Judges must correct this injustice and reverse
2 the convictions.
3 Preliminarily, I think it's important that we
4 address first what the standard of review is for this
5 Appeals Chamber on appeal.
6 The standard of review in this Chamber must
7 necessarily take into account the standard of review in
8 the Trial Chamber. That is, this Appellate Chamber
9 must have the authority to go back and review the
10 evidence to determine whether or not a reasonable doubt
11 existed at trial.
12 Part of our authority that we rely on comes,
13 in fact, from the Tadic appeal, which was decided in
14 July of last year. There, the Appeals Chamber
15 determined whether or not the standard of proof beyond
16 a reasonable doubt was correctly applied, except in
17 that case it was the Prosecutor appealing that there
18 was no reasonable doubt. Regardless, now that it is a
19 defendant that is appealing that, the same principle
20 applies. The Trial Chamber has the authority to review
21 whether the standard was correctly applied.
22 The test for proof beyond a reasonable doubt
23 is as follows: The evidence must be so overwhelming
24 that it excludes every fair or rational hypothesis
25 except that of guilt. That is, a conviction requires
1 the absence of any reasonable hypothesis that can be
2 derived from the evidence other than guilt. If there
3 was any rational hypothesis at trial that
4 Mr. Furundzija was not guilty of these charges, then
5 the Trial Chamber was required to accept that
6 hypothesis under the standard of "beyond a reasonable
7 doubt." Mr. Furundzija thus appeals on the basis that
8 the Trial Chamber was unreasonable in concluding that
9 the only fair or rational hypothesis that could be
10 derived from the evidence is that Mr. Furundzija is
11 guilty. In fact, it is clear from the evidence that
12 there were fair and rational hypotheses in the evidence
13 of Mr. Furundzija's innocence which required the Trial
14 Chamber to acquit my client.
15 What do the reported cases indicate an
16 Appellate Chamber must do on appeal?
17 The first principle is that the Appellate
18 Chamber has the right and the obligation to conduct its
19 own independent assessment of the evidence, both as to
20 its sufficiency and as to its quality. After
21 independently reviewing this evidence, the Appellate
22 Chamber must then determine whether or not the Trial
23 Chamber ought to have entertained a reasonable doubt as
24 to the guilt of the defendant.
25 In short, the Appellate Chamber must
1 determine whether the Trial Chamber, acting reasonably,
2 should have found that there is a fair and rational
3 inference of innocence in the evidence. If so, the
4 defendant's conviction must be reversed.
5 The Prosecution, in its appellate brief,
6 argues for a standard which says that if there is any
7 basis in the evidence to conclude that the Trial
8 Chamber's conclusion was reasonable, then the Appellate
9 Chamber cannot overturn that decision. We propose,
10 Your Honours, first, that that position is inconsistent
11 with what the Appellate Chamber did in the Tadic appeal
12 in ruling in favour of the Prosecution. Second, it's
13 inconsistent with -- the very standard which I have
14 enumerated here is inconsistent with the position they
15 took in the Tadic appeal, according, at least, to the
16 written decision. And third, to not allow an Appellate
17 Chamber to go back and review whether there was a
18 reasonable doubt would, in effect, preclude a defendant
19 from an effective right to an appeal.
20 If at trial the defendant is entitled to be
21 acquitted if there is a reasonable doubt, then he is
22 entitled to argue at the appellate level if there was a
23 reasonable doubt. Indeed, under the Prosecution
24 standard, at least as I understand it, the defendant
25 only gets one chance to argue that there was reasonable
1 doubt, and that is at the trial level. And then the
2 Appellate Chamber is precluded from doing its own
3 review as to whether or not there is a reasonable
4 doubt. Again, that is contrary, I believe, to the
5 precedent already set in Tadic and contrary to the
6 overwhelming weight of law in domestic jurisdictions.
7 Finally on that issue, here is the best way I
8 can articulate this. The standard is as follows: Even
9 if the Trial Chamber were to retire and find that the
10 defendant probably did it, but they were also to find
11 that there is, however, a reasonable argument that
12 could be made on the evidence that he didn't, then the
13 Trial Chamber, and now the Appellate Chamber, must
14 acquit him, because despite the fact that the defendant
15 probably did it, if there is that reasonable hypothesis
16 that can be derived from the evidence of innocence,
17 then he must be acquitted. And that is the standard
18 that must be applied at the trial levels here, and also
19 on the appellate level.
20 The Appellate Chamber should keep in mind
21 that once the defendant presents, through direct
22 examination or cross-examination, a Defence, the
23 fundamental presumption of innocence, until proven
24 guilty, precludes the trier of fact from simply
25 ignoring the exculpatory evidence. And if there is any
1 reasonable hypothesis consistent with evidence --
2 THE INTERPRETER: Could the counsel slow
3 down, please. Could the counsel slow down.
4 JUDGE SHAHABUDDEEN: The translators have a
5 comment to request that you abate your pace a little.
6 MR. MISETIC: I apologise again to the people
7 in the booth.
8 Thus, if Mr. Furundzija, through Witness D in
9 this case, introduced evidence that he did not
10 interrogate anyone in the pantry, it must have been
11 accepted. The fact that the Trial Chamber did not,
12 requires this Appellate Chamber to act by reversing the
13 judgement of the Trial Chamber.
14 Throughout this appeal, then, Your Honours, I
15 will be using that standard, and that is that I will
16 demonstrate now through the evidence that there in fact
17 were fair and rational hypotheses that could have been
18 derived from the evidence of innocence.
19 I think at this time I would like to ask the
20 Registrar to assist me here. But I would like to take
21 a few moments to first establish exactly what the Trial
22 Chamber found in the judgement, so that we all know
23 what exactly we are talking about.
24 Your Honours, I will be using the board, but
25 you will each have a copy in front of you, as will the
1 Prosecution, of the board itself, to make it easier for
2 you to read and follow.
3 In brief, first, I am sure you've read the
4 briefs, but I will -- the case was about a series of
5 incidents that happened to one woman, starting on or
6 about May 15 of 1993. The allegations in the
7 indictment, and which were ultimately found in the
8 judgement, were that this woman was brought to a place
9 called "the Bungalow" in Nadioci, and then taken out
10 behind to a weekend house next to the Bungalow. The
11 allegations, in short, were -- at least that everyone
12 can agree on, that she was raped and sexually assaulted
13 in two different rooms in this weekend house. One came
14 to be known at trial as the large room, and is referred
15 to as such in the judgement. And the second came to be
16 known as the pantry.
17 The events in the large room temporally
18 happened first, and then the events in the pantry
20 So first I am going to discuss what the Trial
21 Chamber found with respect to what happened in the
22 large room.
23 The Trial Chamber found as follows. And I
24 have paragraph numbers indicating where in the
25 judgement you can find this. The first finding of fact
1 that's important is that when Witness A was taken to
2 the weekend house, that she was brought into this large
3 room, and that immediately upon her arrival, or just
4 shortly thereafter, Mr. Furundzija arrived and appeared
5 in the room, where he immediately commenced an
6 interrogation of Witness A.
7 According to the judgement, during this
8 interrogation, at some point Witness A gave an answer,
9 and that from behind her, for the first time, appears
10 Accused B. He puts a knife to her throat and makes an
11 oral threat to her, while she is in front of
12 Mr. Furundzija being interrogated.
13 Furundzija commenced the interrogation of the
14 -- I'm sorry, this is in this first part where he
15 commenced the interrogation without Accused B. Then
16 Accused B arrived. After questioned by Furundzija,
17 Accused B grabbed Witness A by the hair, put a knife to
18 her throat, then forced her to undress and remove her
19 glasses. Again, all of this is in front of
20 Mr. Furundzija, according to the judgement.
21 Paragraph 82, Furundzija continues with the
22 interrogation of Witness A. Witness A is forced to
23 remain naked in front of approximately 40 soldiers.
24 Accused B then -- again, all this is in front of
25 Mr. Furundzija -- drew a knife over Witness A's body
1 and thighs, threatening to cut out her private parts.
2 Furundzija allegedly continued the interrogation while
3 this is happening.
4 The final finding, at least with respect to
5 Mr. Furundzija, is paragraph 83. Furundzija becomes
6 annoyed and threatens Witness A to make her confess by
7 confronting her with Witness D. Furundzija leaves
8 Witness A in the room, and then another phase of
9 serious sexual assaults by Accused B, accompanied by
10 questioning, follows.
11 From these facts, the Trial Chamber makes
12 several conclusions, and it's said in the judgement.
13 "The Trial Chamber is satisfied beyond a reasonable
14 doubt that: A, Witness A was interrogated by the
15 accused in the large room; B, she was forced by Accused
16 B to undress and remain naked before a substantial
17 number of soldiers," which from the judgement you can
18 determine includes Mr. Furundzija. "C, she was
19 subjected to cruel, inhuman and degrading treatment and
20 to threats of physical assault by Accused B in the
21 course of her interrogation by the accused; D, the
22 interrogation by the accused, and the abuse by Accused
23 B, were parallel to each other. Witness A was left by
24 the accused in the custody of Accused B, who proceeded
25 to rape her, sexually assault her, and to physically
1 abuse and degrade her."
2 Although the conclusion is not stated, a
3 reasonable reading of this makes it appear that
4 Mr. Furundzija knowingly left this woman in the custody
5 of Accused B, knowing that she was going to be --
6 continue to be abused, up to and including rape.
7 The next room is the pantry, and that is
8 Exhibit A2.
9 Now, what happens after Witness A is raped by
10 accused B outside the presence of Furundzija, Witness A
11 is taken to the pantry, and there she was confronted
12 with Witness D.
13 Witness A says Furundzija interrogated her
14 with -- interrogated Witness A with Witness D in the
15 pantry. When Accused B started to beat Witness D,
16 Witness A says Furundzija was in the doorway. Witness
17 D says Furundzija was outside the room with other
19 At this point later on I will -- you can
20 start to see where the conflict starts in the
21 testimony. But I'll continue.
22 Paragraph 87 says: "The attacks then turned
23 to Witness A. Accused B hit Witness A, forcing her to
24 perform oral sex on him, and raped her. Witness D was
25 forced to watch.
1 Then this inference from the Trial Chamber.
2 "It appears to the Trial Chamber that the accused would
3 have had to be in the vicinity of the door in order for
4 Witness D to have seen him amidst the group of
5 soldiers. Witness A stated that Furundzija was there
6 all the time.
7 266. "The Trial Chamber finds the accused was
8 also present in the pantry where the second phase of
9 Witness A's interrogation occurred. Both Witness A and
10 Witness D were interrogated by the accused and hit on
11 the feet with the baton by Accused B during questioning
12 in the pantry. Accused B again assaulted Witness A,
13 who was still naked, before the other soldiers."
14 And this again is the pivotal factual finding
15 in the case.
16 "The accused continued to interrogate Witness
17 A in the same manner as he had done earlier in the
18 large room. As the interrogation intensified, so did
19 the sexual assault and the rape."
20 There can be no doubt that that is the
21 pivotal finding.
22 Paragraph 87. "Witness D says that when he
23 was taken out of the pantry, he saw the accused outside
24 the doorway."
25 Paragraph 270. "The Trial Chamber --" and
1 this confirms again that pivotal factual finding. "The
2 Trial Chamber has found that Witness A was subjected to
3 rape and sexual assaults by Accused B in the course of
4 the interrogation by the accused. There is no doubt
5 that the accused, and Accused B, as commanders, divided
6 the process of interrogation by performing different
7 functions. The role of the accused was to question,
8 while accused B's role was to assault and threaten in
9 order to elicit the required information from Witness A
10 and Witness D."
11 Then finally: "The Trial Chamber finds that
12 in relation to Witness A, the elements of torture have
13 been met. Within the provisions of Article 7(1) and
14 the findings of the Trial Chamber on the liability for
15 torture ..." Now, I have emphasised this. "... the
16 accused is a co-perpetrator by virtue of his
17 interrogation of her as integral to that torture."
18 So it is not that he was present or may have
19 been present; it is that his interrogation is an
20 integral part of that torture.
21 "The Trial Chamber, therefore, finds beyond
22 reasonable doubt that whilst naked, but covered with a
23 blanket, Witness A was interrogated by the accused in
24 the pantry. Witness A was subjected to rape, sexual
25 assaults, and cruel, inhuman and degrading treatment by
1 Accused B."
2 Here they insert Witness D, which I will
3 discuss later. "Witness D was also interrogated by the
4 accused and subjected to serious physical assaults by
5 Accused B. Witness D was made to watch rape and sexual
6 assault perpetrated upon a woman whom he knew in order
7 to force him to admit allegations made against her. In
8 this regard both witnesses were humiliated."
9 And finally: "Accused B beat Witness D and
10 repeatedly raped Witness A. The accused was present in
11 the room as he carried on his interrogations. When not
12 in the room, he was present in the near vicinity just
13 outside an open door, and he knew that crimes,
14 including rape, were being committed." In fact, the
15 acts by Accused B were performed in pursuant of the
16 accused's interrogation.
17 Your Honours, those are the critical facts of
18 the judgement. Now I will proceed to explain to you
19 why all of those conclusions are not sustainable by the
21 I'm going to turn to the first issue on
22 appeal, and that is whether Anto Furundzija was given
23 fair notice of the charges to be proven against him in
24 violation of Articles 20 and 21(4) of the Statute of
25 the Tribunal.
1 I think that each member of the Appellate
2 Chamber will agree with the proposition that an
3 accused's right to fair notice of the nature and cause
4 of the charges against him is fundamental to his right
5 to a fair trial. The commentary to the International
6 Covenant on Civil and Political Rights states that the
7 term "nature and cause of the charge" means not only
8 the exact legal description of the offence but also the
9 facts underlying it. If the Prosecutor and the Trial
10 Chamber not only failed to inform Mr. Furundzija of the
11 facts underlying the charges against him but also
12 patently misled him as to the nature of the charges
13 against him, this Appellate Chamber must reverse the
14 Trial Chamber's convictions.
15 One of the key documents in this case, as in
16 any case, is the indictment. What does an indictment
17 do? It identifies the charges against the defendant,
18 it identifies the facts supporting these charges,
19 including but not limited to the identity of the
20 victim, the approximate date of the alleged offence,
21 the means by which the offence was committed, and the
22 material facts upon which the Prosecution relies must
23 be pleaded, as well as the defendant's particular
24 course of conduct. Thus, the indictment defines but
25 also at the same time limits the criminal case against
1 the accused. It is this document which is meant to
2 implement and satisfy a defendant's right to notice
3 under the relevant international covenants and
4 agreements. It is this document upon which the
5 defendant must, out of necessity, rely in preparing his
6 defence against the charges. For this reason, a
7 prosecutor, not just here but anywhere, cannot seek a
8 conviction on the basis of material facts which are not
9 pleaded in the indictment.
10 Oftentimes, a prosecutor will be faced with
11 many different scenarios of the facts of the case prior
12 to filing an indictment. However, the necessity of an
13 indictment requires that a prosecutor determines which
14 of those factual situations they intend to choose.
15 They choose that factual situation, and then they
16 submit it in the form of an indictment in this case to
17 the Trial Chamber for confirmation. Then the
18 Prosecutor must live with that choice unless they
19 exercise their rights under Rule 50 and file to amend
20 the indictment. If this is not the case, then there is
21 no reason for an indictment or for a procedure amending
22 an indictment, if the Prosecutor is not bound by the
23 submissions made in that document.
24 For this reason, because this is one of our
25 fundamental issues of appeal, I'm going to go over
1 exactly what happened at the pre-trial stage here in
2 terms of what the indictment actually alleges.
3 JUDGE SHAHABUDDEEN: Mr. Yapa, we're
4 admitting these documents and numbering them as
5 exhibits. I take it you have no objection. They are
6 only material intended to illustrate the presentation.
7 MR. YAPA: We have no objections.
8 MR. MISETIC: They are intended, Your Honour,
9 for purely demonstrative purposes.
10 Your Honours, at our break I will try to have
11 all these things labelled so we can expedite this in
12 the rest of the argument.
13 In examining -- I'm sorry, may I proceed,
14 Your Honour?
15 JUDGE SHAHABUDDEEN: Yes.
16 MR. MISETIC: Thank you.
17 In examining the indictment, the indictment
18 in this case is against four accused. One is
19 Mr. Furundzija. The remaining three are still under
20 seal, but it is clear that one of the accused is
21 Accused B.
22 The indictment is divided into several
23 different periods of time involving several different
24 acts. Counts 1 through 8 do not involve Witness A, and
25 it appears to me that they involve Accused B's conduct
1 with respect to other individuals at other times. Now,
2 at count 9 is where the indictment starts to examine
3 what happened to Witness A, and in the indictment what
4 happened to Witness A is divided into three different
5 segments. Counts 9 through 11 are the large room.
6 These are the counts that relate to when Witness A was
7 first taken to the weekend house by the Bungalow.
8 Counts 12 through -- and I'm sorry; I might add, do not
9 involve Mr. Furundzija. Counts 12 through 14 involve,
10 in paragraph 25, a brief moment in the large room at
11 the end of all of these events, and then the pantry
12 incident. And there it's Furundzija and Accused B.
13 After count 14, if you will recall from the facts of
14 this case, counts 9 through 14 happened in one day;
15 they are the large room and the pantry. Witness A,
16 however, was held in captivity by Accused B for
17 approximately ten weeks following this incident, so
18 counts, I believe, 17 or 18 through 23 deal with that
19 ten-week period subsequent to what happened in the
20 weekend house.
21 So we have three different time periods. We
22 have counts 9 through 11 for the large room, counts 12
23 through 14 for the pantry, and then an additional
24 several counts for that ten-week period where she was
25 held in captivity.
1 What do counts 9 through 11 allege? On or
2 about 15 May, Witness A was taken to a building called
3 the Bungalow. There Accused B, in front of other
4 soldiers, forced Witness A to remove her clothing,
5 caressed her body with a knife, threatened to kill her,
6 and told her that all the men who were present in the
7 room would rape her. Then Accused B forced Witness A
8 to dance naked.
9 Paragraph 24. Accused B next proceeded to
10 rape Witness A by forcing her to perform oral sex and
11 to swallow his sperm and urine. Accused B forced
12 Witness A to have sexual intercourse with him, both
13 vaginally and anally. Accused B penetrated Witness A's
14 mouth, vagina and anus with his penis. During these
15 incidents, Accused B bit -- I'm sorry, Accused B bit
16 Witness A about the body, including on her nipples.
17 Accused B forced Witness A to commit these acts with
18 him several times, so there are several rapes that
19 occur in the large room.
20 During these rapes, Accused B rubbed his
21 knife on Witness A's body and put his revolver in her
22 mouth and against her forehead. Then it says, "By the
23 foregoing acts and omissions, Accused B committed the
24 following crimes," and then it lists them; count 9 for
25 a grave breach, count 10 for torture, and count 11 for
1 outrages upon personal dignity, including rape.
2 So it is clear from the indictment that there
3 was a series of rapes and sexual assaults that occurred
4 in the large room prior to Mr. Furundzija's alleged
5 arrival. Why? Because we turn to count 12, and it
6 says: "On or about 15 May, shortly after the events
7 described in paragraphs 21 and 22," and this is a typo,
8 because it should be "23" and "24," since 21 and 22
9 have nothing to do with Witness A, "at the Jokers'
10 headquarters, Anto Furundzija, the local commander of
11 the Jokers, and another soldier interrogated
12 Witness A." Again, the key clause is "shortly after
13 the events described in these paragraphs."
14 What does paragraph 25 allege with respect to
15 the criminal conduct of Anto Furundzija? It says:
16 "While being questioned by Furundzija, Accused B
17 rubbed his knife against Witness A's inner thigh and
18 lower stomach and threatened to put his knife inside
19 Witness A's vagina should she not tell the truth." So
20 the criminal allegations here in this paragraph are
21 that Mr. Furundzija conducted an interrogation of
22 Witness A when then Accused B made an oral threat and
23 made physical contact with a knife. And the issue for
24 the Trial Chamber at trial was, "Does that conduct rise
25 to the level of torture?"
1 Twenty-six, this is the pantry paragraph.
2 Then Witness A and Victim B, who at trial came to be
3 known as Witness D, a Bosnian Croat who had previously
4 assisted Witness A's family, were taken to another room
5 in the Bungalow, the pantry. Victim B had been badly
6 beaten prior to this time. While Furundzija continued
7 to interrogate Witness A and Victim B, again Witness D,
8 Accused B beat Witness A and Victim B on the feet with
9 a baton. Then Accused B forced Witness A to have oral
10 and vaginal sexual intercourse with him. Furundzija
11 was present during this entire incident and did nothing
12 to stop or curtail Accused B's actions.
13 So what are the charges here? Furundzija
14 then went to the pantry where A and D were located.
15 While he then proceeded to interrogate both A and D,
16 Accused B is alleged to have assaulted A and D with a
17 baton, and then the allegation is that Furundzija is
18 present when the next phase began, which is the sexual
19 assault of Witness A.
20 "By the foregoing acts and omissions,
21 Accused B and Anto Furundzija committed the following
22 crimes," and then it's "torture as a grave breach,"
23 which was, as you know, withdrawn by the Prosecution;
24 count 13, for torture, and count 14, for an outrage
25 upon personal dignity, including rape.
1 There are no allegations of a conspiracy
2 between Accused B and Mr. Furundzija, no allegation of
3 a concert of action, and no allegation of forced
4 nudity, at least with respect to Mr. Furundzija. Why?
5 Because the indictment alleges that a whole series of
6 rapes and sexual assaults happened prior to
7 Mr. Furundzija's arrival, again shortly after the
8 events described in these paragraphs. And it's
9 important to note that at the time that the indictment
10 was filed in 1995, the only witness statement that the
11 Prosecution had from Witness A was her 1995 witness
12 statement which was taken by Brenda Hollis and another
13 Tribunal investigator. The entire indictment is based
14 on that one statement, and it is that statement that
15 was submitted to the reviewing Judge for confirmation.
16 This indictment is consistent with that statement.
17 You will also note, Your Honours, that there
18 is no allegation at any point in time that Anto
19 Furundzija left Witness A in the custody of Accused B,
20 where she was subsequently raped. Why? Because those
21 rapes in the indictment happened temporally before
22 Mr. Furundzija arrived on the scene. Hence, he didn't
23 leave her there, because under the allegations in the
24 indictment, that wasn't the way the case was pleaded.
25 Again, after count 14, Anto Furundzija
1 allegedly is not on the scene anymore. The remaining
2 defendants in those counts are charged with torture,
3 rape and unlawful confinement of Witness A for the
4 subsequent weeks of her ordeal.
5 It is thus clear, Your Honours, that it is
6 the Prosecutor in 1995 that divided these events into
7 three separate periods, 9 to 11, 12 to 14, and then the
8 10-week period, and then the additional counts that
9 deal with it after that.
10 As we proceeded to trial, I want to
11 demonstrate for the Appellate Chamber just how much the
12 Defence was relying on the indictment, which is what we
13 are supposed to do and is the only thing we can rely
15 On April 6th I filed, on Mr. Furundzija's
16 behalf, a motion to dismiss this indictment. I filed
17 it on the basis that under the authority in the Tadic
18 case with respect to torture -- or aiding and abetting,
19 I'm sorry -- the standard is that the aider and abettor
20 must provide direct and substantial assistance to the
21 perpetrator in order to be convicted for aiding and
23 So in the motion to dismiss of April 6, I
24 argued that, as a matter of law, without even having to
25 go to trial, I wanted the Trial Chamber to review
1 whether, as a matter of law, Mr. Furundzija could be
2 convicted of direct and substantial assistance where
3 Accused B, by the very indictment itself, is alleged to
4 have committed at least four rapes prior to
5 Mr. Furundzija's arrival. He continues a rape in the
6 pantry and then holds Witness A captive for 10 weeks,
7 where he continually rapes and sexually assaults her.
8 JUDGE SHAHABUDDEEN: Mr. Misetic, it may help
9 my colleagues and me on the Bench to follow you a
10 little more closely if you did this. You are now
11 addressing us on a motion to dismiss the indictment.
12 Would you like to relate this to a particular ground of
13 appeal? There are six grounds, I believe. Which one
14 are you now busy with?
15 MR. MISETIC: This is still on the fair
17 JUDGE SHAHABUDDEEN: Fair notice. I see.
18 MR. MISETIC: It is the fair notice issue.
19 And what I am trying to demonstrate to the Trial
20 Chamber is our reliance on the indictment and how --
21 I'm not arguing the motion itself. That isn't at issue
22 here. What is at issue is to demonstrate to the
23 Appellate Chamber that the defendant and his counsel
24 relied on the fact that this is what the Prosecution
25 had pleaded, namely, that these rapes had taken place
1 prior to Mr. Furundzija's arrival. Ultimately, the
2 Trial Chamber denied our motion. But my point to you
3 is that this was still going to be an issue at trial
4 for us, and we were preparing for trial. And one of
5 the bases for the Defence was going to be the very fact
6 that, in closing argument, we were going to argue it
7 can't be direct and substantial assistance where this
8 Accused B engaged in this criminal conduct several
9 times before, and then for 10 weeks after.
10 JUDGE SHAHABUDDEEN: Don't by any means allow
11 me to divert you.
12 MR. MISETIC: Your Honour, this is as much
13 for you as it is for me. So if at any time I -- I
14 appreciate when you interject whenever something is
15 unclear to you, and I look forward to answering your
16 questions. So I would ask all of the members of the
17 Appellate Chamber to do the same.
18 JUDGE ROBINSON: Mr. Misetic, I am trying to
19 follow you. You say the incidents in counts 9 to 11,
20 in the large room, took place when Mr. Furundzija was
21 not there, but in counts 12 to 14, paragraph 26, there
22 was a rape, allegedly, in his presence a rape.
23 MR. MISETIC: Right. What I am trying to
24 show is Your Honours -- and I will demonstrate a couple
25 of more things. But to answer that, yes, you are
1 correct, but the rape he is alleged to have been
2 present for is the rape that happened in the pantry.
3 So in preparing for trial, here is what we
4 thought the issues in the case were: A, whether --
5 first we were going to argue that she wasn't credible,
6 because we deny that this incident ever took place, but
7 even assuming that the Trial Chamber were to find that
8 it did with respect to this oral threat and the rubbing
9 of the knife, we were going to make a legal argument
10 also that this doesn't rise to the level of torture.
11 Then with respect to paragraph 26. That is
12 where Witness A and Witness D are allegedly confronted
13 in the pantry and Witness A is raped in
14 Mr. Furundzija's presence.
15 So we do not appeal on the basis that we
16 didn't have fair notice of that charge. What we are
17 appealing is, if you look back on what the Trial
18 Chamber found in the large room, and you will see that
19 as we go on, the Trial Chamber went back in the
20 judgement and put Mr. Furundzija from here and put him
21 here [indicating]. And it said that he started the
22 interrogation, if you recall. And that's why I went
23 through this with the Appellate Chamber first.
24 He started the interrogation, and then when
25 he was questioning, that's when Accused B first arrives
1 on the scene.
2 THE INTERPRETER: Would the counsel please
3 slow down.
4 MR. MISETIC: So in that --
5 JUDGE SHAHABUDDEEN: Mr. Misetic, we have
6 another call from the translators. You've heard that.
7 MR. MISETIC: -- I apologise.
8 As I will demonstrate later, Judge Robinson,
9 the argument that we have, then, is that all of these
10 conclusions about concert of action, about that
11 Furundzija was the interrogator from the start, about
12 leaving her in the room, where she was subsequently
13 raped by Accused B, all of those things, as a matter of
14 law, are impossible if -- if the Trial Chamber -- I'm
15 sorry. If the Prosecution had proved this case at
16 trial, then the judgement would, as a matter of law,
17 would not have been able to be -- would not have been
19 Had the Prosecution proved this case, they
20 could not have proved the judgement at trial. And I
21 don't know if you follow me on that, but the fact of
22 the matter is all of these things are alleged to have
23 happened before Furundzija's arrival, and then he
24 appears. And if you read the judgement or the two
25 exhibits I started off with, that's not what the Trial
1 Chamber found.
2 Here again is A1. This is the large room.
3 This is what the judgement says, ultimately.
4 Furundzija in the room before Accused B. Furundzija
5 commenced the interrogation without Accused B. Then B
6 arrives. Then B grabs her by the hair, puts a knife to
7 her throat, and forces her to undress. Furundzija
8 continues to interrogate Witness A while all of this is
9 going on.
10 Well, under the indictment that's
11 impossible. And more importantly, this is what we
12 prepared the Defence on. He is convicted on this, on
13 the large room. He is convicted on 12 and 14, but on
14 the basis of allegations that are in 9 through 11, as
15 well as 12 through 14.
16 And if you note, for all of this conduct,
17 Accused B was facing six counts; right. Furundzija is
18 facing three. So by the very way that the indictment
19 is separated, B's conduct is more severe and requires
20 more sanction than Furundzija's, at least as alleged in
21 the indictment.
22 And it is from this basic document, as I
23 said, that we then, as his lawyers, prepare the case.
24 And the case is all of this happens, then Furundzija
25 arrives at the end of this, then this happens in the
1 pantry. So that's what we prepared for trial on.
2 I think, in a couple of moments, this
3 argument will be even more clear.
4 While we are doing this -- I don't need to
5 use those to explain something else. On that motion to
6 dismiss that I was talking about earlier, the Court set
7 an oral argument on that motion for the 29th of April,
8 and at that hearing again the Trial Chamber denied the
9 motion. But this is what Judge May told me, because I
10 also made more arguments -- I had made an argument that
11 we still did not know the factual bases of the
12 allegations. So here is what Judge May said to me
13 directly, and I quote --
14 JUDGE SHAHABUDDEEN: Mr. Misetic, would you
15 just help me on one point. Possibly I wasn't following
16 you as closely as I ought to have done. The document
17 which is marked A4, you have a paragraph 25 at the
18 top. And in lines 2 and 3, I read this: "On or about
19 15 May 1993, shortly after the events described in," I
20 think you said, "paragraphs 23 and 24 (sic)" et
21 cetera. Now, those words do not seem to appear in
22 paragraph 25 of the indictment.
23 MR. MISETIC: I think what you are looking at
24 is the amended --
25 JUDGE SHAHABUDDEEN: The amended indictment.
1 MR. MISETIC: And I am going to get to that
2 at the moment. But what happened was -- and if you
3 allow me to finish --
4 JUDGE SHAHABUDDEEN: Then I will not
5 anticipate you. I will allow you to reach it in due
7 MR. MISETIC: Let me just make a note of
8 that, so I don't forget.
9 Again, to go back to that hearing. Judge May
10 said the following to me: "It is clearly right that
11 you have all of the material before the trial so that
12 you can prepare for it properly, and also right that
13 you know the way in which the Prosecutor puts the case,
14 how do they put the case against your client, how do
15 they say that he was involved in these offences. All
16 that is clearly so, and in due course we will find
18 The due course that Judge May is referring to
19 there is that the Trial Chamber agreed with our
20 argument that this indictment still was too vague. So
21 they ordered the Prosecution to file by May 1 a
22 document which would specify the charges for the
23 defendant as he prepares for trial. And they did so.
24 And then, I believe about three weeks later, the
25 Prosecutor had to file their pre-trial brief. So they
1 made more factual assertions about what they intended
2 to prove at trial. I think it was filed on the 22nd of
3 May, so about 22 days after they filed this pleading in
4 response to a Trial Chamber order.
5 So now, as you know, I have indicated that our
6 reliance was on the fact that several assaults and
7 rapes had happened in the first room. We get the
8 Prosecutor's reply, and it says -- I'll skip the first
9 paragraph: "Witness A was taken to a house behind the
10 Bungalow and waited for the boss to appear. One man,
11 Accused B, forced Witness A to undress, whereby he
12 repeatedly sexually assaulted her and threatened her
13 with a knife and a revolver."
14 Okay. Key paragraph: "After this, after
15 this, the accused, Anto Furundzija, came into the room
16 and said to Witness A, who was still in a state of
17 forced nudity, 'Now, lady, interrogation period.' And
18 then he rubbed his knife on the inside of her thigh and
19 lower stomach and threatened her again orally.
20 "Then the accused and Accused B and another
21 Joker removed Witness A to an adjacent room that she
22 refers to as the pantry. Witness D was then brought
23 into this room. Furundzija continued his line of
24 questioning while Accused B beat both Witness A and
25 Witness D on their feet with a baton."
1 The point is, now on this May 1 document, our
2 reading of the indictment is absolutely confirmed.
3 Several events, i.e. 9 through 11 against Accused B in
4 the indictment, happened before Furundzija arrives.
5 After this the accused, Anto Furundzija, came in.
6 So our theory about direct and substantial
7 assistance, which is something we intended to prove at
8 trial -- something we intended to show at trial and
9 argue, was still clearly relevant because they are
10 continuing to allege that something happened before.
11 In their pre-trial brief, again the same
12 thing: "Witness A was taken to the barracks, located
13 behind the Bungalow, where she was forced to dance nude
14 in front for the soldiers and then was threatened with
15 a knife and then repeatedly sexually abused by a member
16 of the unit.
17 "Anto Furundzija, the local commander,
18 arrived and immediately began to interrogate Witness A,
19 even though she was in a state of nudity. While being
20 questioned by Anto Furundzija, the other soldier ..."
21 and here is the key again "... who had previously raped
22 Witness A."
23 So again, confirmation of the indictment,
24 confirmation of the May 1 pleading. And now,
25 approximately 15 days before trial, we get the
1 pre-trial brief, where we are told this is what they
2 are going to allege. This is their theory of the case.
3 Accused B shows up, rapes her repeatedly,
4 sexually assaults her. At that point Anto Furundzija
5 is alleged to have arrived. As I stated earlier, this
6 is entirely consistent with the 1995 witness statement
7 of Witness A, upon which the indictment was initially
9 And then it continues on, that they were then
10 taken to the pantry, where then Furundzija conducted
11 this interrogation in the pantry of both D and A, and
12 that the rape and sexual assault then transpired in his
14 So how are we preparing for trial as the
15 Defence? All we can do is look at the indictment, we
16 go to the Trial Chamber several times prior to trial
17 and say, "We need more facts to prepare this case."
18 The Trial Chamber agrees, grants our motion, orders
19 them to specify the facts, because we are entitled to
20 rely on the facts and know the facts before trial. We
21 get that document. They then, for the third time, 15
22 days before trial, affirm their theory of the case.
23 So what happens then? Witness D was
24 obviously a critical witness in this case. I will tell
25 the Appellate Chamber that the Defence made every
1 effort to find Witness D, because obviously he has
2 extremely relevant information as to Mr. Furundzija's
3 guilt or innocence. No one could find him.
4 I found him, but he wouldn't talk to me, I
5 should say. So we were left to do what we had to do at
7 About the time that the Prosecutor files the
8 pre-trial brief, which is 15 days or so before trial,
9 the Prosecutor locates Witness D, for the first time.
10 The Prosecutor takes the statement of Witness D and
11 Witness D's -- Witness D's statement says: "I know for
12 sure that during the time that rapes and sexual
13 assaults occurred in the pantry by Accused B, I know
14 for sure that Anto Furundzija was not present in the
16 Obviously, when we got that witness
17 statement, Your Honour, about 10 days before trial, we
18 were very interested in calling Witness D as a Defence
19 witness, because that information, to us, is the heart
20 of the case, the allegation that Mr. Furundzija
21 interrogated A and D while they were being raped, and
22 now here D gives a statement to the Prosecutor where he
23 says Furundzija wasn't present in the room.
24 So what happens in this 10-day period between
25 that pre-trial brief and the opening of the trial on
1 the 8th of June? Well, first --
2 JUDGE ROBINSON: Are you finished with your
3 notice point? I thought you were moving on to a point.
4 MR. MISETIC: I will clearly specify when I
5 move on to something else.
6 JUDGE ROBINSON: You are still on the notice
8 MR. MISETIC: Yes. Here what's happens
9 then. Because the Prosecution had withdrawn count 12,
10 which was the grave breach count, in March, Judge
11 Mumba, as the Presiding Judge, had ordered the
12 Prosecution prior to trial to file an amended
13 indictment which would redact count 12. So it was
14 purely an effort to clean up the indictment so that
15 this count, which was no longer being alleged, wouldn't
16 appear in the indictment anymore.
17 And what happened was -- now, this is for
18 Judge Shahabuddeen, to answer your question that you
19 posed earlier. This is the indictment. And it says:
20 "Shortly after the events described in 21 and 22."
21 When they amended the indictment, which was
22 only supposed to withdraw this count, in the amendment
23 somebody redacted this. So that's where that
24 disappeared. That was not by order of the Trial
25 Chamber. That was not by motion of the Prosecution.
1 It just disappeared in the amended indictment.
2 Now, again, so what happens? To understand
3 what happened, you have to understand that after the
4 indictment was filed, and after that first witness
5 statement taken by Brenda Hollis was taken, the
6 indictment was then filed, and then the Prosecutor
7 comes into the possession of three additional
8 statements of Witness A. Two are from 1993, one is
9 from 1997. From our perspective, those statements were
10 materially different than her 1995 statement, so we
11 intended to -- again, as we prepared our defence, we
12 intended to impeach Witness A's credibility using those
13 three additional statements.
14 JUDGE SHAHABUDDEEN: Mr. Misetic, I believe
15 what my colleague Judge Robinson had in mind was this:
16 that you have six grounds of appeal and you're still on
17 ground 1, so we're a little preoccupied in mind as to
18 how you propose to reach the other grounds.
19 MR. MISETIC: Several of the counts I can
20 probably do in about 20 minutes to half an hour.
21 JUDGE SHAHABUDDEEN: Fine, fine.
22 MR. MISETIC: I will tell the Appeals Chamber,
23 the three that I intend to spend most of my time are on
24 notice, on Witness D's testimony and its conflict and
25 the Trial Chamber's obligation under the European
1 Convention, and sentencing.
2 JUDGE SHAHABUDDEEN: Thank you.
3 JUDGE ROBINSON: I believe it would be
4 helpful if you would just summarise the essence of the
5 notice point. I'm interested in what you did at the
6 trial to deal with the lack of notice that you said you
8 MR. MISETIC: Absolutely. Here's what
10 Again, we came to trial and had prepared for
11 trial again, as I had indicated. So Witness D comes to
12 trial -- or Witness A, I'm sorry, Witness A comes to
13 trial and testifies now that instead of all of these
14 rapes and sexual assaults by Accused B had happened in
15 the large room prior to trial, she testifies, "I showed
16 up and then Anto Furundzija arrived, and then Anto
17 Furundzija started to interrogate me and he conducted
18 this interrogation, and then Accused B raped me," et
19 cetera, and changed the theory of the case. So now it
20 wasn't that Furundzija was sort of there in the middle
21 at some point, but he was there at the beginning and
22 they were -- Accused B and Furundzija were working
23 together throughout this whole process.
24 Well, my colleague at the trial and I
25 immediately objected, and that is in the record. We
1 objected. Judge Mumba said, "Let Witness A finish her
2 testimony, and then we'll hear your objection." We
3 objected, and I have it here in my notes; I was going
4 to address that.
5 In arguing this motion, I made clear to the
6 Trial Chamber the following two critical points: (A),
7 we were relying on the indictment, so that whole direct
8 and substantial assistance argument which I described
9 was that April 6 motion was contingent upon the
10 allegation that all of this happened before
11 Furundzija's arrival, so we were now prejudiced at
12 trial if they were going to change their theory of the
14 The second critical point I made is that
15 because there were no allegations that Furundzija was
16 present in the large room during all of these events, I
17 made no effort to go to Bosnia to find witnesses. She
18 indicated 40 soldiers were there. There was no need,
19 as his Defence counsel, to go find witnesses to explain
20 that he wasn't there.
21 Okay, I'll wrap this up.
22 JUDGE ROBINSON: Did you seek an
24 MR. MISETIC: I sought to strike her
25 testimony, and it was granted. That's the point here.
1 I said, "Strike her testimony with respect to
2 everything she said in the large room and only accept
3 it with respect of paragraphs 25 and 26," and they
4 granted my motion. So now we're at trial. We won. We
5 were right.
6 When you, as the Appeal Chamber, retire now,
7 consider the fact that this whole argument that I've
8 laid out for you, the Trial Chamber entered an order on
9 the 12th of June and the 15th of June, saying as
10 follows: "To allow the Prosecution to introduce
11 Witness A's inconsistent testimony now would be a
12 fundamental violation of the accused's right to a fair
13 trial. We hereby will not consider her testimony with
14 respect to anything other than the allegations in 25
15 and 26," which is that Furundzija arrived -- in 25, I'm
16 sorry, it was that he questioned her and then D made an
17 oral threat and rubbed the knife, and then the pantry.
18 So now we're at trial. We argued to the
19 Trial Chamber that we were being prejudiced, and they
20 granted our motion. So we proceed not going back to
21 find anything about the large room, because why would I
22 do that when I just won the motion?
23 JUDGE SHAHABUDDEEN: Mr. Misetic, we should
24 be suspending now. But perhaps you could answer, very
25 briefly, one question. You moved to strike the
2 MR. MISETIC: Yes.
3 JUDGE SHAHABUDDEEN: Did the submissions
4 which you made in support of the motion to strike the
5 evidence include any reference to the deletion of those
6 words to which I have referred in paragraph 25 of the
8 MR. MISETIC: They did not, but there was no
9 need to, because we had relied on -- we had all the
10 pre-trial pleadings, et cetera, and there was no motion
11 from them to amend. It was just, "Clean it up." And
12 what happened was we won the motion to strike her
13 testimony, so we had no reason to rely.
14 I hope that answers Judge Robinson's question
16 JUDGE SHAHABUDDEEN: Judge Robinson.
17 JUDGE ROBINSON: Yes.
18 JUDGE SHAHABUDDEEN: Judge Robinson is
20 Then we will suspend now for 15 minutes and
21 resume at 20 past the hour. Thank you.
22 --- Recess taken at 11.07 a.m.
23 --- On resuming at 11.30 a.m.
24 JUDGE SHAHABUDDEEN: Mr. Misetic, you have
25 the floor, as well as our apologies for being a few
1 minutes behind hand. Thank you.
2 MR. MISETIC: No problem. Thank you, Your
4 To try to summarise this issue, we again made
5 our arguments at the trial level, we preserved the
6 record. What's of most importance is we won the
7 motion, so that when I said in my introduction that we
8 were misled, actively misled, the misleading part was
9 that in granting our motion, the Trial Chamber, in
10 effect, told the Defence that, "No, you don't need to
11 call any witnesses about whether Mr. Furundzija was
12 present in the large room, since that is not being
13 charged against you," and so we didn't in our case in
15 The effect -- what happened at judgement,
16 however, shows that the Trial Chamber committed error
17 in not following its own June 12 and June 15 orders.
18 So in addition to all the notice issues that we had
19 talked about, and specifically now an issue was raised
20 with respect to an amended indictment and the portion
21 being stricken, once on the 12th of June the Trial
22 Chamber granted our motion and told us our argument is
23 right and that Mr. Furundzija's right to a fair trial
24 is threatened if we don't take action to strike her
25 testimony, then their failure to do so in the judgement
1 amounts to reversible error.
2 I intend to spend about another five minutes
3 on this issue, Your Honours, and then I'll move on.
4 This issue can be summarised by the following
5 chart, which appears also in our appellate brief. It's
7 JUDGE SHAHABUDDEEN: Mr. Misetic, I would
8 like to follow you. Do I collect that what you are
9 saying is this: that as a result of your successful
10 motion on inadmissibility and the decision of the Trial
11 Chamber to exclude certain evidence, you were left with
12 paragraphs 25 and 26 of the amended indictment. Those
13 were the paragraphs on which you relied for notice as
14 to what were the allegations you had to meet. And your
15 case is that the testimony or the findings of the Trial
16 Chamber diverged from those paragraphs.
17 Perhaps I do not understand you correctly.
18 MR. MISETIC: Yes. That is exactly what I am
19 saying. And I will demonstrate how. I think I see
20 sort of where you are leaning with that, so I am going
21 to try to address that.
22 JUDGE SHAHABUDDEEN: No, Mr. Misetic, I am
23 not leaning at all. I am just trying to grasp your
24 submissions at this stage.
25 MR. MISETIC: Better said. There is an issue
1 that's been raised in my head that I would like to
2 address, to clear up any ambiguity.
3 I am exactly saying that the Trial Chamber
4 did not adhere to its own order to apply paragraph 25
5 and 26.
6 And in one sentence I will say, if paragraph
7 25 and 26 could be read to allow testimony that Anto
8 Furundzija was there from the beginning and was present
9 in the large rooms during rape and sexual assault, then
10 there would be no reason for the Trial Chamber to have
11 struck the testimony in the first place.
12 So our interpretation, as I took you through
13 it of what happened in the Pre-Trial stage, is
14 unquestionably the interpretation that the Trial
15 Chamber agreed with in granting our motion and in
16 finding that to allow the testimony would be a
17 fundamental breach of their right to a fair trial.
18 This is, again -- in brief, you have this
19 chart in your books. This is what was charged before
20 trial, and the box indicates where Furundzija is
21 alleged to have appeared. All of these events happened
22 before, as I've repeated numerously throughout this
23 argument. And then he is charged with asking her
24 questions in the large room. At the end of all of
25 this, a verbal threat, coupled with the rubbing of a
1 knife, and the issue for the Trial Chamber was, if this
2 is torture. Then he leaves the big room with Witness
3 A, takes her to the pantry, and then the interrogations
4 and the sexual assaults in front of Witness D.
5 And this is what -- again, the Trial Chamber
6 granted our motion at trial that this is the correct
7 interpretation of what the charges are. For the first
8 time, in the judgement, we learn that this is what the
9 Trial Chamber was going to do. She arrives, then
10 Furundzija arrives and begins to interrogate her.
11 So you can see from the juxtaposition here
12 the difference in charges and in substance. And then I
13 am not going to take up my time with going through
14 this, since you have copies in your book. But it's
15 clear that it's the same thing that I've shown
16 throughout my morning argument.
17 The judgement winds up, putting him at the
18 beginning, and then accused B arriving, and from these
19 factual conclusions come several conclusions in the
20 judgement about concerted action, about dividing the
21 process of interrogation, et cetera, et cetera. And
22 then simultaneously reject one of the principal
23 arguments of the Defence at trial, which was the whole
24 direct and substantial assistance, and whether there
25 can be directive and substantial assistance if the
1 perpetrator actually committed all of these crimes on
2 multiple occasions prior to the alleged aider and
3 abettor's appearance on the scene.
4 JUDGE ROBINSON: Are you saying the Trial
5 Chamber relied for its judgement on the evidence in
6 relations to counts 9, 10 and 11?
7 MR. MISETIC: Absolutely. And in addition --
8 there is no question that they did, and there is no
9 question that they wound up putting him there at the
10 beginning, and that these findings are inconsistent
11 with the way the indictment is set out.
12 The other --
13 JUDGE ROBINSON: The judgement is not
14 explicable, you are saying? You don't rely on the
15 evidence in the counts 9, 10, and 11? Are you saying
16 the judgement is not explicable in absence of a
17 reliance on evidence from counts 9, 10, and 11?
18 MR. MISETIC: Correct. As I tried to
19 articulate earlier, there is no -- there is no
20 explanation for why -- how the Trial Chamber could have
21 granted the motion and said it was only going to
22 consider evidence consistent with 25 and 26. There is
23 no explanation for why they granted our motion in the
24 first place, if -- two things: One, they were going to
25 accept her testimony at trial, which was contrary to
1 the indictment that Furundzija was there at the
2 beginning. And two, after having said that they
3 wouldn't consider evidence of the accused's presence or
4 being present during rape and sexual assault in the
5 large room, they then introduced that evidence, but
6 make it appear as though Furundzija was there first and
7 then left, knowing that this woman was going to be
8 raped by Accused B upon his exit from the large room.
9 And what we are saying is that was never
10 alleged in the indictment, and is in fact contrary to
11 not only the indictment, but all of the pre-trial
12 pleadings and finally the Trial Chamber's own order of
13 the 12th of June.
14 And again, all I can say, if this argument
15 were wrong, then the June 12th order is entirely
16 inexplicable, because they accepted our argument and
17 found that all of this was happening and was
18 threatening our right to a fair trial.
19 And I then remind you again, had they not
20 granted the order, had they said, "Mr Misetic, you are
21 wrong; the amended indictment allows the Prosecutor to
22 introduce this evidence and rely on it for conviction,
23 by putting your client there earlier," then I would
24 have had the opportunity to seek a recess on the basis
25 of that order, and then travel back to Bosnia and try
1 to find witnesses about what happened.
2 But now we were -- we were caught completely
3 unprepared, because not only did they grant the motion
4 and then not rely on it, but we also were then misled
5 about whether we had to put a case on in chief about
6 the large room. So in both --
7 JUDGE ROBINSON: Forgetting the motion. The
8 evidence is relevant. Forgetting the motion, it would
9 seem to me that the evidence in counts 9, 10 and 11 is
10 relevant evidence to what took place in counts 12, 13
11 and 14. But you are saying that in the way that the
12 trial was conducted, you made a motion, the motion was
13 granted, and as a result of that, you didn't line up
14 your Defence in a particular way.
15 MR. MISETIC: I need to correct you on one
16 point and agree with you on another.
17 First, I wanted the evidence -- I agreed with
18 you that the evidence in counts 9, 10 and 11 is
19 relevant, and I wanted it introduced at trial through
20 Witness A into evidence in the way it appears in counts
21 9, 10 and 11. What I am saying is the judgement is
22 inconsistent with counts 9, 10 and 11. So they didn't
23 prove 9, 10 and 11. They proved something else. They
24 allege now that Furundzija was there at the beginning
25 of count 9, which isn't the way the indictment is set
1 out. So the defendant is the one that wants to confirm
2 your conclusion that 9, 10 and 11 are relevant.
3 They are relevant because his Defence was
4 predicated, at least in part, on count 9, 10 and 11;
5 namely, this woman was raped and sexually assaulted
6 numerous times before he allegedly appeared. And
7 that's what 9, 10 and 11 say.
8 So I agree with you. And then the other
9 portion that I agree with you on is: And then once
10 they granted our motion -- because if you look at the
11 transcripts, there is a point in my argument on this
12 motion, when I specifically told the Court: What I
13 want to know from the Court is are we facing
14 allegations that Anto Furundzija was there at the
15 beginning? If we are, we need to know that now so that
16 we can put on a case in chief.
17 So we have double prejudice. A, we want 9,
18 10 and 11 to be into evidence as pled; and B, if they
19 weren't going to do that, if they said the Defence
20 motion, which is now on appeal substantively the same,
21 is wrong, then at least we would have had the
22 opportunity to, at trial, try to introduce evidence.
23 But what happened was the motion was granted, the
24 Defence proceeds on 25 and 26, and then relied on D to
25 knock out the allegations in 26, namely, D's testimony
1 that D only -- D only testifies that B is the
2 interrogator in the pantry, and never that Furundzija
3 is the interrogator in the pantry. And that was our
5 The only rape and sexual assault he is
6 alleged to have interrogated anyone in, happened in the
7 pantry. And we had a Prosecution witness come to trial
8 and testify, to use language in the Prosecutor's
9 appellate brief, testified inconsistently with Witness
10 A on that issue. We believe contradictory to, but I
11 don't want to argue semantics here on language.
12 JUDGE SHAHABUDDEEN: Just let me understand
13 you. Is it your case as follows: that paragraph 25 of
14 the amended indictment makes no allegation of rape,
15 does it?
16 MR. MISETIC: Correct.
17 JUDGE SHAHABUDDEEN: Your case is you moved
18 successfully to strike evidence of rape in relation to
19 the large room.
20 MR. MISETIC: No. My argument is: Witness
21 A's testimony should only have been admitted for
22 purposes of proving the allegations in paragraph 25.
23 That is to say, it's not just striking the testimony
24 that he was present for rape in the large room; it is
25 that her testimony, in placing him there at the
1 beginning, changes the case. In terms of scienter, in
2 terms of -- I forget the language now -- conspiracy, in
3 terms of concert of action. It's crucial.
4 So, from our perspective, we were agreeable
5 at trial to the language of the order, which was: If
6 the Trial Chamber wanted to use Witness A's testimony
7 to prove that Anto Furundzija was present in the large
8 room and started asking questions, at which point in
9 time Accused B threatened her and rubbed his knife on
10 her body, for those purposes we agree that that was
11 alleged before trial, and we had notice of that
12 allegation. So if the Trial Chamber wanted to use that
13 testimony for that purpose, it was proper. But then we
14 had all the legal issues that I talked about, whether
15 it amounts to torture, et cetera.
16 Any other purpose --
17 JUDGE ROBINSON: Do you have at hand the
18 precise wording of the Trial Chamber's ruling?
19 MR. MISETIC: I have -- just a minute. I
20 have document 274 in the record. And the ruling was as
21 follows: "It will only consider as relevant Witness
22 A's evidence insofar as it relates to paragraphs 25 and
23 26, as pleaded in the amended indictment against the
25 Then the Prosecution filed a motion to
1 clarify, and then they go on and say: "The Trial
2 Chamber ruled inadmissible --" I'm sorry, this is
3 document 281 at pages 1471 and 72. "The Trial Chamber
4 rules inadmissible all evidence relating to rape and
5 sexual assault perpetrated on --" I think it says
6 "Victim A", but it should say "Witness A by the
7 individual identified as Accused B in the presence of
8 the accused in the large room," and then further
9 ordered that it would admit all evidence relating to
10 the allegations detailed in paragraph 26 of the
12 JUDGE SHAHABUDDEEN: Mr. Misetic, do I
13 understand you correctly to be submitting that contrary
14 to that ruling, the Trial Chamber proceeded to find and
15 to rely on the presence of the accused while an act of
16 rape was being committed in the large room?
17 MR. MISETIC: No. My argument is based on
18 that it will only consider as relevant Witness A's
19 evidence insofar as it relates to paragraph 25 and 26
20 as pleaded.
21 JUDGE ROBINSON: That's converse from what
22 the Presiding Judge just said, isn't it?
23 MR. MISETIC: Converse?
24 JUDGE ROBINSON: Is that the converse to what
25 the Presiding Judge just said?
1 MR. MISETIC: I was afraid that your reading
2 of that would be too limited, in that because they gave
3 that order, then in the judgement what winds up
4 happening is they say, "Yes, we gave the order, so we
5 won't consider that he was physically present while
6 these rapes were taking place, but we will consider
7 that he left her there to be raped by Accused B," which
8 for our purposes, Your Honours, is not much of a
9 substantive difference if he's present or leaves her to
10 be present in the course of this entire judgement and
11 putting him there at the beginning. The fact is that
12 this is, in fact, inconsistent with the amended
13 indictment as pleaded in 25 and 26.
14 Again, had they gone to judgement and then
15 built a judgement around the following facts, and that
16 is all of this happened to Witness A prior to
17 Furundzija arriving, he arrives, and now we're going to
18 address what happened to her in terms of the rubbing of
19 the knife during questioning, address all the legal
20 issues with respect to that, and then go into the
21 pantry and determine what exactly happened in the
22 pantry. Whether Witness A is right or Witness D is
23 right in terms of whether Furundzija was ever involved
24 in any interrogation in the pantry, et cetera, that,
25 from our perspective, was what the Trial Chamber was
1 supposed to be doing in arriving at a judgement.
2 Instead, where we were misled and where we have
3 suffered serious prejudice is that they put him at the
4 beginning and then alleged that this was all, in
5 effect, a conspiracy and a concert of action, when it's
6 charged as Accused B is this rapist and torturer from
7 here through August 1, which is ten weeks later, and
8 Furundzija is alleged to have arrived somewhere in the
9 middle of all this and did this.
10 JUDGE SHAHABUDDEEN: Does paragraph 25 of the
11 indictment itself, of which you had notice, specify or
12 stipulate any particular sequence of events?
13 MR. MISETIC: Yes, it does, Your Honour. Not
14 only does the indictment do so --
15 THE INTERPRETER: Microphone, please.
16 MR. MISETIC: There's a couple of things to
17 keep in mind. First -- yes, that's it.
18 You need to keep three things in mind on that
19 question. (A), if you read paragraph 25, it says,
20 again, "shortly after the events described in
21 paragraphs 21 and 22."
22 JUDGE SHAHABUDDEEN: I should qualify my
23 question by saying that I meant to ask it in relation
24 to this finding or allegation of rape.
25 MR. MISETIC: Sorry, can you rephrase?
1 JUDGE SHAHABUDDEEN: Does paragraph 25
2 stipulate any particular sequence in respect of any
3 suggestion of rape?
4 MR. MISETIC: Yes. The rapes occur in
5 paragraph 24, so there is no -- I mean it says,
6 specifically, that he penetrated Witness A's mouth --
7 Accused B penetrated Witness A's mouth, vagina and anus
8 with his penis; rape. Twenty-five then says "after the
9 events described in 23 and 24."
10 And then keep in mind two additional things.
11 Keep in mind that in order to avoid any ambiguity, we
12 filed our pre-trial motions to specify, which they were
13 ordered to do, and then that takes us to the two
14 documents I talked about earlier, May 1 and May 22.
15 JUDGE SHAHABUDDEEN: Where are the words
16 "after the events?"
17 MR. MISETIC: Right here. "The Prosecutor
18 may want to apply --"
19 JUDGE SHAHABUDDEEN: No. In paragraph 25 of
20 the indictment, are there any words which read "after
21 the events described in paragraph 24"?
22 MR. MISETIC: Yes. I think you may be
23 looking at the amended indictment instead of the --
24 JUDGE SHAHABUDDEEN: I am, indeed.
25 MR. MISETIC: I thought you asked me about
1 the indictment.
2 JUDGE SHAHABUDDEEN: Well, the amended
4 MR. MISETIC: And that's where I'm saying
5 several things. There is no legal basis that that
6 should have been redacted, and it is an oversight,
7 because you can look at the transcripts and it's clear
8 that by sua sponte, the Bench ordered the Prosecution
9 to remove count 12. There was never any discussion
10 about removal of "after this". In the amended
11 indictment also, they redact everything other than 13
12 and 14. To us, there was no critical issue there,
13 because for our purposes, it is a redacted indictment
14 so as to clean it up. But there was no substantive
16 I would again say that in their pre-trial
17 pleadings, they allege that things happened
18 beforehand. On appeal, in their response brief, they
19 have conceded that the pre-trial brief does allege that
20 certain events took place prior to Mr. Furundzija's
21 alleged arrival.
22 And then finally my argument is worst-case
23 scenario, if you were to say that, "Well, perhaps the
24 fact that this doesn't appear in the amended indictment
25 puts you on notice," in addition to my argument that
1 there was never an amended indictment in the legal
2 sense of Rule 50 because there was never any such
3 motion, that's point 1. And point 2, once the Trial
4 Chamber affirmed our interpretation at trial, they
5 granted our motion telling us we were right, then we
6 had a right to rely on that order.
7 Okay. Sort of scattered here, but --
8 JUDGE ROBINSON: You have a right to full
9 defence, which was adversely affected?
10 MR. MISETIC: Absolutely, because, as I'm
11 saying, the only thing we wanted was fairness. If the
12 Trial Chamber was going to be of the opinion that, "You
13 can admit Witness A's testimony, the amended
14 indictment, you know, somehow now doesn't have this
15 language," et cetera, fine, because we had not yet put
16 on our case in chief on that point. And I specifically
17 said, "If you're going to rule that way, I need to
18 know. I need a recess, I need to go to Bosnia and now
19 start finding witnesses about what happened in room 1,
20 since Witness A said at trial that this happened in
21 front of approximately 40 people."
22 JUDGE ROBINSON: That's why I don't see it so
23 much as a notice point, because if an indictment is
24 drafted in a particular way and at the trial evidence
25 is adduced as to facts that were not in the indictment,
1 I mean to my mind that doesn't invalidate the
2 indictment. I think it would entitle you to ask for an
3 adjournment so that you can prepare and meet the new
4 allegations of facts.
5 But I think your real point is that on the
6 basis of the ruling that was given, you had a proper
7 expectation that the case could be managed in a
8 particular way, and therefore, as you said, you did not
9 seek to call any evidence in relation to the evidence
10 arising out of counts 9 to 11.
11 MR. MISETIC: I would respectfully disagree
12 with you with respect to the earlier portion about
13 whether we're entitled to rely on the indictment at
14 trial, but I would -- and also say that this argument
15 that I'm espousing now was agreed to by the Trial
16 Chamber. But you're absolutely right with respect to
17 the fact that, you know, regardless ultimately of that
18 issue, there is the other issue of once they ruled in
19 our favour, we were entitled to rely on that.
20 One way or the other, we raised this issue,
21 and if they were going to rely on it at judgement, then
22 we should have been told that then, our motion should
23 have been denied, or they should have ordered a recess,
24 or something to that effect. But to grant the motion
25 and then leave us in a position of not going to find
1 witnesses after we specifically, on the record, told
2 them that that is what we needed to do if that was
3 going to be the Trial Chamber's ruling, then we would
4 have been prejudiced.
5 JUDGE SHAHABUDDEEN: Mr. Misetic, what parts
6 of the judgement do you rely on as demonstrating that
7 the Trial Chamber walked back, as it were, on their
9 MR. MISETIC: The first exhibit I gave you,
10 which is A1, do you still have that?
11 THE INTERPRETER: Microphone, please.
12 MR. MISETIC: The first finding that
13 Furundzija was --
14 THE INTERPRETER: The interpreters cannot
15 hear. Could the counsel speak into the microphone,
17 JUDGE SHAHABUDDEEN: Please speak into the
19 MR. MISETIC: I'm going to try to keep
20 pivoting my head.
21 The first finding that Furundzija was in the
22 room before Accused B appeared is one such contrary
23 finding. That he commenced an interrogation without
24 Accused B is another factual finding. I'm assuming --
25 I'm sorry, you're asking me about factual findings as
1 opposed to legal conclusions?
2 JUDGE SHAHABUDDEEN: Factual findings.
3 MR. MISETIC: Okay. The finding in paragraph
4 A that Accused B then arrived is contrary to the order
5 of June 12. That Furundzija asked a question and then
6 Accused B grabbed Witness A by the hair, put a knife to
7 her throat, and forced her to undress, that is
8 completely contrary. And if you read 23 and 24, this
9 event is alleged to have happened in counts 9 through
10 11, not 12 through 14. But now, because they've put
11 them there at the beginning, it's during questioning by
12 Furundzija the knife to the throat was placed. Well,
13 that's inconsistent and that's prejudicial to us,
14 because again -- and all along, keep in mind that when
15 you read these findings, there's an ultimate conclusion
16 that the Prosecution proved concert of action. Well,
17 if all of these things are wrong, Furundzija continued
18 to interrogate Witness A while she was forced to remain
19 naked in front of 40 soldiers.
20 JUDGE SHAHABUDDEEN: Don't let me take you
21 away from the schedule you had.
22 MR. MISETIC: Judge, I'm more than happy, and
23 actually I like it better when you ask questions.
24 JUDGE SHAHABUDDEEN: I appreciate your
25 answers. We'll hear the Prosecution later on and
1 consider what they have to say in response. Thank
3 MR. MISETIC: Okay.
4 Then I'm going to, I think, if the Trial
5 Chamber has no other -- I'm sorry, the Appellate
6 Chamber has no other questions on the issue of notice
7 and the June 12th order, then I will move on to issue
9 JUDGE SHAHABUDDEEN: Yes. [Inaudible]
10 MR. MISETIC: Let me be precise on which
11 issue this is. This is issue 1B and 1C. I am going to
12 argue them together.
13 And this is, again, when I talked earlier in
14 the morning about what is the most pivotal, factual
15 finding in the case, and that is that Mr. Furundzija
16 conducted an interrogation of Witness A while she was
17 being raped and sexually assaulted.
18 There is -- I don't think there is any
19 dispute among the parties or the Trial Chamber that
20 there is a key witness whom everybody agrees was
21 present throughout, and that is Witness D. So Witness
22 D was in the pantry from the beginning of what happened
23 in the pantry, at least through where Mr. Furundzija is
24 alleged to have left the scene.
25 Now, Witness A's testimony was that -- at
1 trial, was that Mr. Furundzija was present inside the
2 room; that accused B's torture, i.e. his beatings and
3 his rape and sexual assault, was parallel to
4 Mr. Furundzija's questioning. In the judgement, based
5 on that testimony, the Trial Chamber concluded that
6 Witness A was raped and sexually assaulted in the
7 course of an interrogation by the accused, and
8 therefore the accused is a co-perpetrator by virtue of
9 his interrogation of her as an integral part of that
11 The problem, from our perspective, is that
12 the judgement is completely silent about the testimony
13 of one of the Prosecution's witnesses, and that is
14 Witness D.
15 In the Prosecution's brief at paragraph 3.73,
16 they concede that the evidence is not dispositive of
17 whether the appellant was engaged in asking questions
18 in the pantry. The appellant's position on appeal,
19 Your Honour, is that the evidence must be dispositive,
20 that is, conclusive on appeal, as to that critical
22 What did Witness D say? If you read his
23 testimony, whereas Witness A puts Furundzija in the
24 room from the beginning, questioning her -- she says
25 questioning Witness D, while he is being beaten by
1 Accused B, then questioning her while she is being
2 raped and sexually assaulted by Accused B.
3 Witness D's version of events at trial was,
4 and he specifically testified, that Accused B started
5 to interrogate him -- it was Accused B who was the
6 interrogator -- then started to beat him; that Accused
7 B started then to interrogate Witness A. After
8 starting his interrogation of Witness A, Accused B is
9 alleged to have raped Witness A in Witness D's
11 The Prosecution put to Witness D, "Where was
12 Mr. Furundzija at this time?" And Witness D says, "He
13 was outside the room."
14 Now, without going into the issue of whether
15 he was actually outside the room or not, I would first
16 submit that there is a substantive difference between
17 their two testimonies: Namely, is Anto Furundzija the
18 interrogator in the pantry of both Witness D and
19 Witness A, as Witness A testifies? Or is Witness D
20 correct, that Anto Furundzija is not in the room, that
21 Accused B is the interrogator, that Accused B -- I'm
22 sorry -- that Accused B is the interrogator of both D
23 and A, and that he is the physical assaulter of D and
24 the rapist of Witness A?
25 This was, by our count, Your Honours, put to
1 the Trial Chamber, according to our count in the
2 record, more than 50 times, and yet the judgement makes
3 no effort to resolve that conflicting testimony or, to
4 take us back to my standard of review, to explain how
5 it applied the standard of beyond a reasonable doubt to
6 those two testimonies.
7 We were entitled, first of all, to an
8 acquittal on the basis of this testimony and, secondly,
9 to an explanation in the judgement as to how this
10 standard of review was applied.
11 I would argue that there is certainly a fair
12 and rational inference in the evidence that Anto
13 Furundzija did not interrogate anyone in the pantry.
14 Some of these conclusions of the Trial
15 Chamber are indeed inexplicable. Here is one
16 conclusion that I wish to call your attention to:
17 "The Trial Chamber finds beyond a reasonable doubt
18 that Witness D was interrogated by the accused in the
20 And yet there is no effort, for example, to
21 explain why the Trial Chamber would accept Witness A's
22 version of that and not Witness D's, who does not
23 testify to any interrogation by Anto Furundzija of him
24 in the pantry.
25 It's inexplicable to me how the Trial Chamber
1 could have accepted Witness A's version of what
2 happened to Witness D, and not Witness D's version of
3 what happened to Witness D. And the problem is
4 compounded by the fact that there is no effort made in
5 the judgement to explain any of this.
6 JUDGE ROBINSON: And your case was that
7 Mr. Furundzija --
8 THE INTERPRETER: Microphone, please.
9 MR. MISETIC: That is the precise point that
10 I put to the Trial Chamber on at least 50 occasions.
11 So there can be no argument that this was a side
12 argument, a fringe argument that I had made that
13 perhaps the Trial Chamber overlooked. Fifty times.
14 JUDGE SHAHABUDDEEN: You put it "50 times,"
15 but was there some evidence on which the Trial Chamber
16 could have concluded as it did? Is your case then
17 this: that the Trial Chamber did not motivate its
18 finding, did not give any reasons for selecting a
19 particular piece of evidence as that on which it had
20 found its conclusion? And/or is your submission this:
21 that the Trial Chamber's finding on that point was not
23 MR. MISETIC: Neither. My submission is not
24 that there was no basis for the finding, but there was
25 no basis for not finding that he wasn't in the pantry.
1 Again, the very nature of the way you pose
2 the question is something that I -- I don't know how to
3 phrase it. It is not an issue of whether the Trial
4 Chamber could reasonably have found something in the
5 evidence to make that conclusion. The burden of proof
6 is beyond a reasonable doubt, so what the issue is, is
7 there a basis in the evidence to conclude that he is
8 not guilty. That's the basis that they should be
9 looking for. And if there is a reasonable basis in the
10 evidence that he is not guilty, that is what "beyond a
11 reasonable doubt" means. And if there is a fair or
12 rational basis, they are required by law to accept it.
13 And from our position, it is unquestionably
14 true that when a Prosecution witness, whom the
15 Prosecution -- whose credibility and whose veracity the
16 Prosecution vouches for, both implicitly and literally
17 at closing argument, and that witness says, "Anto
18 Furundzija was outside the room," when that witness
19 says, "It was Accused B who was the interrogator and
20 rapist in the room," then that, by definition, is a
21 fair -- there is a fair hypothesis that he wasn't in
22 the room and he wasn't interrogating.
23 JUDGE ROBINSON: Not if there was other
24 evidence that he was in the room. Then it would be a
25 matter for the Trial Chamber, as the trier of fact, to
1 determine what evidence it would accept.
2 MR. MISETIC: The question is -- in this
3 particular situation, for the Trial Chamber to reject a
4 witness who is not impeached, who is a Prosecution
5 witness, and who the Trial Chamber has no reason to or
6 gives no reason to say is not a credible witness, then
7 assuming that that is true, in that situation the
8 evidence has to be overwhelming. In other words, there
9 is a videotape that shows that Witness D is wrong and
10 Witness A is right, but where you have conflicting
11 eyewitness testimony, conflicting eyewitness testimony,
12 and you have -- I mean, it's not even my witness; it's
13 the Prosecution's witness.
14 There is clearly a fair inference of
15 innocence there. I don't --
16 JUDGE ROBINSON: I understand that the mere
17 fact that there is conflicting testimony must lead to
18 the -- must give rise to a reasonable doubt. The mere
19 fact that there is conflict in the evidence must give
20 rise to reasonable doubt. Is that your proposition?
21 MR. MISETIC: The fact that in this case we
22 had a witness --
23 JUDGE ROBINSON: Isn't that classically the
24 function of a Trial Chamber, how to assess conflicting
25 evidence, on the basis of demeanour of witnesses, to
1 determine who is reliable, who is credible? Isn't that
2 a classical function of a Trial Chamber?
3 MR. MISETIC: One problem is that we don't
4 know how they resolved that issue. So all we are left
5 to do here is speculate as to what the Trial Chamber's
6 ultimate conclusion was, whether they even considered
7 Witness D's testimony. The fact of the matter is, the
8 Prosecution put that evidence in. We relied on it.
9 If -- assuming arguendo, that that is the
10 correct position, if the Trial Chamber had a reasonable
11 -- had a basis to conclude that Witness D's testimony
12 was less credible and less reliable than Witness A's
13 testimony, then the other argument is we have a right
14 to know that.
15 JUDGE SHAHABUDDEEN: Mr. Misetic, my mind
16 travels along similar lines to those of my colleague,
17 Judge Robinson. Is it your case, and it is your case
18 which I am trying to grasp, this: In a case involving
19 a multitude of evidential discrepancies, it is the
20 function of the Trial Chamber to resolve those
21 discrepancies and to announce its finding, its
22 conclusions of fact. Is it your case that when it does
23 so, it has to embark on an analysis of each discrepancy
24 so as to present a reasoned conclusion as to why it has
25 resolved a particular discrepancy in a particular way?
1 MR. MISETIC: I would amend that somewhat and
2 base my formulation on the European Court of Human
3 Rights, and say that it does not need to address every
4 inconsistency, but it certainly needs to address any
5 determinative -- a reasonable hypothesis or a
6 reasonable submission on a determinative issue.
7 So I cited the Hiro Balani case from the
8 European Court of Human Rights. If the discrepancy is
9 on a determinative issue, then yes, the Trial Chamber
10 has an obligation to explain why it accepted one
11 version of events over another. It does not need to
12 explain why it chose the 16th of May as the day of the
13 incident instead of the 17th of May, for example.
14 But on an issue of where the entire case
15 hinges on whether this man conducted an interrogation
16 of a woman while she is being raped, and we have a
17 Prosecution witness who comes in the Court and says:
18 "He was not in the room, he was not interrogating
19 anyone; it was Accused B who did all of this," then,
20 yes, we are entitled to at least an explanation.
21 Furthermore, I think as a matter of law there
22 is reasonable doubt. And it would take me another hour
23 to go through -- I won't --
24 JUDGE SHAHABUDDEEN: On that point, may I
25 suggest to you that we be all mindful of the clock at
1 this time.
2 MR. MISETIC: Absolutely. I will cut
3 short --
4 JUDGE SHAHABUDDEEN: The Court is agreeable
5 to giving you as much time as you need, provided you
6 conclude before the luncheon break. Is that all
8 MR. MISETIC: That's fine. Thank you, Your
10 Another issue that I wish to raise -- this is
11 two minutes -- is the judgement makes several findings
12 with respect to Witness D. And I wish the Appellate
13 Chamber to do a review of these findings.
14 In paragraph 267, in determining whether the
15 elements of torture have been met, the Trial Chamber
16 considers Witness D's suffering, et cetera, in
17 concluding that Mr. Furundzija's guilty of torture.
18 In paragraph 121, the Trial Chamber finds
19 that both Witness A and Witness D were subjected to
20 severe physical and mental suffering and also were
21 particularly humiliated.
22 Then finally, in paragraph 281, we have
23 evidence that the Trial Chamber found that Witness D
24 was tortured, and that is that in determining
25 aggravating factors, the Trial Chamber found that
1 Mr. Furundzija's function was to interrogate Witness A
2 in the large room, and in the pantry, where he also
3 interrogated Witness D, while both were being tortured
4 by Accused B.
5 So, clearly, in that sentence it appears that
6 the Trial Chamber found that Witness D was tortured,
7 and considered that evidence in sentencing.
8 And the problem, from the Defence's
9 perspective, is that we can find no support, and it --
10 I don't submit it's because there isn't any, but only
11 because we have made diligent efforts to find authority
12 for the proposition that when one soldier in an army
13 assaults another soldier in his own army, that he has
14 committed an international war crime. And indeed Rule
15 2 specifically says -- defines a victim as a person
16 against whom a crime over which the Tribunal has
17 jurisdiction has been committed.
18 In this case, Mr. Furundzija was convicted of
19 torturing a man, an active combatant in his own army.
20 And the issue that I put to the Appellate Chamber for
21 review is whether the Trial Chamber had jurisdiction to
22 consider that.
23 And the key issue, then, is whether the
24 physical assault of one soldier of another in his own
25 army is -- could be an international war crime.
1 And I would ask you to consider that Witness
2 D was considered in both the consideration of guilt and
3 in -- as an aggravating factor in sentencing. And so
4 if, indeed, the Trial Chamber did not have
5 jurisdiction, then that is yet another issue to
7 Briefly, on the European Convention. I
8 wanted to point out, again reiterate our position that
9 under the European Convention and the jurisprudence of
10 the European Court, the Trial Chamber was under an
11 obligation to address well-founded submissions on
12 determinative issues. And we believe that Witness D's
13 contrary testimony was indeed clearly a well-founded
14 submission on a determinative issue, and for that
15 reason they should have addressed the issue.
16 We also wish to point out to the Trial
17 Chamber that we are opposed, and consider it to be a
18 violation of Mr. Furundzija's rights, if the Appellate
19 Chamber were to now go back and try to determine what
20 the Trial Chamber's reasoning was, or how the Trial
21 Chamber resolved that conflicting testimony.
22 And the basis of that objection is that we
23 believe that is a violation of Article 21 (4)(b), in
24 terms of being able to have adequate time and
25 facilities for the preparation, in this case, of his
2 He's entitled to know now, so that he can
3 appeal how the Trial Chamber applied the standard of
4 beyond a reasonable doubt to the evidence between A and
6 If, for the first time, he finds out the
7 reason for why -- I hesitate to even say A's was
8 accepted, because that is just an assumption and not --
9 there are other hypotheses for why D's evidence wasn't
10 considered, but that A's testimony was selected as
11 truthful. If he finds that out for the first time in
12 the appellate judgement, then he has no place to appeal
13 that the standard of beyond a reasonable doubt, as
14 applied to the explanation in this case now by the
15 Appellate Chamber, that that standard was misapplied.
16 And so we argue that you must take the record
17 and the judgement for what it is, and that is that we
18 have an issue that was unaddressed, and if you find
19 that the testimony of Witness D was a well-founded
20 submission, and a fair and rational hypothesis could be
21 made from that testimony, that he in fact did not
22 interrogate anyone in the pantry, then you must reverse
23 the judgement. You must reverse the judgement.
24 The next issue is whether Anto Furundzija was
25 denied his right to attain the evidence and examination
1 of relevant witnesses on his behalf.
2 To understand what happened at trial would
3 take much more time than I have. After the trial went
4 to deliberation by the Trial Chamber in June of '98, we
5 received notice from the Office of the Prosecutor as to
6 certain documents that were not produced. We filed a
7 motion to strike Witness A's testimony in its entirety
8 for the failure to comply with Rule 68. The Trial
9 Chamber denied the motion to strike and reopened the
10 proceedings for the limited purpose of examining
11 medical, psychological -- for the limited purpose of
12 dealing only with medical, psychological, or
13 psychiatric treatment of Witness A.
14 The Defence proposed several witnesses --
15 first, the Defence disagreed with the proposition that
16 a Trial Chamber or -- the trier of fact, having retired
17 to deliberate on the evidence, can go back and reopen
18 the trial on the basis of a finding that the
19 Prosecution had committed misconduct. Nevertheless --
20 and we filed an appeal on that basis, and that was
22 The Defence then prepared for the reopening
23 and proposed two witnesses. One is the person whom we
24 have now labelled as Witness F, and the other was an
25 individual named Enes Surkovic.
1 Witness F, for background purposes, was a
2 Croat soldier in the HVO who, towards the end of
3 Witness A's ordeal, had taken -- he and his wife had
4 taken in Witness A sometime in August of '93, and had
5 hid her from Accused B and from others until she could
6 be exchanged and transferred over to her family in a
7 different part of Bosnia.
8 We had no reason to call this witness, other
9 than now at issue was going to be what was her
10 psychological, psychiatric, medical, mental, et cetera,
11 states, which was what the Trial Chamber had ordered
12 that it wanted to hear evidence on.
13 So we made a search for this person and found
14 him, and he provided evidence to us which we thought
15 was clearly relevant. For the reopening of the trial,
16 he discussed Witness A's medical, psychological and
17 psychiatric symptoms that he had encountered, including
18 that she was suicidal, that she was having medical
19 difficulties, et cetera, all things that I think most
20 people would find to be a logical consequence of the
21 events that had transpired. He was also the first
22 person who took her for medical treatment.
23 In addition to that, he offered exculpatory
24 evidence for Mr. Furundzija, and that is that he had
25 known Mr. Furundzija when both were members of the
1 Bosnian army, that is, the army of BiH in the Central
2 Bosnia region. He had found Mr. Furundzija -- well, in
3 any event, actually he had found him to be someone who
4 would not be participating in this. And he told us
5 that he specifically asked her about him because the
6 two of them were friends and that she told him that,
7 "Oh, when Furundzija was around, no one would touch
8 me." And I can't recall, off the top of my head, what
9 the other statement was, but it was exculpatory. So we
10 put his name down -- I'm sorry, we sought the Trial
11 Chamber's assistance in getting that testimony in, and
12 the Trial Chamber denied, as being irrelevant, that
14 We object here, on appeal, to the denial of
15 the right to call him. He is a fact witness as to her
16 medical -- he is the first fact witness, in that he had
17 firsthand knowledge while she was still technically in
18 HVO territory, and, second, he had exculpatory evidence
19 which was clearly relevant to his guilt or innocence
20 and to her credibility.
21 JUDGE ROBINSON: At what stage did you seek
22 to adduce this evidence?
23 MR. MISETIC: It was in July of --
24 JUDGE ROBINSON: No. In what stage of the
1 MR. MISETIC: Within two weeks of when the
2 Trial Chamber ordered the reopening of the case, so
3 relatively early. That was denied.
4 That later came to be relevant, because at
5 trial, the first witness we recalled was
6 Dr. Mujezinovic, and Dr. Mujezinovic's testimony was
7 relevant because he testified that in the fall of '93,
8 he had encountered her, that he found her to be in
9 serious difficulty in terms of psychological,
10 psychiatric, et cetera, that he had referred her for
11 medical help, that she couldn't string two sentences
12 together, et cetera.
13 The same day, Witness A took the stand and
14 completely denied just about everything that
15 Dr. Mujezinovic had testified to as to what her state
16 was and, indeed, indicated that she had, other than on
17 one occasion in August of '93, had not even received
18 any medical assistance since that time.
19 So Witness F's testimony was clearly
20 relevant, because it would have confirmed
21 Dr. Mujezinovic's version of the events that transpired
22 and what her mental, psychological and psychiatric
23 state was from August of '93 through the fall and
24 through what turned out to be 1995.
25 JUDGE SHAHABUDDEEN: Mr. Misetic, I have the
1 reopening order made by the Trial Chamber before me,
2 and am I right that it speaks not only of further
3 evidence relating to medical, psychological and
4 psychiatric matters generally but that it is confined
5 rather more narrowly to treatment or counselling? It
6 says: "Cross-examination to be strictly --" "Defence
7 may recall any Prosecution witness for
8 cross-examination strictly on any medical,
9 psychological, or psychiatric treatment or
10 counselling," and those words are repeated in items 2
11 and B1. Now, did this witness to whom you have
12 referred, did he participate in giving any treatment or
14 MR. MISETIC: Yes. He was the first person
15 who provided her with treatment. He physically
16 didn't. He took her to someone who did. And, second,
17 he had information about pills that she was taking, et
18 cetera. And then, third, with respect to the
19 treatment, ultimately his testimony is relevant because
20 in the judgement the Trial Chamber, in our view, makes
21 a rather stretched interpretation such that it
22 concludes that it was -- that Witness A could have gone
23 through treatment without knowing that she was going
24 through treatment.
25 And so in terms of that ultimate conclusion,
1 then, this testimony is relevant in the sense that it
2 assists the trier of fact in determining whether that
3 interpretation is possible, whether someone who was in
4 the state as described by Witness F, as described by
5 Dr. Mujezinovic, and as we think would have been
6 described by the next witness that I'm going to talk
7 about --
8 JUDGE SHAHABUDDEEN: Was the witness a
9 medically trained or qualified person?
10 MR. MISETIC: No.
11 JUDGE SHAHABUDDEEN: No.
12 MR. MISETIC: But the fact of the matter is
13 there aren't many medically trained people that we
14 could have found on that issue, particularly if you're
15 going to use a term like "qualified." We had to take
16 the evidence as it was, and this was an eyewitness.
17 The same argument, in essence, applies to the
18 next witness, and that is Enes Surkovic. He, by
19 Witness A's own admission, saw her in the late fall of
20 1993. He is also an eyewitness as to what had
21 transpired. We believe he is a hostile witness to the
22 Defence, and therefore we did not have an opportunity
23 to interview him, other than to get him to trial and to
24 have him testify by subpoena, if necessary, as to what
25 he knew and what he saw.
1 The other critical area which we didn't know
2 at the time, which turned out to be that way in the
3 judgement, is that the first witness statement that we
4 have from Witness A is, from our view, extremely
5 inconsistent throughout but especially with respect to
6 Mr. Furundzija, and in closing argument, we relied
7 heavily on the inconsistencies contained in that '93
8 statement from her trial testimony and used it to
9 impeach her. She denied at trial that she had ever
10 given a statement, (redacted)
13 The other ground of appeal is that then in
14 the judgement, without telling the Defence that they
15 were questioning the foundation of the document, and I
16 would add that this was a Prosecution document, i.e.,
17 there was no dispute between the Prosecution and the
18 Defence as to the authenticity of the document, the
19 Court sua sponte declared that it was unreliable, (A),
20 without telling the Defence that it wanted foundation,
21 and, (B), after having had the opportunity to call the
22 person who allegedly took the statement to verify its
23 authenticity. So we were left in a position again
24 of -- one of the principal arguments as to credibility
25 was that witness statement, which it is common practice
1 here at the Tribunal to use witness statements to
2 impeach the reliability and credibility of witnesses.
3 We relied on one such statement to cross-examine.
4 There appeared to be no foundational issues at trial,
5 since the Prosecution had moved it into evidence, and
6 we had no objection to its foundation or authenticity,
7 and then in the judgement to find that the Trial
8 Chamber deals with all these inconsistencies by saying
9 that, "Witness A says it's not hers and therefore we
10 dismiss the statement," having been given the
11 opportunity to subpoena Mr. Surkovic and to hear from
12 him whether he took that statement or not and whether
13 it was authentic. So we object on that basis as well.
14 You, as the Trial Chamber, have the authority
15 to determine whether the evidence that was used in
16 convicting Mr. Furundzija was reliable.
17 There is a substantive difference between
18 credibility and reliability. Credibility is, for the
19 most part, best determined by the trier of fact, in
20 that it's the trier of fact who sat in the trial, who
21 had the opportunity to observe the witness, who had the
22 opportunity to examine the witness, et cetera.
23 Reliability is something that an Appellate Chamber can
24 do just as effectively as the Trial Chamber, in that
25 it's an issue of applying the law to the facts, and
1 therefore you do not need to have sat in the courtroom
2 to know whether the testimony or whether the evidence
3 was reliable.
4 One of our major arguments at trial, Your
5 Honours, was that Witness A could not be deemed a
6 reliable witness; not a credible witness but a reliable
8 JUDGE SHAHABUDDEEN: As a result of your
9 submissions, there will be a need for a little
10 redaction. The registrar will show you.
11 MR. MISETIC: Mr. Dubuisson, I'm almost
12 positive that I'm right, but I will refrain until the
13 break so we can confirm that. Thank you.
14 One of the things that you will have to do is
15 review Witness A's testimony when you retire on this
16 judgement, and one of the things that we have to
17 emphasise is the lack of reliability here, and that is
18 based on several factors. I think this is a critical
19 point, given Judge Robinson's reference earlier to the
20 fact that a Trial Chamber does not have to -- I'm
21 sorry, that conflicting testimony is, per se,
22 reasonable doubt.
23 Here in this particular case, and this is --
24 after all, what we have to do here is apply the law to
25 the facts of the particular case, and that is that she
1 is not reliable as a matter of law where -- first and
2 foremost, what we talked about earlier, the conflicting
3 testimony between Witness D and Witness A about events
4 in the pantry.
5 Two, what I had talked about earlier, her
6 completely different version of events with respect to
7 her meeting with Dr. Mujezinovic in the fall of '93.
8 So now we have two witnesses in the trial with whom she
9 has diametrically opposed recollections of events.
10 Three is the conflicting witness statements
11 that I've already referred to here, and that formed
12 much of the closing argument on behalf of the
14 Four, as a matter of law, when the Trial
15 Chamber has to strike Witness A's testimony, because it
16 is inconsistent with the indictment, in order to
17 preserve the accused's right to a fair trial, and that
18 indictment is based on her own 1995 statement, we
19 contend, Your Honours, that as a matter of law, where
20 the Trial Chamber had to interject itself to protect
21 the defendant's right to a fair trial, that that is
22 substantive proof of the lack of reliability of the
24 Now, when you take this and go back to
25 Witness D's argument and what we had talked about
1 earlier with Judge Robinson, and we say that Witness D,
2 who was in no way impeached by the Defence or the
3 Prosecution, gives one version of events and Witness A
4 gives another, and it's already proven at trial that
5 her testimony had to be stricken by the Trial Chamber
6 because of its lack of -- because of its inconsistency
7 with her own statement and, thus, the indictment --
8 JUDGE SHAHABUDDEEN: Mr. Misetic, I think it
9 will help you --
10 THE INTERPRETER: Microphone, please.
11 JUDGE SHAHABUDDEEN: It will help you to make
12 an orderly conclusion of your interesting presentation
13 if you were to bear in mind that we are hoping to
14 terminate at ten minutes to the hour.
15 MR. MISETIC: I am right on time, Your
16 Honour. Thank you.
17 Finally, you should consider her
18 identification of Mr. Furundzija in that '95 statement
19 was substantively different than Mr. Furundzija's
20 actual description. One of the things that you should
21 consider is that in 1995, she described him as 172
22 centimetres, blonde hair, small features. Instead, he
23 is 183 centimetres, dark hair, with some prominent
25 JUDGE NIETO-NAVIA: Stand up, please.
1 MR. MISETIC: Stand up.
2 JUDGE NIETO-NAVIA: Thank you.
3 MR. MISETIC: Now, with respect to the law,
4 there was an inconsistency, and I referred to Tadic
5 here and its discussion of identifications. There was
6 no line-up or, to use the British phrase, no parade to
7 select Mr. Furundzija, and the only ID that she gave
8 was an ID in the dock. Tadic says that in-dock
9 identifications are not to be relied on, and I cite you
10 Judge May's own book on criminal procedure, which says
11 that in-dock identifications should at all costs be
12 avoided, if possible, because of their inherit
14 All of these factors you should consider in
15 determining whether or not Witness D's testimony should
16 have been accepted, at least to show that there is a
17 fair or rational inference that he didn't do it, and if
18 that fair or rational inference is to be dismissed, his
19 testimony is to be dismissed as no fair or rational
20 inference, then all of the factors that I've just shown
21 you must somehow resolve and explain why her testimony
22 is so much more convincing than D's that it merits the
23 finding that D's testimony does not even merit a fair
24 or rational inference of innocence.
25 Quickly, we raise several issues about
1 factual findings that were made with respect to
2 Ahmici. We strenuously object to those findings. It
3 is unfair that, for example, they make a finding that
4 he personally participated in expelling Muslims from
5 their homes. Well, Mr. Furundzija is not guilty of
6 that, and we had no clue that that was an issue in the
7 case, that we had to put on evidence that he didn't do
8 any such thing, et cetera. And so for that purpose, if
9 for no other reason, we wish to preserve our objection
10 to those types of findings throughout the record as
11 inappropriate and unnecessary to the facts and issues
12 that were involved in this case.
13 Because I'm running short on time, I would
14 propose if the Court has questions on the motion to
15 disqualify, I would address them. If not, I would move
16 on to sentencing.
17 JUDGE SHAHABUDDEEN: No questions.
18 MR. MISETIC: Thank you, Your Honour.
19 Mr. Furundzija, as you know, was sentenced to
20 ten years' imprisonment on the basis of the torture
21 count and eight years' imprisonment on the basis of the
22 aiding and abetting of rape, and it is our position,
23 Your Honours, that this sentence, in light of all the
24 evidence at trial, is much too harsh, is inconsistent
25 with the evidence, and is inconsistent with some of the
1 jurisprudence of the International Tribunal.
2 Now, for purposes of sentencing, as much as I
3 hate to do it, I must presume that you will affirm all
4 of the factual and legal findings of the Trial Chamber
5 in convicting Mr. Furundzija, and so I trust you will
6 understand that if I make any implicit assumption of
7 guilt, it is not because I believe it to be so; it is
8 because I must on this argument.
9 JUDGE SHAHABUDDEEN: We're all legally
10 qualified people, Mr. Misetic.
11 MR. MISETIC: Thank you.
12 One element to be considered in sentencing is
13 the weight of the evidence in the case. This sentence
14 clearly was a strong sentence, in the Defence's
15 position, a harsh sentence, and particularly when one
16 considers all of the issues that I have raised here,
17 even if ultimately you somehow could come to the
18 conclusion of guilt, where you had the testimony of
19 Witness D, where you had the issue of changing
20 testimony and changing charges, et cetera, in the
21 indictment, that is one element that should be
22 considered at the time of sentencing.
23 I would submit that it is substantively
24 different where you have, for example, 50 witnesses who
25 will come and say somebody did X, Y and Z and committed
1 this crime, and then you sentence him to the maximum
2 penalty because you have zero doubt as to his guilt,
3 and a situation where you have convicted someone, but
4 there are substantive issues that hang over the case
5 and that might suggest an innocent possibility, and
6 that in sentencing, that is something that should be
7 taken into consideration.
8 The second principle that we rely on is the
9 sentencing policy that was followed in the Tadic Trial
10 Chamber the first time around and with respect to
11 sentences imposed for -- and these are the words of the
12 Trial Chamber: "Tadic's acts were incontestably
13 heinous, but his level --" I'm sorry, that was from a
14 different -- that's my next argument. "That he had
15 participated in the beating of a man, involving the use
16 of whips, iron bars, and instruments to inflict great
17 suffering on the victims, as well as terrorising them
18 and near suffocation through a noose." So we have
19 particularly cruel conduct, a cruel form of torture,
20 and the Trial Chamber sentenced Tadic to six years for
21 a violation of the laws and customs of war.
22 Now, there is certainly a discretion and a
23 range that is afforded to the trier of fact, but I
24 would submit that the four-year range here is entirely
25 too much, given that what was given to Tadic was six
1 years' imprisonment.
2 I would also ask the Trial Chamber to
3 consider the recent Tadic Appeals Chamber decisions
4 with respect to sentencing. It is clear that there are
5 issues of great dispute with respect to crimes against
6 humanity versus, quote/unquote, "ordinary war crimes."
7 Some of the distinguished members of the panel have
8 been participants in the resolution of those issues, be
9 it the Erdemovic case or in the Tadic case, and I leave
10 it again for you to decide.
11 We obviously relied on some of those earlier
12 opinions in our appellate brief, but one particular
13 portion of the Appeals Chamber decision in Tadic, which
14 I would ask you to consider here, is that the Appeals
15 Chamber ruled that the Trial Chamber must consider the
16 need for sentences to reflect the relative significance
17 of the accused in the context of the former
19 This is a quote, "Tadic's acts were
20 incontestably heinous, but his level in the command
21 structure was relatively low."
22 I would ask you to consider that in terms of
23 your review of this sentence. The accused has never
24 been alleged to be a high-ranking official of any kind
25 and the acts in question are not consistent and
1 systematic, but transpired all within approximately an
2 hour or two on one afternoon in 1993.
3 And so for those reasons, when you compare
4 Mr. Furundzija's ten-year sentence versus Tadic's six,
5 or some of the other sentences that have been handed
6 out, including, I would argue, Mr. Erdemovic's initial
7 ten for the mass participation in the execution of 72
8 individuals, when there were no mitigating
9 circumstances found at the time of the commission of
10 the offences, I would argue that this sentence is
11 inconsistent with some of these principles and for that
12 reason that the sentence must be reduced.
13 In conclusion, Your Honours, I will try to
14 wrap up quickly and say that in my argument I have
15 hoped to demonstrate to you several key, critical
16 issues that ultimately result in Mr. Furundzija not
17 receiving a fair trial. And as I indicated to you
18 earlier, it is you who are charged with defending those
19 principles and those international covenants and
20 defending the right to a fair trial.
21 And where Mr. Furundzija relied on the
22 indictment, where he made his objections on the record
23 at trial, and made his motion to strike, and that
24 motion was granted, and then he was ultimately misled
25 as to even that order, he cannot be deemed to have
1 received a fair trial.
2 To take it just outside of the legal context
3 and just ask ourselves: Is this fair, just as an
4 impartial observer and a person who is not a Judge or
5 not a lawyer, is this fair? And is it fair that when a
6 Prosecution witness comes in and testifies on behalf of
7 the Prosecution that Mr. Furundzija was not present,
8 interrogating anyone in the pantry, is it fair that
9 that evidence should be apparently summarily dismissed
10 without explanation. Is that fair?
11 And if it isn't fair, and I don't believe it
12 is, then you must act pursuant to your mandate from the
13 Security Council and intervene to protect his right to
14 a fair trial. And I thank you.
15 JUDGE SHAHABUDDEEN: Mr. Misetic, we have a
16 minute and a half to go. Perhaps we are not in danger
17 of transgressing the temporal limits which I have set
18 if I ask you a question about ground 4, the
19 disqualification point. I did say I didn't have any
20 questions. May I ask you one question?
21 MR. MISETIC: Yes.
22 JUDGE SHAHABUDDEEN: In the Court below, did
23 the Defence open any issue as to whether rape was or
24 was not a war crime?
25 MR. MISETIC: We did not.
1 JUDGE SHAHABUDDEEN: Thank you. Then,
2 Mr. Misetic, we are indebted to you for your kind
3 assistance this morning. We will now take the
4 adjournment until 2.15, when we will hear counsel for
5 the Prosecution.
6 --- Luncheon recess taken at 12.50 p.m.
1 --- On resuming at 2.18 p.m.
2 JUDGE SHAHABUDDEEN: The proceedings resumed.
3 Ready for the Prosecution, Mr. Yapa?
4 MR. YAPA: I thank Your Honours.
5 JUDGE SHAHABUDDEEN: Before you begin, the
6 Bench is concerned to make sure that the parties
7 understand that we are disposed to be as equitable as
8 possible so far as the allocation of times is
9 concerned, but we understand that you are disposed to
10 finish by a quarter to 4.00. Is that right?
11 MR. YAPA: That is correct, Your Honour.
12 JUDGE SHAHABUDDEEN: Excellent. Then please
14 MR. YAPA: Your Honour, my purpose in
15 standing up before Your Honours now at this stage is to
16 make a few introductory remarks on the submissions made
17 by my learned friend.
18 My learned friend devoted much of his time,
19 or the time available to him, I should say the major
20 portion, to deal with two issues, the first being the
21 question of the fair trial, and the second on the
22 contradictory nature of the evidence. We are in a
23 position to respond to the submissions made. He
24 restricted himself to those two grounds and made
25 certain submissions on the question of sentence.
1 And also, in the course of his submissions,
2 he made reference to the standard of review that will
3 be applied by Your Honours' Court. With respect, we do
4 not agree with -- I do not agree with my learned friend
5 on the standard of review that he promulgated, which
6 would be applied by Your Honours' Court. We have, in
7 our response submitted, as far as possible, responses,
8 replies to the brief that my learned friend submitted.
9 On the first ground of the fairness of the
10 trial, or the fairness to the accused, Mr. Norman
11 Farrell will make his submissions, and on the question
12 of sentence, it will be Mr. Chris Staker who will make
13 the submissions.
14 On the other grounds that have been placed by
15 my learned friend, if Your Honours have any questions,
16 we'll be happy to answer.
17 I thank Your Honours. Mr. Norman Farrell.
18 MR. FARRELL: Good afternoon, Your Honours.
19 The appellant raises grounds of appeal, as you are
20 aware. To a certain extent they are overlapping. They
21 deal with a number of issues. Over and over again, in
22 relation to a number of the different grounds, our
23 submissions are fully set out in our 100-page brief.
24 And what I will be submitting to is the Prosecution's
25 position in relation to the position taken today. I
1 won't be addressing the issues in the brief; at least
2 I'll try not to.
3 In my introduction there is two points that
4 the Prosecution would like to make, or two examples I
5 would like to refer you to, just to clarify the
6 position of the Prosecution. In the appellant's brief,
7 both in his appeal brief and in his reply brief, and
8 specifically in his reply brief, he characterises the
9 Prosecution's position on a number of occasions, and he
10 restates the Prosecution's position in a number of
12 I would like to refer to two places where, in
13 the Prosecution's respectful submission, it's clear
14 that he has characterised the Prosecution's submissions
15 incorrectly, or the position of the Prosecution. And,
16 as a result, the Prosecution does not accept the
17 characterisation of its position in the reply brief by
18 the appellant.
19 The first is in relation to -- and I will try
20 to make clear these are not my submissions on these
21 points; these are just to try and clarify what the
22 Prosecution's position is. And it's not as stated in
23 my friend's brief.
24 The first relates to the interrogation by the
25 appellant in the pantry. And as you are fully aware,
1 the issue in that case is whether there is a
2 contradiction between Witness A's testimony that said
3 the appellant interrogated while in the pantry, and
4 Witness D's testimony, which says that the appellant --
5 his allegation is that the appellant did not
6 interrogate while in the pantry.
7 In his brief on page 35, he refers to the
8 Prosecution's position and says: "The Trial Court's
9 finding that Mr. Furundzija questioned Witness D in the
10 pantry is the linchpin to his conviction. Given the
11 agreement between the parties at the appellate level
12 that, at a minimum, the evidence on this issue is not
13 dispositive, the Appeals Chamber must reverse the Trial
15 With respect, and this may have been just a
16 misunderstanding from our brief, but let me make it
17 absolutely clear. The Prosecution's position is not
18 that the evidence on this issue is not dispositive. He
19 takes the position that the evidence on this issue, the
20 evidence of Witness A and Witness D, is not
21 determinative of the issue of whether there was an
23 He then derives from that, that the Trial
24 Chamber should have had a reasonable doubt. In other
25 words, the evidence isn't determinative, it isn't
1 conclusive, it isn't clear, about the interrogation in
2 the pantry.
3 He then states that as there's an agreement
4 between the parties at the appellate level that the
5 evidence on this issue, the issue being the
6 interrogation in the pantry, is not dispositive, the
7 Appeals Chamber must reverse. With respect, that's not
8 the position taken in the Prosecution's brief, and
9 you'll see in the brief, at paragraphs 3,67 to 3,73,
10 that what the Prosecution brief says is that Witness
11 D's testimony is not dispositive of the issue of
12 whether the appellant actually interrogated in the
13 pantry. There's other evidence. There's Witness A's
14 testimony that the appellant interrogated in the
15 pantry, and it will be the Prosecution's submission
16 that Witness D, in fact, contrary to my friend's
17 submission, doesn't actually address the issue of
18 whether the appellant asked questions in the pantry.
19 That's not what he testified to.
20 So, with respect, the reference in page 35 is
21 contrary to the position taken, and we don't accept
22 it. That may have just been a misreading in light of
23 his reading, and I'm not alleging any bad faith.
24 The second example I want to refer to which
25 is crucial in our submission is the reply brief at page
2 In the reply brief of the appellant at page
3 14, it states: "The Prosecution also offers no
4 response to the Defence's argument that the Trial
5 Chamber apparently convicted Mr. Furundzija of war
6 crimes committed against Witness D, an HVO soldier in
7 his own army. The Defence's arguments on this point
8 are thus unrefuted and should be deemed conceded."
9 This is under the heading "Concessions and Admissions
10 by the Prosecution".
11 I would also note it's under a subheading
12 which says: "Reliance on acts committed against
13 Witness D in convicting Mr. Furundzija." The first
14 thing I note is this is a new heading. This heading is
15 not in his appellate brief. The first part of the
16 heading is, but the second part of the heading, which I
17 just read, is not in his appellant brief and is now
18 recharacterised as if it was raised in his appellant's
20 Secondly, the statement says: "The
21 Prosecution offers no response to the Defence's
22 argument that Mr. Furundzija was convicted in relation
23 to Witness D." There is no argument in the appellant's
24 brief on this issue. Let me draw you to the only
25 reference in the appellant's brief that is made on
2 In part 5 of the appellant's brief, under his
3 statement of facts, that is, not under his argument,
4 under the statement of facts of the appellant's brief,
5 starting at page 44 under his brief dealing with
6 judgement and sentence, the appellant quotes the
7 judgement of the Trial Chamber. It's a flat quote that
8 goes for a page and a half. At the end of page 45,
9 there's a footnote which is at the end of the judgement
10 and sentence that is quoted.
11 Now, one would assume that that footnote
12 actually should be in reference to the actual
13 quotation, because this is a quotation that he's put
14 in. But if you look at the end, under footnote 3, the
15 appellant says: "Although the judgement is unclear on
16 this point, the Trial Chamber appears to have found
17 Mr. Furundzija guilty of torturing Witness D and to
18 have taken the torture of Witness D into account in
19 sentencing." Then he says: "The Trial Chamber never
20 sets forth any legal basis for convicting
21 Mr. Furundzija of a war crime against an active
22 combatant in his own army."
23 I may be wrong, and I would ask the
24 appellant's counsel to correct me in reply if I am, but
25 this is the only reference that the Prosecution was
1 able to find with respect to this ground of appeal. It
2 is not, with respect, a ground of appeal. There's no
3 allegation of an error, and there's no argument by the
4 Defence on this issue.
5 If you read the footnote, it says: "The
6 judgement is unclear on this point." It appears to me
7 that the appellant is aware of this issue. He decides,
8 in his interpretation, that it's unclear. He does not
9 raise it as an error of law. He does not set it out as
10 a ground of appeal, as required under Rule 111. And he
11 does not seek leave to amend his notice or his appeal
12 brief to raise this as an issue. In respect, it's the
13 contrary. He's addressed his mind to it and he's
14 decided not to raise it, and he puts it in a footnote.
15 In my submission, this issue, if it is an
16 issue, has been waived. It was not raised at the trial
17 level, it was not objected to at the trial level, and
18 it is included in a footnote on page 45 of the brief,
19 and then, in reply, asserts that there's an argument
20 which the Prosecution didn't respond to, and therefore
21 the Prosecution should concede. With respect, I'm not
22 sure what type of practice -- tactic this is, but I
23 would submit that in this Tribunal, that does not
24 comply with the Rules. I stand to be corrected on
25 that. Maybe it is raised somewhere else, but in my
1 respectful submission, it's not.
2 As a result of those two examples which I've
3 just presented to you, the Prosecution's position is
4 clear that we do not accept the allegations or, sorry,
5 the recharacterisation and the statement of the
6 Prosecution's position in the reply brief. That was
7 the essence of that point.
8 I would now like to go on to the substantive
9 issues on the appeal, if I may.
10 THE INTERPRETER: And could the counsel slow
11 down, please.
12 MR. FARRELL: The next issue I would like to
13 raise and make submissions on is the standard of review
14 on appeal.
15 THE INTERPRETER: Could the counsel please
16 slow down for the interpreters. Thank you.
17 MR. FARRELL: The appellant, in his second
18 and third grounds of appeal, makes essentially
19 allegations or submissions regarding insufficiency of
20 evidence. Specifically, that's the title of the
21 grounds of appeal. He makes certain submissions on the
22 standard that's to be applied by the Appellate Chamber
23 with respect to an assessment of the facts by an Appeal
24 Chamber of a Trial Chamber's ruling.
25 It's the position of the Prosecution that the
1 standard proposed by the appellant is wrong and it's
2 inconsistent with the decision in Tadic.
3 The majority decision in Tadic finds that the
4 findings of fact of a Trial Chamber are to be given
5 great deference and they are to stand, unless no
6 reasonable person could have reached that conclusion on
7 the evidence, and it's only where the evidence, where
8 relied upon, could not reasonably have been accepted by
9 a reasonable person that the Appeals Chamber can
10 intervene. In fact, the Appeals Chamber in Tadic finds
11 that two Judges, both acting reasonably, could come to
12 different conclusions on the evidence.
13 His Honour Judge Shahabuddeen, in a separate
14 opinion, comes to similar conclusions on that issue,
15 stating that different minds, equally competent, may,
16 and often do, arrive at different and equally
17 reasonable results, and Judge Shahabuddeen states that
18 the Appeals Chamber will intervene where it can see
19 that no reasonable person would have taken the view
20 taken by the Trial Chamber.
21 Now, if I can juxtapose the actual language
22 in Tadic to the Defence position, in its brief and as
23 asserted this morning, the Defence states that where a
24 reasonable trier of fact could reasonably conclude, on
25 the basis of all the evidence, that the appellant is
1 not guilty, the Appeals Chamber must intervene. With
2 respect, that's incorrect. You don't sit as an Appeals
3 Chamber to determine whether a reasonable trier of fact
4 might have had a reasonable doubt at trial. That's the
5 standard for the Trial Chamber. As noted in the Tadic
6 decision, the function of the Appellate Chamber is not
7 to retry the issue and determine whether or not a
8 reasonable person would have had a reasonable doubt.
9 JUDGE SHAHABUDDEEN: You're drawing a
10 distinction, do I understand you, between the standard
11 applicable to the Court below and the standard
12 applicable to the Appeal Court; is that right?
13 MR. FARRELL: Yes, Your Honour.
14 JUDGE SHAHABUDDEEN: You're saying that the
15 Court below has to determine whether there is proof
16 beyond a reasonable doubt, but if there is material
17 which could go either way, the Appeals Chamber will not
18 interfere unless it takes the view that no reasonable
19 person could have come to that conclusion; is that the
21 MR. FARRELL: That's correct, Your Honour.
22 JUDGE SHAHABUDDEEN: Yes.
23 MR. FARRELL: Thank you.
24 As I think it's clear what the position is, I
25 won't go over any more of the points I make but just
1 reiterate that when the Defence attempts to argue that
2 when a reasonable person could arrive at a different
3 conclusion and therefore this raises a reasonable
4 doubt, this would, in fact, be contrary to the
5 determination in Tadic that two reasonable persons
6 could reasonably arrive at different conclusions. And,
7 in fact, on the standard even applied at the trial
8 level, if there was a two-to-one decision, a majority
9 of two convicting and one finding reasonable doubt, on
10 his standard if a reasonable person could have found a
11 reasonable doubt, and assuming, of course, that a
12 minority Judge who dissents and would acquit is a
13 reasonable person, the two-to-one decision wouldn't
14 hold, and since a reasonable person could have, he
15 should have been acquitted, regardless of the majority
16 decision at trial. So, with respect, it doesn't hold
18 The second point regarding the standard
19 relied on is that in his reply brief at page 8, the
20 appellant also mixes up the onus. Not only does he mix
21 up the standard but he mixes up the onus on appeal.
22 On page 8 of his reply brief, the appellant
23 says: "The burden is on the Prosecution to prove that
24 there is no fair or rational basis for concluding that
25 the appellant is not guilty of the crimes charged."
1 He is indicating that the burden is on the
2 Prosecution to prove that no fair rational basis. He
3 reverses the onus and he applies a reasonable doubt
4 standard, both incorrect.
5 What the appellant has done is he's referred
6 to a passage which is in the Tadic appeal brief. And
7 in that passage -- I think it's paragraph 64 or 164. I
8 can get it if it's necessary. In that passage in the
9 Tadic appeal brief, it's the Prosecution appealing
10 against the findings of the Trial Chamber resulting in
12 The Prosecution takes the position that the
13 Trial Chamber erred and should have convicted the
14 accused in that circumstance. And the standard the
15 Prosecution submits is that the Prosecution, as the
16 appellant, must demonstrate that no reasonable trier of
17 fact could have acquitted. In other words, the onus is
18 on the Prosecution in that case to show that the only
19 reasonable conclusion on the evidence would have been
20 to convict.
21 The appellant takes that standard, which is
22 the standard of an appellant on appeal, and even though
23 he is the appellant in this case, says, "Well, the onus
24 is on the Prosecution to prove the same standard."
25 With respect, the determination or submission
1 as to the onus submitted by my colleague for the
2 appellant is incorrect as well. That standard in Tadic
3 was the standard applied by the appellant in that case,
4 and that's the same standard that he must apply as the
5 appellant in this case.
6 That's just a short introduction on the
7 standard. If I can move now to the substantive
9 I would now like to deal with the ground of
10 the sufficiency of the evidence as alleged by the
12 I note that the appellant spent an
13 extraordinary amount of time explaining to the Appeals
14 Chamber his submissions at trial, which resulted in him
15 getting a remedy which he had requested. The only
16 relevance that the Prosecution conceived is that there
17 might be have been some prejudice, once he got the
18 remedy, because the Trial Chamber relied on the
19 evidence which was supposed to have been excluded or
20 not relied on. I think that's his submission.
21 With respect, the complaint was that there
22 was a problem with the indictment and therefore he was
23 granted a remedy. I can't imagine that he's
24 complaining at this point in time that the remedy he
25 granted was in error. It was the remedy he asked for.
1 Secondly, with respect, it's not a
2 sufficiency of the indictment issue. The indictment is
3 valid. It's clear what the scope of the indictment
4 is. The question before you is whether the Trial
5 Chamber erred in granting the variation -- or
6 responding to the variance at trial.
7 What appears to have happened, quite simply,
8 is that there was certain evidence which was in
9 pre-disclosure documents which related to some conduct
10 which the Defence alleges was not within the scope of
11 paragraph 25 and 26. The Defence alleges that he
12 relied on this sequence of events, which he alleges in
13 the pre-disclosure documents demonstrate that the
14 appellant was not present at the beginning of the
15 interrogation of Witness A and arrived after the fact.
16 And that's what paragraph 24 and 25 relate to.
17 His reliance on -- extensively on counts 9 to
18 11, in my respectful submission, are somewhat
19 irrelevant. Counts 9, 10, 11 were not before the Trial
20 Chamber. Counts 9, 10, 11 -- he was not charged with
21 counts 9, 10, 11, he was not arraigned at his initial
22 appearance in relation to counts 9, 10, 11, and the
23 fact that he had the indictment was simply because that
24 was the indictment for a broader group of accused in
25 which his charges were taken out. That's evident from
1 the amended indictment, which was filed on June 2nd,
2 1998, upon which this trial proceeded.
3 The trial did not proceed on the basis that
4 the appellant is submitting to you. It did not proceed
5 on the evidence that he submits was clearly before the
6 Trial Chamber and was the basis of the charges.
7 JUDGE SHAHABUDDEEN: You say that the
8 allegations in the original indictment relating to
9 counts 9, 10 and 11 did not form part of the amended
10 indictment on the basis of which a trial in fact
11 proceeded. Is that your position?
12 MR. FARRELL: That's correct.
13 JUDGE SHAHABUDDEEN: Okay.
14 MR. FARRELL: The appellant's reliance on
15 counts 9, 10 and 11 to formulate the strategy upon
16 which he intended to proceed, that was his choice.
17 And, of course, he can rely on the Pre-Trial brief to
18 formulate the strategy upon which he intends to
19 proceed. That's fine.
20 The scope of the indictment is with respect
21 to particular acts that took place during the time that
22 Mr. Furundzija was there conducting an interrogation
23 against Witness A in conjunction with accused B.
24 That's the scope of paragraph 25 and 26. 26 of course
25 -- not broadens it, is a continuation into the pantry.
1 But that's the scope of paragraph 25 and the
2 commencement of the charges against the appellant.
3 If the appellant alleges that he relied on
4 Pre-Trial disclosure documents to formulate his
5 Defence, which is not even part of paragraphs 25 and
6 26, this sequence that he is relying on. Paragraph 25,
7 26 do not set out any sequence. They set out conduct
8 that the appellant --
9 THE INTERPRETER: Could the counsel slow
10 down, please.
11 JUDGE SHAHABUDDEEN: The interpreters are
12 appealing to you again. Could you restrain your
13 natural tendency to speed up.
14 MR. FARRELL: I'll do my best. My apologies
15 to the interpreters.
16 The -- I'm sorry. My point was that if the
17 appellant was in any way prejudiced because he relied
18 on the Pre-Trial brief, or Pre-Trial disclosure
19 documents to formulate his Defence, once it proceeded
20 at trial, he had the right to seek an adjournment.
21 That's the first issue for the preparation of his
23 As I think Judge Robinson pointed out, the
24 appellant did not seek an adjournment, and as I'm sure
25 you are aware from the transcripts, the Presiding
1 Judge, Judge Mumba, asked him whether he wanted an
2 adjournment, and he declined an adjournment.
3 So the next issue then is whether or not the
4 evidence that was brought forward at trial, the
5 evidence of the criminal conduct of the appellant, was
6 at variance with the indictment. In other words, the
7 complaint by the appellant is that the evidence at
8 trial came out from the testimony of Witness A, with
9 respect to criminal conduct by accused B in the
10 presence of the appellant for which he was not
11 charged. That was the complaint made at trial.
12 Now, the Trial Chamber could have responded
13 in three ways. The Trial Chamber could have said,
14 first of all, the conduct is in relation to the
15 transaction for which you have been charged, which is
16 the interrogation, a count of torture, and a count of
17 outrages upon personal dignity including rape, and the
18 means by which you carried this out was an
19 interrogation. And we know from the standard or the
20 legal definition of interrogation - of torture that it's
21 the questioning, i.e. the interrogation, and the use of
22 physical abuse to try and obtain an answer or achieve
23 some result.
24 They didn't do that. The Trial Chamber did
25 not say: It's part of the same transaction, you were
1 given full notification that the charges were
2 interrogation, a torture, and the means was
3 interrogation. They didn't do that.
4 The second thing the Trial Chamber could have
5 done is they could have asked the Prosecution whether
6 they wanted to amend the indictment to conform to the
7 evidence. That was completely valid, could have been
8 done, and then the appellant would have been allowed to
9 seek an adjournment to properly prepare his Defence.
10 The Trial Chamber didn't do that. The action
11 taken by the Trial Chamber was the most beneficial to
12 the accused at the time because it excluded a basis of
13 liability and evidence of criminal conduct which, on
14 the testimony of Witness A, was clear, that the
15 appellant was in fact present during the criminal
16 conduct, and was part of the criminal conduct by either
17 aiding and assisting B or being part of the
19 The Trial Chamber limited the liability and
20 specifically excluded this as a basis for which he
21 could be found guilty under 25 and 26.
22 The appellant therefore, in our submission,
23 gets the benefit. The evidence is excluded, but he
24 gets it in, as he wanted, and as he acknowledged this
25 morning he wanted, because he specifically wanted to
1 cross-examine on it, because it goes to the
2 credibility of Witness
3 A. It was permitted, it was in, he did rely on it,
4 because he relied on that portion, which was admitted,
5 not relied on by the Trial Chamber. The Trial Chamber
6 did not rely on this evidence for the conviction. But
7 it was permitted to go in as part of the background and
8 relied on by the defendant in cross-examining the
9 Witness A.
10 In fact, he refers to a number of statements
11 where she says different things to show that she's
12 confused in the sequencing, and that goes to her
14 What the result is, is that the only
15 prejudice that can be alleged and is the only prejudice
16 alleged by the appellant, is whether or not there was
17 evidence which was supposed to be excluded for the
18 purpose of conviction, whether that evidence was relied
19 upon by the Trial Chamber for the conviction. And I
20 think that's the point that Judge Robinson made towards
21 the end, that it's not an issue of the sufficiency of
22 the indictment, it's whether or not, because of the
23 variation, the evidence that was entered resulted in
24 his conviction.
25 Let me deal with the alleged prejudice that
1 the appellant has noted. The appellant initially
2 indicated that there were rapes and sexual assault by
3 the accused B, which took place in the large room. His
4 submission, if I understand it, was that the rapes --
5 the rape only -- the rape only identified in the
6 indictment was that in the second room, the pantry,
7 with the continuation of the interrogation.
8 He claims that this evidence came out and
9 that the Trial Chamber referred to or somehow relied on
10 the rapes and sexual assault by accused B. My
11 understanding, if I am not incorrect, is that when Your
12 Honour Judge Shahabuddeen put it to him, "Are you
13 saying that the Trial Chamber relied on the rapes and
14 sexual assault by accused B to convict your client?" He
15 qualified his answer by saying, "No." What he relied
16 on was that it was used in some manner for the
17 concerted action, but I'll get back to that.
18 With respect to the rapes and sexual assault
19 by Accused B in the large room, when the appellant was
20 present. If necessary, I would ask you to look at
21 paragraph 124 of the factual findings. There is no
22 reference whatsoever to this evidentiary matter, and
23 paragraph 264 of the legal findings, as there is no
24 reference whatsoever to the rapes or sexual assault in
25 the large room, in the presence of the appellant.
1 There is no reliance on the Trial Chamber on this at
2 all. The Trial Chamber does not rely on this alleged
3 prejudice by the -- the prejudice alleged by the
5 The second alleged prejudice is that the
6 Trial Chamber somehow relied on the testimony as a
7 whole, the testimony as a whole that was supposed to be
8 excluded, to find that since he was present from the
9 beginning of the conduct of Accused B, this was
10 evidence of concerted action. And the allegation, if I
11 understand it correctly by the appellant, is that the
12 findings of the Trial Chamber were that he was there
13 throughout the whole time, he was present throughout
14 all these acts that Accused B engaged in, which were
15 supposed to be excluded by the Trial Chamber, and that
16 is a demonstration or some evidence of concerted
18 That was the allegation that was made, as the
19 second form of prejudice.
20 Once again, if you look at paragraph 124 of
21 the judgement, the factual findings. The factual
22 findings in paragraph 124 are almost duplicative of the
23 indictment, which is paragraph 25 of the indictment.
24 There is no reference in paragraph 124 to a concerted
25 action ongoing from the time of the arrival of the
1 accused, in light of all the conduct taking place and
2 in light of all the action of Accused B.
3 The wording in 124 relates to the cruel,
4 inhumane and degrading treatment and threats, which is
5 the substance of paragraph 25 of the indictment, in the
6 course of her interrogation by the accused -- the
7 purpose was to extract information -- and that the
8 interrogation and the abuse by Accused B were parallel
9 to each other.
10 At no point in time is there any factual
11 findings regarding concerted action from the beginning
12 in relation to evidence which was allegedly or
13 supposedly excluded.
14 The legal findings on paragraph 264. If you
15 look at the legal findings on paragraph 264, the facts
16 relied on in the legal findings are very narrowly
17 circumscribed. They relate to the interrogation, the
18 rubbing of the knife over the inner thighs, the threat
19 to cut out Witness A's private parts, and the threat to
20 confront Witness A with Witness D. This is the
21 substance of the charges for which he was indicted and
22 for which he was tried.
23 With respect, there are no legal findings
24 that there was concerted action dependent on facts
25 which were supposedly not to be relied on by the Trial
2 The third claim of prejudice by the appellant
3 is that --
4 JUDGE SHAHABUDDEEN: You say, Mr. Farrell,
5 that the judgement does not present any conclusion
6 based upon the accused having being present from the
8 MR. FARRELL: Having been present from the
9 beginning, in concert with the Accused B through the
10 rapes and sexual assaults committed by Accused B.
11 JUDGE SHAHABUDDEEN: I see.
12 MR. FARRELL: That is the exclusion. That if
13 you look at the motion on June 11, what the Defence
14 counsel asked for in the motion, the words they used
15 are, "sexual assaults and rapes by Accused B in the
16 large room." And that's the substance upon which the
17 motion is granted. That's what they determined to be
18 excluded. They don't determine to be excluded anything
19 related to the conduct alleged in paragraph 25 and 26.
20 They say only evidence which is not related to.
21 So, with respect, the Trial Chamber, in its
22 judgement on paragraph 80 -- in paragraph 80, I'm sorry
23 -- in paragraph 80 specifically refers to the fact
24 that it will not look at evidence which has been
25 excluded. I'm sorry. It's paragraph 81.
1 The witness has testified, I am reading from
2 paragraph 81, Your Honours: "The witness has testified
3 that rapes and sexual abuse ..."
4 JUDGE SHAHABUDDEEN: The last sentence?
5 MR. FARRELL: Yes. I'm sorry. I was just
6 going to refer to the first part, where it identifies
7 the part that is to be excluded, rapes and sexual
8 assault by B, which is exactly what was in the motion
9 of June 11th, and which is what the Trial Chamber did
10 not do.
11 And then, as you've indicated, Judge
12 Shahabuddeen, the last sentence is: "The Trial Chamber
13 will not consider evidence relating to rapes and sexual
14 assault of Witness A in the presence of the accused
15 other than those alleged in paragraph 25 and 26."
16 In light of a very clear ruling by the Trial
17 Chamber in its judgement, that this is the part which
18 is not to be excluded, and not to be considered, which
19 is consistent with its order, in my respectful
20 submission, you can't read into the factual findings at
21 paragraph 164 or the -- sorry, 124, or the -- you can't
22 read into the legal findings either at paragraph 264,
23 the evidence which the appellant now alleges he's been
24 prejudiced by. It's not there. It's not referred to.
25 And we have a specific paragraph which says to the
2 The last claim of prejudice alleged in this
3 morning's submission was that the appellant was
4 convicted for the act of Accused B in that he held a
5 knife to the throat of Witness A. If I recall, that
6 was one of the comments he made.
7 The Defence claimed that the specific
8 allegation of holding a knife to her throat was found
9 in paragraph 24 of the indictment, the previous counts
10 for counts 9 to 11, and was not found in the counts for
11 which the appellant was charged and convicted.
12 If you refer to paragraph 24 of the
13 indictment, which once again, in my respectful
14 submission, is not even before you, but accepting that
15 it's been referred to by the appellant, if you refer to
16 paragraph 24 in the indictment, though there is
17 evidence that he used a knife, there is no specific
18 allegation in paragraph 24 that Accused B held a knife
19 to the throat of Witness A. That's not true.
20 There are general allegations of his conduct
21 and general allegations that he used a knife, but not
22 the one that the appellant alleges was clearly in 24
23 and somehow was imported into paragraph 25.
24 JUDGE ROBINSON: Mr. Farrell.
25 MR. FARRELL: Yes, Your Honour.
1 JUDGE ROBINSON: I understand what you are
2 saying. The Trial Chamber did in fact make findings of
3 fact about the happenings in the large room, didn't
5 MR. FARRELL: Well, maybe it's the choice of
6 the words "finding of fact," Your Honour. There were
7 findings of fact under paragraph 124, which are the
8 factual findings of the judgement which refer to the
9 specific acts in the large room that they find for the
10 purpose of the conviction and, as I've already referred
11 to Your Honour in paragraph 264, are the legal findings
12 and the facts they rely on.
13 The references that my friend has referred to
14 regarding the large room, primarily are in the
15 paragraphs which are the recitation of the facts in the
16 first part of the judgement. When the -- when the
17 Trial Chamber refers to the evidence -- if I can just
18 find it. It would be of assistance. When the Trial
19 Chamber refers to specific pieces of evidence, that's
20 in the recitation of the facts. And, with respect,
21 it's not --
22 JUDGE ROBINSON: -- is just part of the
24 MR. FARRELL: Yes. I'll try and find the
25 reference. I remember seeing it earlier. But the one
1 particular reference that is made starts off in this
2 regard. It starts off with: "Witness A recalled ..."
3 And then it continues the paragraph and then it talks
4 about the testimony of Witness A in this regard.
5 This is not part of the factual findings,
6 with respect, and it is under the evidence that was
7 presented at trial. That's the only reference to the
8 knife in the judgement, and it's in the recitation of
9 the facts and the narrative, in my submission, Your
11 JUDGE ROBINSON: You were not counsel in that
12 case at the trial?
13 MR. FARRELL: No, Your Honour, I was not.
14 With respect to this allegation that he was
15 prejudiced because he was found guilty as to the knife
16 to the throat, I'll just make two points on that.
17 The first is that the indictment must set out
18 the concise statement of the facts and the crime. It's
19 to set out, as you are fully aware under Article 18,
20 the identity of the victim, the place and the
21 approximate date of the alleged offence, and the means
22 by which the offence was committed.
23 The material facts are set out in the
24 indictment. It identifies the accused specifically; it
25 identifies the victim specifically; it identifies a
1 very narrow period of time; it identifies the counts of
2 torture; and the outrages upon personal dignity; it
3 identifies the means, which is the interrogation; and
4 it notes the point about the rubbing of the knife by
5 Accused B. This is an
6 illustrative point of the
7 interrogation, and also is used for the demonstration
8 that there is concerted action.
9 The evidence of the knife to the throat is
10 just that, in our submission; it's evidence. The
11 indictment does not have to set out every piece of
12 evidence which forms the interrogation and the means by
13 which the interrogation is carried out.
14 And even if the Trial Chamber relied on it --
15 the Trial Chamber didn't, by the way, and I'll get to
16 that. Even if the Trial Chamber relied on the knife to
17 the throat as a basis for the conviction, in my
18 respectful submission, that would be completely
19 appropriate. The indictment deals with a particular
20 act and a particular conduct and the material facts are
21 set out.
22 If there are things that take place during
23 that interrogation, that doesn't require an amendment of
24 the indictment, that's the evidence which supports the
25 allegations of the indictment.
1 But --
2 JUDGE SHAHABUDDEEN: In other words, you rely
3 on the customary distinction between the facts alleged
4 in the indictment and the evidence relating to the
6 MR. FARRELL: Yes, thank you.
7 My last point on this third piece of evidence
8 which allegedly prejudiced the appellant, the appellant
9 alleges once again that the Trial Chamber relied on
10 evidence which was outside the scope of the
11 indictment. Our submission, it was clearly within the
12 scope of the indictment. In any event, the Trial
13 Chamber never relied on it. There's no reference to
14 the knife to the throat of the victim in the legal
15 findings or the factual findings. Once again, I have
16 cited the paragraphs, but there's no reference to it.
17 The only reference to the knife to the throat is in the
18 narrative or the recitation of facts.
19 The conclusion on this ground of appeal,
20 then, is that the specific concerns which the appellant
21 raised for the majority of his submissions this morning
22 regarding the indictment and his historical
23 presentation of what happened at trial were remedied by
24 the Trial Chamber in its decision. I've submitted that
25 they could have found other means by which this
1 evidence might have been admitted by amending the
2 indictment, but the Trial Chamber decided in the
3 circumstances, and that's not under dispute, that they
4 would exclude the evidence which was at variation from
5 the indictment. With respect to any concerns about
6 being unable to prepare, the appellant never sought an
7 adjournment when he was specifically asked, and said he
8 was intending to proceed.
9 The only complaint, after all of this, that
10 the appellant brings forward at this stage is pieces of
11 evidence which he claims the Trial Chamber relied on,
12 and I've hopefully demonstrated in my submissions to
13 you that the Trial Chamber did not rely on the evidence
14 he alleged and specifically made a ruling and referred
15 to that ruling in its judgement, that it would not rely
16 on evidence outside of the scope in the indictment and
17 in conformity with its order.
18 If I may proceed, then, to the next ground
19 I'd like to address.
20 The next ground relates to the denial of a
21 fair trial in light of the alleged conflicting
22 testimony, and the two points referred to by the
23 appellant this morning were, first of all, the
24 conflicting testimony as to whether the appellant was
25 present in the pantry, and the conflicting testimony
1 with respect to whether or not the appellant
2 interrogated A and D. This is formulated in the
3 appellant's brief, if I understand it correctly, as a
4 misapprehension of the evidence, that the Trial Chamber
5 misapprehended the evidence of Witness D on whether or
6 not the appellant was present in the pantry. And the
7 second is that whether he was the interrogator, it's
8 formulated as a failure of the Trial Chamber to give
9 reasons on a decisive point.
10 On the first, which is the misapprehension of
11 the evidence as to whether the appellant was present in
12 the pantry, it's set out in our brief, and I won't go
13 through it now, that this is alleged as an error of
14 fact; in other words, the Trial Chamber was in error,
15 they made a mistake about the evidence, they made a
16 mistake about whether he was present, because they
17 found that he was present. This is an error of fact,
18 and the onus is on the appellant to demonstrate that no
19 reasonable trier of fact could have found that the
20 appellant was present in the pantry.
21 That would normally be the end of my
22 submissions on this, because Witness A specifically
23 stated he was in the pantry and specifically stated
24 that he was there and committed the interrogation. But
25 that's not the end of it. That would be sufficient
1 evidence upon which a trier of fact could reasonably
2 conclude that he was there. A witness testified to
3 this fact and was cross-examined. In fact, if you
4 check the transcripts, you'll see that at one point in
5 time, Defence counsel at trial does not cross-examine
6 Witness A on whether he was present, and Judge May at
7 the trial said, "If you're going to allege -- if your
8 defence is that he was not present, you at least have
9 to put it to the witness so you can confront the
10 witness and hear their testimony." The Defence counsel
11 then, under the encouragement of Judge May, put it to
12 the witness. "Isn't it true that the appellant was not
13 present in the pantry during the interrogation?" And
14 Witness A categorically states, "The appellant was
15 present throughout." What her testimony is is that he was
16 there when they entered and that he was near the door
17 during the conduct, the assaults by Accused B. In my
18 respectful submission, that's sufficient evidence upon
19 which a trier of fact could decide, if they believed
20 Witness A and if she was credible, that was sufficient
21 evidence to say that the Trial Chamber could conclude
22 that they were present in the pantry.
23 But if I may, let me just refer to a few
24 references in the transcripts.
25 Witness D, as you'll recall, was brought to
1 the small room as a means to confront Witness A. This
2 is no coincidence that Witness D and Witness A are
3 there, and this was specifically in light of the claim
4 by the appellant, by the appellant, not by Accused B,
5 by the appellant that, "If you do not answer our
6 questions, we will confront you with a witness that
7 will cause you to answer our questions." So you can't
8 simply look at the step when they are standing in the
9 pantry. You have to look at the reason for which they
10 are there. The appellant specifically sets this up,
11 specifically threatens Witness A, and then Witness A is
12 taken to the room, and Witness D testifies that Accused
13 B came and got him, and on his way down, they met with
14 the appellant and they entered the room. To claim that
15 the appellant was not there, was not in the room,
16 seemingly didn't know what was going on and just seemed
17 to be watching, negates the very purpose for which they
18 were brought to the room. It negates the very purpose
19 for which Appellant said, "I'm going to confront
21 JUDGE SHAHABUDDEEN: Does it go as far as
22 that? Is learned counsel for the other side taking his
23 submission as far as that or is he merely saying that
24 one is not consistent with the other?
25 MR. FARRELL: I'm sorry, in -- my apologies.
1 Not consistent in what way, Your Honour?
2 JUDGE SHAHABUDDEEN: Well, there's a theory
3 that the accused was not present in the pantry. Your
4 submission is that his -- that that assertion negates
5 the fact that in the large room, he told Witness A,
6 "Look, if you don't cooperate, we will confront you
7 with the other witness in the pantry." Is it a
8 question of negation or consistency?
9 MR. FARRELL: Possibly consistency then. But
10 let me rephrase it then.
11 The purpose for which Witness A is brought
12 and Witness D is brought informs the trier of fact of
13 the reason they are there and who's there. It's one
14 piece of evidence which is consistent with his being
15 there. I accept your qualification, though, Your
16 Honour. So we start from that piece of evidence, which
17 informs the trier of fact of the purpose for which they
18 are there.
19 We then look at Accused D's testimony. The
20 appellant alleges in his brief that the only people in
21 the pantry were Witness A, Accused B, and himself. If
22 you go through the testimony of Witness D specifically,
23 Witness D says, "I was brought by Accused B, the
24 appellant, and another soldier," I think he says, "to
25 this small room, the pantry." Witness D is then
1 specifically asked, "Did you enter the room?" He said,
2 "Yes, we entered the room, we all entered the room."
3 That "all" can only be read as one thing, all the people
4 that he was with, which includes Mr. Furundzija.
5 Then the great discrepancy that my friend
6 alludes to is the fact that he claims to be outside the
7 door. In light of the purpose for which they are
8 brought, in light of the fact that he brought D with
9 Accused B in, in light of the fact that Accused D [sic]
10 says, "He entered into the room with us when we
11 entered, but then he was subsequently standing at the
12 doorway, and he was in the doorway and he could see
13 everything that was happening," for all intents and
14 purposes, the accused was present throughout, and the
15 evidence is not inconsistent in that regard and it is not
16 something that a reasonable trier of fact couldn't have
18 I'll just refer to paragraph 128 in the
19 judgement, and it's a reference to the Accused B's
20 conduct in the pantry. The second sentence begins:
21 "The accused was present in the room as he
22 carried out his interrogations. When not in the room,
23 he was present in the near vicinity, just outside an
24 open door, and he knew that crimes, including rape,
25 were being committed."
1 This is clearly the resolution or the way
2 that the Trial Chamber resolves this issue of exactly
3 where was he. He was clearly there, entered the room,
4 on both witnesses.
5 JUDGE SHAHABUDDEEN: Let me put it to you
6 this way: Somebody said he was outside of the room.
7 Witness A said he was inside the room. Did anybody say
8 he was standing in the doorway?
9 MR. FARRELL: In fact, Witness A indicates
10 that he was standing at the doorway, just inside the
11 room at the doorway.
12 JUDGE SHAHABUDDEEN: So it was open to the
13 Trial Chamber to find accordingly; is that --
14 MR. FARRELL: Absolutely. It's clear that
15 there's probably a space of about one foot between the
16 threshold of the door and the doorway, and both
17 witnesses place him at almost exactly the same spot.
18 And the Trial Chamber finds accordingly.
19 I'll now make my submissions on the failure
20 of the Trial Chamber to give reasons or to address the
21 alleged contradictory evidence regarding the
23 The submissions of the appellant appear to
24 be, if I understand them correctly, that Accused A
25 [sic] says that the appellant was the interrogator,
1 that at various points in time he asked questions --
2 I'm now speaking about the pantry -- that he asked
3 questions in the pantry. The appellant's position is
4 that this was directly contradicted by Accused B [sic], who
5 claims that the appellant never asked any questions in
6 the pantry, and that as a result of the Trial Chamber's
7 reliance on the issue of interrogation in the pantry,
8 the questioning, as part of its findings of fact, that
9 this creates such a clear and glaring contradiction
10 that the failure to address it is an error of law.
11 Before getting to the issue of whether they
12 should or should not have addressed it, the
13 Prosecution's submission is that this is not -- this
14 characterisation of the evidence, in our respectful
15 submission, is going a bit too far.
16 The evidence of Witness D is that he was
17 brought into the room and he was beaten, there was a
18 beating going on. At this point in time, Accused A
19 [sic] was not being beaten, and it appears, though it's
20 not clear, but it appears that -- I think it's fair
21 that it's Accused B that's beating Witness D in the
22 room, with the appellant just at the doorway.
23 The question is: "While you were being
24 beaten, do you recall if anything was said while it was
25 going on?" I'm merging two questions, but the question
1 was: "Where was this lady," and this is Witness A,
2 "while you were being beaten; do you know?" His
3 answer is: "She was inside." Question: "Do you recall
4 if anything was said while this was going on?" Answer:
5 "No." This question: "Do you recall if anything was
6 said whilst this was going on," was in relation to his
7 being beaten. It's not in relation to the overall
8 activities which took place in the room, it's not in
9 relation to the time frames when Witness A was being
10 beaten, and it cannot be interpreted as being a
11 statement that nothing was said and no questions were
12 asked when he was in the pantry. It says: "Do you
13 recall if anything was said?" This is not a question
14 about Mr. Furundzija, this is not a question of whether
15 the appellant asked any questions. This is a question
16 of whether there was a corresponding interrogation at
17 the same time he was being beaten. That's what the
18 question is about, in my respectful submission.
19 The question -- on the next page of the
20 transcripts, there is a question which says something
21 along the lines: "Did the beatings continue?" And he
22 says, in respect to the beatings against himself: "No,
23 because the Accused B turned and started interrogating
24 Witness A."
25 Well, if this statement is to be read that
1 nothing was ever said during the time he was there,
2 that can't be correct, because his next question and
3 answer is that: "After the beating against me stopped,
4 interrogation started against Witness A."
5 So therefore there were questions that took
6 place in the pantry. He only identified Accused B as
7 the one asking the questions. That's fair enough. But
8 he does not state that Furundzija never asked any
9 questions, and he's never asked that. In fact, he's
10 never confronted with the question as to whether or not
11 Furundzija ever asked any questions. He was not asked
12 that in cross-examination, and he was not asked that
13 despite, in my respectful submission, Judge May's
14 comments to the Defence counsel just the day before,
15 with respect to Witness A, that, "You have to confront
16 the witnesses with respect to your defence to allow
17 them to answer to it."
18 When you look at it in light of what
19 happened, there was one question on a particular issue
20 regarding when he was beaten. In my respectful
21 submission, there is not an inconsistency or a glaring
22 contradiction here. The issue is not addressed.
23 That's the submission of the Prosecution. And as the
24 issue was not addressed, there's no failure of the
25 Trial Chamber not to give reasons on a particular issue
1 which was not addressed, was not confronted, was not
2 part of the cross-examination, and was not put to
3 Witness D.
4 What you're left with, then, is Witness D
5 saying, "During the time I was beaten, no one asked me
6 any questions; i.e., there was no corresponding
7 interrogation at the time I was beaten." And that's as
8 far as it goes. That's not a contradiction to anything
9 Witness A says in relation to the questions by
11 Then you have Witness A stating that there
12 was an interrogation. She does state that there was an
13 interrogation of Witness D at one point in time, she
14 does say that the questions by Furundzija were with
15 respect to both of them, but she doesn't identify that
16 the questions asked of Witness D were during his
17 beating. She just indicates that there were questions
18 asked of Witness D and Witness A by Furundzija as part
19 of the interrogation.
20 It's completely logical and the inference can
21 be drawn that there are periods of silence by the
22 inquisitor for the purpose of the continuing beating,
23 to see whether it will get a reaction and then the
24 interrogation might start. There's nothing
25 inconsistent with the manner in which this took place
1 or the answer of Witness D on this issue. If there is
2 something that's there, it certainly doesn't rise to
3 the level of a glaring inconsistency which would result
4 in an error of law by the Trial Chamber for failing to
5 give reasons.
6 In my respectful submission, the Trial
7 Chamber gave ample reasons. They tried to address the
8 material before them. They specifically dealt with the
9 section on the inconsistencies in Witness A's
10 testimony. They refer to the fact that the Defence
11 counsel raised complaints about Witness D's testimony,
12 though not this one specifically, and, in my respectful
13 submission, their reasons are quite lucid on their
15 Those are my submissions on whether or not
16 the evidence is inconsistent or contradictory to the
17 point that would require reasons.
18 If I may, I'll now, well, first of all, speed
19 up but not talk faster, but I would like to just deal
20 with the admission of the evidence of Witness F, the
21 witness who we now call Witness F, and Witness
22 Surkovic, which are two -- there's two issues here.
23 The first issue is the material filed before you, the
24 affidavit, and the second issue is whether the Trial
25 Chamber erred in excluding that material, if I may.
1 Just to be clear, the Prosecution's
2 submission is that this fresh evidence -- this
3 affidavit of Witness F is fresh evidence and falls
4 under Rule 115 and should not be admitted.
5 Defence counsel may refer you to the fact
6 that he filed a motion in June 1999 to this Appeals
7 Chamber, asking to supplement the record on appeal. On
8 July 20th, 1999, the Prosecution response to that dealt
9 with two issues: the evidence he wanted to submit,
10 which is the evidence regarding Judge Mumba; the
11 material that was before the Bureau that he asked to be
12 brought over before the appeal. The Prosecution also
13 noted in there that he had filed an affidavit before
14 the Appeals Chamber and indicated that he should meet
15 Rule 115 before that affidavit is admitted before the
16 Appeals Chamber.
17 The order of the Appeals Chamber on September
18 2nd states that the motion to supplement the record is
19 granted, but the wording is that, "... considering that
20 Rules 115 and 119 of the Rules are not applicable to
21 the material sought to be admitted, which pertains to
22 the appellant's ground of appeal concerned with the
23 partiality of a Judge at trial and not with guilt or
24 innocence of the appellant." With respect, the order of
25 the Appeals Chamber was specifically with respect to
1 the request of the Defence counsel, which was to
2 supplement the record on the evidence regarding
3 Judge Mumba. The reply of the Prosecution raises this
4 additional issue and says the Prosecution's position is
5 he must bring a motion. No motion was brought. In
6 fact -- I'm sorry, Judge Shahabuddeen.
7 JUDGE SHAHABUDDEEN: Mr. Farrell, it is
8 possible that I misapprehend the course of the
9 arguments, and certainly there has been a factor of
10 evolution involved, but at this moment I have the
11 impression that your learned friend on the other side
12 is not taking the position -- if I'm wrong, he can
13 correct me -- that this affidavit statement of the
14 witness is being submitted as additional evidence. My
15 understanding of his purpose is this: that he is
16 merely submitting the affidavit as an indication of the
17 type of evidence which he says was erroneously excluded
18 by the Trial Chamber.
19 MR. FARRELL: Thank you, Your Honour. I have
20 two -- I think you're absolutely right, and it's my
21 submission that that's exactly his point, that it's not
22 new evidence. And my response to that is two-fold:
23 One, the question that this Appeals Chamber must decide
24 is --
25 THE INTERPRETER: Could the counsel please
1 slow down.
2 MR. FARRELL: I'm sorry. Thank you. Thank
3 you, Judge Shahabuddeen.
4 The issue before this Appeals Chamber is
5 whether or not the Trial Chamber erred on the evidence
6 which was before it and whether the evidence and
7 material filed before the Trial Chamber satisfied the
8 purpose for admission of evidence on the reopening.
9 This evidence is irrelevant to your function, which is
10 to determine whether or not the Trial Chamber erred on
11 the material before it in excluding evidence. That's
12 why it should not be before you.
13 My second point is that though he claims this
14 is not new evidence, with respect, there are three
15 pieces of evidence which are in this affidavit which
16 are not in the material before the Trial Chamber, and
17 that clearly makes it fresh evidence.
18 The evidence is -- there's additional
19 evidence on the character of the accused in the
20 affidavit before you, there's additional evidence on
21 her condition at the time in the affidavit before you,
22 and there's additional evidence that this person,
23 Witness F, claims that he met a person who Witness A
24 refers to as Muflon, and then he describes that
25 this Muflon is approximately 172 centimetres
1 tall and had light brown to blonde hair.
2 This is filed two days before the appellant's
3 brief. This affidavit is dated June 23rd, 1999. It's
4 filed two days before the appellant's brief, which
5 raises the ground of appeal that there's a failure in
6 the -- frailty in the identification evidence by
7 Witness A with respect to Mr. Furundzija. This has
8 nothing to do with the reopening, this evidence was not
9 before the Trial Chamber in the material filed as the
10 summation of the evidence, and this is clearly fresh
11 evidence which is improperly before you. And as my
12 friend has acknowledged, this is not fresh evidence,
13 and therefore this whole affidavit should be excluded
14 from your consideration, and the consideration, in my
15 respectful submission, is whether or not the Trial
16 Chamber, on the material filed before it, erred.
17 That is why, as you'll recall, the
18 Prosecution brought an application in August of this
19 year to ask that the documents which were filed
20 regarding this application to admit evidence -- they
21 were filed ex parte at trial. At trial, the
22 Prosecution had no idea about this witness -- I'm
23 sorry, had no idea -- not about the witness, I
24 apologise -- the Prosecution had no idea about the
25 application to bring this witness forward for the
1 reopening. It was filed ex parte.
2 On a determination as to whether or not the
3 Trial Chamber erred in excluding it, the Prosecution,
4 as I've said, is not content to go on an affidavit with
5 new evidence but wants to see whether the Trial Chamber
6 erred. As a result, there was an order by this Appeals
7 Chamber in September, September 2nd, 1999, lifting the
8 ex parte status of the material filed before the
9 Chamber, and access has been granted to the
10 Prosecution. That's the material that the Prosecution
11 relies on to say that the Trial Chamber did not err,
12 because on the material before them, many of these
13 factual statements that are in the affidavit were not
14 before the Trial Chamber.
15 If I can just refer to the particular
16 evidence in the material, there's only one piece of
17 evidence in the material that was before the Trial
18 Chamber that had anything to do with medical matters,
19 if I can put it that way.
20 In the defendant's request before the Trial
21 Chamber, most of the evidence is evidence which, in our
22 submission, is evidence which the Defence could have
23 obtained before trial. It was evidence which the
24 Witness A testified to. You will recall that Witness A
25 spoke about Witness F, the man from a particular place,
1 as where she stayed before she was exchanged
2 immediately after being released. Well, as
3 ineffectiveness or incompetence of counsel is not being
4 raised, this was obviously evidence which was clearly
5 of some relevance to Witness A. She testified to where
6 she stayed afterwards, and she specifically referred to
7 the individual himself. If the Defence counsel felt it
8 was necessary at that point in time to obtain evidence
9 from this individual, Witness F, or to ask for an
10 adjournment to seek out whether or not it was someone
11 who they would like to bring before the Court, then the
12 obligation was on them at the time to do it at the
14 If you refer to the document filed before the
15 Trial Chamber, almost all of it is in reference to
16 identification issues, character, and the comments made
17 by Witness A to Witness F at the time she stayed at his
18 house before she was -- after she was released and
19 before she was exchanged to go to Zenica. There's two
20 references. One is that during the time that she was
21 at Witness F's house, she was clothed, fed, and
22 received medical attention until her exchange. And the
23 other is that Witness A -- sorry, Witness F believed
24 that Witness A was on the edge of insanity and that she
25 had confided in him that she was suicidal. With
1 respect, this has nothing to do with treatment or
2 counselling, it has nothing to do with the issue
3 regarding the reopening, and the Trial Chamber clearly
4 did not err.
5 The Prosecution's position is essentially the
6 same with respect to the witness Surkovic. Clearly,
7 the Defence counsel was fully aware of it, and in fact
8 the Defence counsel cross-examined Witness A on the
9 Surkovic -- the statement that was allegedly taken by
11 It's not a case where the Witness A denies
12 that she met or spoke with Surkovic. She denies in her
13 testimony that it was her signature on the statement.
14 That's the issue. She doesn't deny that she spoke with
15 Mr. Surkovic and that she told him certain things.
16 That is clearly before the Trial Chamber. She was
17 cross-examined on it, and it was a matter that was
18 dealt with during Witness A's testimony.
19 Once again, in my respectful submission,
20 there is no issue with respect to the Trial Chamber's
21 exclusion of this evidence.
22 In light of our comments that we would finish
23 by 3.45, I have been tasked to address other issues in
24 relation to grounds 1, 2 and 3, so not the ground
25 related to Judge Mumba, not the ground related to
2 If there is any questions on those grounds,
3 I'll attempt to be of assistance. If not, I'll allow
4 my colleague at least 15 minutes to address you on the
5 sentencing ground.
6 JUDGE SHAHABUDDEEN: Your colleague may take
7 the floor.
8 MR. FARRELL: Thank you, Judge Shahabuddeen.
9 MR. STAKER: May it please the Chamber, the
10 Prosecution's detailed response to the appeal against
11 sentence is contained in the Prosecution response
12 brief. I would confine myself merely to a few
13 supplementary submissions.
14 The first relates to the standard of review
15 by the Appeals Chamber in an appeal against a
16 sentence. That is dealt with in paragraph 7.5 to 7.7
17 of our response brief. The Prosecution position is
18 that the standard of review is an abuse of discretion
19 standard; that the Appeals Chamber should not interfere
20 with the sentence imposed by a Trial Chamber merely
21 because the Appeals Chamber feels that a different
22 sentence would be more appropriate.
23 The discretion in relation to sentencing
24 matters, we submit, is that of the Trial Chamber and
25 not of the Appeals Chamber, and that the Appeals
1 Chamber would only grant an appellate remedy if the
2 Trial Chamber erred either on matters of law
3 prejudicing the convicted person or if the Trial
4 Chamber has gone beyond the scope of its legitimate
6 In relation to that, I would now draw the
7 Appeals Chamber's attention to relevant parts of the
8 Tadic sentencing appeal, which was decided on the 26th
9 of January this year, which was after our response
10 brief was filed.
11 In paragraph 20 of that judgement there is a
12 passage at which the Appeals Chamber says that it could
13 find no error in the exercise of the Trial Chamber's
14 discretion in imposing the sentence that it did, and
15 that it would therefore not quash the sentence that was
16 imposed, and substitute its own instead.
17 There is a similar reference in those terms
18 in paragraph 21, and again in paragraph 73 of that
19 judgement. So we would submit that since our response
20 brief was filed, we now have authority of this Appeals
21 Chamber for the standard of review for which we are
23 The question then is whether an abuse of
24 discretion has been established by the appellant in
25 this case. And we say that the burden is on the
1 appellant to establish that. The alleged error set out
2 in the appellant's brief is the allegation that the
3 sentence imposed in this case was inconsistent with
4 what the appellant refers to as the emerging penal
5 regime of the International Tribunal.
6 And if one looks at the argument in the
7 appellant's brief, what it essentially does is take the
8 various sentences that have been imposed by this
9 Tribunal in different cases, in relation to different
10 crimes, and seeks to extrapolate from that some kind of
11 -- one could call them almost mathematical principles,
12 which it is then claimed are the governing sentencing
13 principles in this Tribunal.
14 The conclusion, as a result of that analysis,
15 is set out on page 155 of the appellant's brief. The
16 formula which the appellant seeks to derive from this
17 analysis is that the maximum sentence that can be
18 imposed by this Tribunal in relation to a war crime is
19 nine years. And it seems that that submission is put
20 by the appellant, regardless of the nature of the war
21 crime. Indeed a reference is made to the Erdemovic
22 case, and the suggestion is that even a war crime
23 involving the killing of 70 people would lead to a
24 maximum sentence of nine years. I would submit that is
25 a proposition that would only need to be stated to be
2 The appellant's brief then goes somewhat
3 further and says that if the war crime in question does
4 not lead to the death of the victim, that it must be
5 discounted by three years, so that the maximum sentence
6 that could be imposed in this case is six years.
7 The Prosecution submits that there are a
8 number of fundamental errors in this kind of analysis.
9 The first is that the samples taken in this analysis
10 are relatively few in number. They involve a variety
11 of different crimes, committed by a variety of
12 different accused, with different personal factors and
13 different aggravating and mitigating circumstances.
14 And the Prosecution would submit that from that small
15 sample, one couldn't seek to derive principles that
16 would be of general application in all cases.
17 Secondly, and more importantly, the decisions
18 relied on are principally decisions of Trial Chambers.
19 In fact, they were all decisions of Trial Chambers,
20 apart from the one reference to the Erdemovic appeal.
21 But the Erdemovic appeal, of course, was not concerned
22 with sentencing principles. It was concerned with the
23 issue of the validity of a plea of guilty, and it's
24 submitted that doesn't provide any guidance in relation
25 to sentencing matters.
1 The difficulty with relying on decisions of
2 Trial Chambers, of course, is that they are not binding
3 on the Appeals Chamber. Indeed, some Trial Chambers
4 have expressed the view that they are not binding on
5 other Trial Chambers. A further difficulty still is
6 that many of these decisions of Trial Chambers are
7 presently the subject of pending appeals.
8 In fact, most of the sentences imposed, both
9 by this Tribunal and the International Criminal
10 Tribunal for Rwanda, are the subject of pending
11 appeals. And, of course, the Appeals Chamber couldn't
12 take, as a reference point in one case, a sentence
13 subject to appeal in another case without prejudging a
14 pending appeal in another case.
15 Thirdly, and even more importantly still, we
16 would submit, the problem with this analysis is that
17 it's undermined by certain recent decisions of this
18 Appeals Chamber. The appellant, for instance, places
19 reliance on the Trial Chamber's decision in Aleksovski,
20 and says that the Aleksovski Trial Chamber sentence is
21 entirely consistent with the International Tribunal's
22 emerging penal regime. The Appeals Chamber will be
23 aware that the sentence in that case has now been
24 revised by the Appeals Chamber, last month, thereby
25 undermining the appellant's theory of what the supposed
1 emerging penal regime is.
2 The appellant's analysis also relies on the
3 proposition that an act performed as a crime against a
4 humanity is, all else being equal, more serious than
5 the same act committed as a war crime, and that
6 proposition must now also be regarded as incorrect, in
7 light of the Tadic sentencing appeal.
8 The proposition that the maximum sentence for
9 a war crime is nine years is also contradicted by the
10 recent Tadic sentencing appeal, since the Appeals
11 Chamber in that case revised sentences and ultimately
12 pronounced sentences of 20 years for wilful killings
13 under Article 2, and murders under Article 3.
14 And finally, the analysis undertaken by the
15 appellant is not, in fact, even supported by some of
16 the Trial Chamber decisions cited. The appellant's
17 brief appears to concede that the sentences imposed on
18 one of the accused in the Celebici case for counts 18
19 to 20 were inconsistent with the calculations in the
20 appellant's brief. And yet, for the reasons given in
21 the Prosecution's response brief, we would submit that
22 that is in fact the sentence probably most closely
23 analogous, on its facts, to the circumstances of this
25 The Prosecution doesn't take issue with the
1 general proposition that the Appeals Chamber should
2 establish general sentencing guidelines in order to
3 achieve consistency and evenhandedness, but these
4 principles will have to be established by the Appeals
5 Chamber itself, for the guidance of Trial Chambers,
6 rather than vice versa, rather than the suggestion that
7 the Appeals Chamber take as guidance the sentences that
8 have been handed down by Trial Chambers to date.
9 The Prosecution response brief sets out what
10 the Prosecution submits are the appropriate sentencing
11 principles in this Tribunal. And I needn't repeat all
12 that is there.
13 I do draw the Chamber's attention to the fact
14 that similar submissions were made by the Prosecution
15 in the appeal against sentence in the Aleksovski case.
16 The Prosecution appeal in that case has now been upheld
17 in an oral judgement by the Appeals Chamber, so, in a
18 sense, these submissions have already been ruled upon
19 by a differently constituted Appeals Chambers, although
20 no reasons for decision have been given in that yet.
21 So it's not possible to tell to what extent or on what
23 I also draw the Appeals Chamber's attention
24 to the fact that similar submissions have also been put
25 in the written briefs in the Celebici case, the
1 Celebici appeal by the Prosecution. I am not
2 suggesting that the Appeals Chamber should go beyond
3 the scope of the submissions in this case, but clearly
4 the issue of these general principles is one of general
5 importance in the practice of the Tribunal as a whole.
6 The Prosecution submissions as to what the
7 applicable principles are start with the premise that
8 the main purpose of sentencing in this Tribunal is
9 deterrence. And we identify two main aspects to
10 deterrence: what we call the suppressive aspect, which
11 is probably what is traditionally understood as
12 deterrence, and the educative aspect, which is the
13 international community's expression of revulsion and
14 condemnation of these crimes and its refusal to
15 tolerate them.
16 In our brief we also refer to the purpose of
17 retribution. It may be that this is synonymous with --
18 or overlaps considerably with - what we describe as this
19 educative aspect. We note also that some decisions of
20 Trial Chambers have also identified other purposes of
21 sentencing, including protection of society,
22 stigmatisation, and reconciliation and restoration of
23 peace in the former Yugoslavia. We would
24 submit that to the extent that these
25 may be recognised as valid purposes of sentencing in
1 this Tribunal, they can generally be subsumed under the
2 broader concept of deterrence, as we've defined it.
3 What we would, however, submit is that
4 despite references to rehabilitation as a factor in
5 decisions of some Trial Chambers, this cannot be a
6 primary purpose of sentencing in this Tribunal.
7 National criminal justice systems generally have a much
8 wider range of sentencing options, including fines,
9 community service orders, parole and supervised
10 release, enabling rehabilitation to be a more prominent
11 factor. The Tribunal doesn't have these options, yet
12 the Tribunal was established, despite the limited
13 sentencing options that it would have, to deal with
14 these crimes precisely because of their very
15 seriousness, and the purpose of the Tribunal is to
16 deter them.
17 In relation to this general premise, I draw
18 attention to paragraph 48 of the recent Tadic
19 sentencing appeal, where it's said by the Appeals
20 Chamber that it's accepted the deterrence may
21 legitimately be considered in sentencing, but that it
22 should not be accorded undue prominence in the overall
24 THE INTERPRETER: Could the counsel slow
25 down, please.
1 MR. STAKER: That finding is not elaborated
2 on in detail in that judgement. And it may be a matter
3 of some interpretation as to what "undue prominence"
4 would be. Presumably, if deterrence were the only
5 consideration in sentencing, one would always impose
6 the highest sentence in every case because this would
7 have the greatest deterrent effect, and we would
8 concede, of course, that would be giving undue
9 prominence to deterrence as a factor.
10 We would submit that the finding of the
11 Appeals Chamber in that case is not necessarily
12 inconsistent with the position being put by the
13 Prosecution. The Prosecution position is that
14 sentencing must begin with an assessment of the gravity
15 of the crime and take account of individual factors,
16 and on that basis, it's submitted that seeing
17 deterrence as the primary purpose of sentencing is not
18 to give it undue prominence in the assessment of what
19 the actual sentence is.
20 On the subject of the Tadic sentencing
21 appeal, I should also draw attention to the finding of
22 the Appeals Chamber there at paragraphs 51 to 58, in
23 which one of the appellant's grounds of appeal was
24 upheld relating to the need to develop a range of
25 sentences based upon the relative position of the
2 In that case the Appeals Chamber said that
3 although the criminal conduct of the convicted person
4 was incontestably heinous, the accused's level in the
5 command structure, when compared to that of commanders,
6 was low, and this justified a reduction of sentences of
7 25 and 24 years to 20 years.
8 The Prosecution submits that this finding is
9 also not inconsistent with the position put by the
10 Prosecution --
11 THE INTERPRETER: Would the counsel slow
12 down, please.
13 MR. STAKER: It relates to another principal
14 point made in the Prosecution brief, which is that
15 sentences imposed by this Tribunal should not generally
16 be lower than the type of sentences that would be
17 imposed by a national court in respect of similar
18 conduct for a crime committed under national law.
19 If that were the case, the message to the
20 international community would be that a particular act,
21 if committed as a war crime, or a crime against
22 humanity, is somehow a lesser offence than the same
23 conduct when committed as a crime under national law.
24 It's accepted then that crimes of different
25 gravity should in principle receive sentences of
1 different gravity, but there comes a point at which - that
2 must cease to be meaningful. If a person has committed
3 a crime warranting the maximum sentence available, one
4 assumes circumstances that -- say 100 victims were
5 killed; one can't discount that sentence from the
6 maximum to allow room for other perpetrators who might
7 have killed 1.000 or 2.000 victims.
8 The same comment applies in relation to the
9 relative level of perpetrators. It may be, and we make
10 this point in our brief, that where a person orders or
11 plans a large-scale crime, the culpability, the gravity
12 of that perpetrator's conduct, may be greater than that
13 of individual perpetrators, because individual
14 perpetrators are responsible for the particular crimes
15 they commit, whereas the planner or instigator may be
16 responsible for the crimes of many. But in the case of
17 an individual --
18 JUDGE ROBINSON: I'm sorry, I was interested
19 in what you said earlier about comparison with national
20 practice. Did you have in mind any particular country,
21 or are you just speaking generally?
22 MR. STAKER: Of course, Your Honour, the
23 Statute and the Rules do mandate that the Trial
24 Chambers have regard to the practice of the courts in
25 the former Yugoslavia. And this is a matter that is
1 routinely taken into account by Trial Chambers. I
2 think there has always been a practical difficulty in
3 that respect, because the sentencing practice of the
4 courts in the former Yugoslavia is not just a matter of
5 ascertaining what the legislation was, but what the
6 actual practice of the courts was. And that may be a
7 matter of difficult research. But if it's also
8 accepted that the crimes within the jurisdiction of
9 this Tribunal are international crimes, that they apply
10 universally in all countries, there would be a certain
11 arbitrariness as well, if the punishment imposed for
12 such crimes could vary widely, depending on different
13 national jurisdictions.
14 JUDGE ROBINSON: That's what I had in mind,
15 whether you are able to point to any trial in a
16 particular country relating to this kind of case.
17 MR. STAKER: Our submission would be, Your
18 Honour, that this Tribunal can't be bound to the
19 national provisions of any one country. It's also
20 accepted that when one refers to national legal systems
21 generally, it's very hard to make comparisons, because
22 there may be wide divergences between the types of
23 sentences that would be imposed from one country to
24 another for exactly the same conduct.
25 What I have submitted, perhaps, is a very
1 general sort of comparison to the types of sentences
2 one would normally expect in a national jurisdiction.
3 It's perhaps harder to say much more than that, other
4 than that one recognises, when one sees a sentence that
5 seems very low, compared to what would normally be
6 given in a national jurisdiction for the same conduct.
7 This also relates to the discretion of the
8 Trial Chamber, that if there are considerable
9 variations in the types of sentences that would be
10 imposed by national courts, this reflects the range of
11 discretion that a Trial Chamber would have in matters
12 of sentencing.
13 JUDGE SHAHABUDDEEN: Would it be all right,
14 Mr. Staker, if we were to extend your time by five
16 MR. STAKER: I would be very appreciative,
17 Your Honour.
18 JUDGE SHAHABUDDEEN: The Bench agrees.
19 MR. STAKER: Thank you, Your Honour. The
20 Prosecution submits that when these principles are
21 applied to the facts of this case, the appellant has
22 established no abuse of discretion by the Trial
23 Chamber. It must be expected that the crimes of which
24 the accused was convicted would be treated as very
25 serious crimes in a national legal system. As the
1 Trial Chamber found, torture is one of the most serious
2 offences known to international law. That was stated
3 at paragraph 281 of the Trial Chamber's judgement.
4 Additionally, the Trial Chamber noted various
5 aggravating factors.
6 In the Tadic sentencing appeal, the Appeals
7 Chamber affirmed that the Tribunal is not bound by the
8 20-year maximum or any 20-year maximum under the law of
9 the former Yugoslavia.
10 Under the express terms of Rule 101(A) of the
11 rules of this Tribunal: "A convicted person may be
12 sentenced to imprisonment for a term up to and
13 including the remainder of the convicted person's
14 life." And although it's submitted that sentences
15 imposed by Trial Chambers can't be a point of reference
16 before this Appeals Chamber, we do note that in several
17 cases before the International Criminal Tribunal for
18 Rwanda, sentences for the remainder of the convicted
19 person's life have been imposed on six persons, and
20 that in the Jelisic case before this Tribunal, a
21 sentence of 40 years was imposed.
22 And viewed in the context of that sentencing
23 range, the Prosecution submits that the overall 10-year
24 sentence imposed in this case can't be considered even
25 anywhere near the high end of the sentencing scale.
1 And it's submitted, on that basis, that the appellant
2 has demonstrated no abuse of discretion by the Trial
4 I would finally just refer to one other
5 argument which is developed in the appellant's reply
6 brief and was also mentioned orally this morning, which
7 is to the effect that, in view of the inconsistencies
8 and uncertainty of the evidence, there ought to be some
9 mitigation to take account of that factor. The
10 Prosecution's submission would be that this is simply
11 inconsistent with basic principles of criminal law.
12 The Trial Chamber has to determine whether
13 guilt is proved beyond a reasonable doubt, and if the
14 evidence is so inconsistent and uncertain that there is
15 a reasonable doubt, the accused will be convicted.
16 And if the Trial Chamber finds that the guilt
17 has been proved beyond a reasonable doubt, then
18 sentencing must be based on the facts, as found by the
19 Trial Chamber.
20 What the appellant seems to be suggesting is
21 that an accused might be convicted where there are
22 doubts, but those doubts would then be taken into
23 account by imposing a lower sentence, and the
24 Prosecution would submit that that is an inadmissible
1 Unless I can be of further assistance, they
2 are the submissions of the Prosecution on the
3 sentencing appeal.
4 JUDGE SHAHABUDDEEN: The Chamber is grateful
5 to you. We will now suspend and we'll return at 10
6 minutes past 4.00 to hear you for 30 minutes.
7 THE INTERPRETER: Microphone, Your Honour.
8 MR. MISETIC: I hope I can respond to all of
9 that in 30 minutes.
10 JUDGE SHAHABUDDEEN: Thank you.
11 --- Recess taken at 3.50 p.m.
12 --- On resuming at 4.12 p.m.
13 JUDGE SHAHABUDDEEN: This sitting is
14 resumed. Mr. Misetic, you have the floor.
15 MR. MISETIC: Thank you, Your Honour. I too
16 will try to be quick, but slow-paced for the
17 translators in the booth.
18 I'm going to first try to address the
19 response -- respond to the Prosecution presentation
20 point by point in the order that they did, and then my
21 concluding remarks.
22 First, the issue of standard of review was
23 raised and that the standard of review allegedly is
24 that the Appeals Chamber can only look to see whether
25 there is a reasonable basis to make this conclusion.
1 We obviously fundamentally disagree with that. It's
2 against the overwhelming case law in common-law
3 jurisdictions, and that is mostly where the standard of
4 "beyond a reasonable doubt" comes from.
5 Furthermore, in counsel's argument towards
6 the end, when he discusses the Tadic decision to
7 overturn -- the Tadic appellate decision to overturn a
8 finding that there was reasonable doubt and they
9 overturned it in favour of the Prosecution, counsel
10 basically, in effect, admitted what the standard is,
11 and I think that in his resumation of that standard, we
12 would be in agreement, and that is that the standard of
13 "beyond a reasonable doubt" is incorporated into that
14 standard that first appears in the Tadic decision, and
15 that is when you are analysing whether there is a
16 reasonable basis to make this conclusion in the
17 evidence, presumed or assumed into that standard is
18 that you're looking to see whether there is a
19 reasonable basis to make this conclusion that there was
20 no reasonable doubt. Again, that is precisely what
21 subsequently happens in the Tadic appellate decision.
22 The Appellate Chamber finds that the Trial Chamber's
23 decision that there was reasonable doubt was
24 unreasonable, and so you do have the authority to
25 review the evidence and determine whether or not a
1 reasonable doubt existed.
2 I hope you were able to follow that or I was
3 able to articulate that, I hope.
4 So, again we proceed on that basis, and we
5 say that you need to review the evidence and to
6 determine whether or not a reasonable doubt existed.
7 From that point, counsel doesn't address what
8 "reasonable doubt" is. They just say, "You can't look
9 at reasonable doubt in this case," and so therefore I
10 would submit to you that the extension then -- the more
11 detailed analysis then is, "What is a reasonable
12 doubt?" And again I don't think there is any
13 disagreement with the Prosecution, in that the standard
14 that they espoused for what "proof beyond a reasonable
15 doubt" is in the Tadic appellate decision is precisely
16 the exact same standard that I am arguing for now,
17 which is you have to look to see whether there is a
18 fair or rational inference of the evidence of
19 innocence. In Tadic, they argued that there wasn't,
20 and the Appellate Chamber agreed and convicted Tadic.
21 In this case, we're arguing, "Apply the same standard,
22 only looking at the evidence, you have to acquit
23 because there is a fair or rational inference."
24 I think our position on what the standard of
25 appeal is is consistent with common law, and consistent
1 with the Tadic appellate decision, and is precisely
2 what the Tadic Appellate Chamber did in overturning the
3 Trial Chamber's finding that there was reasonable
5 I'm going to try to move quickly through
6 these arguments.
7 The issue with respect to Witness D. I find
8 it unfortunate that there is some inference that we
9 tried, through subterfuge or something like that, to
10 insert an issue. The fact of the matter is it is in
11 our appellate brief. We flushed it out more in the
12 reply brief. We've had four months since the filing of
13 the last pleading in this case, which was in November.
14 We had no motion to strike that as an issue, we had no
15 conference or communication between the parties on that
16 issue, and this is the first I've heard an objection,
17 and so I again say that it was raised in the briefs and
18 we ask you to consider it.
19 They turn then in response to our argument
20 about sequencing, and it's not consistent with what
21 happened at trial.
22 First, there is this allegation that
23 Judge Mumba put it to me that we could have some sort
24 of a recess, and I've, in the break, tried to find
25 where that exists. And at least on the date in
1 question when we made the motion, I can't find that
2 anywhere in the transcript. I do recall at
3 approximately -- on the opening of the trial, prior to
4 trial, Judge Mumba asked us if we wanted a recess, but
5 it had nothing to do with any of the issues here. It
6 had to do with the fact that the Prosecution was
7 delinquent in discovery and turning over witness
8 statements, and Judge Mumba had proposed that we delay
9 the trial and take an adjournment. If I'm wrong, I
10 trust that counsel will correct me. But as far as I
11 can recall, and looking through my computer here, there
12 was never an issue of Judge Mumba asking us if we
13 wanted an adjournment, and indeed it is illogical that
14 she would have done that, given that they granted our
16 Now, we've spent quite a lot of time on this
17 issue of notice. There is no question as to what was
18 alleged by the Prosecution, and in their appellate
19 brief here, as I pointed out earlier, there is an
20 admission that the pre-trial brief alleges that certain
21 acts took place prior to the defendant's arrival. Now
22 they are alleging that -- to be honest with you, I'm
23 trying to still gather what exactly their position is,
24 because they ignore the fact that all of the
25 submissions they've made here on appeal were rejected
1 by the Trial Chamber. So this argument that the
2 indictment -- that, (A), that we're not allowed -- or
3 that somehow counts 9, 10 and 11 don't apply to
4 Mr. Furundzija, those arguments were addressed at trial
5 because we raised it at the appropriate time, and they
6 were addressed in our favour and against that very
7 position that the Prosecutor now puts forward on
8 appeal. And I would argue that in doing this through
9 their response, they are indirectly appealing the Trial
10 Chamber's orders of June 12 and June 15.
11 All of these issues were litigated at trial.
12 The fact of the matter is that our notice argument was
13 accepted at trial. To the extent that we have
14 re-raised the notice issue on appeal, it is because the
15 Trial Chamber's failure to adhere to its own order then
16 leads to two problems. One is that the admitted
17 failure -- that the admitted inconsistency is with the
18 indictment, and the admitted -- the Trial Chamber's
19 admission that we would not have a fair trial, okay,
20 raises back again the issue of whether or not we had
21 fair notice in the indictment stage or, alternatively,
22 raises the issue of whether or not then the Trial
23 Chamber committed error in not adhering to its own
25 If you look at the decision, the very
1 decision that we're arguing about here is an order from
2 the 12th of June, and it basically says as follows:
3 "... hereby allows the oral motion and holds
4 that in the circumstances, the Trial Chamber will only
5 consider as relevant Witness A's evidence insofar as it
6 relates to paragraphs 25 and 26 as pleaded in the
7 indictment against the accused."
8 Now, counsel has mischaracterised what the
9 oral motion was, and I've retrieved it here and I would
10 like to just put it to you as to what the conversation
11 was between myself and Judge May as to --
12 THE INTERPRETER: Microphone for the counsel,
14 MR. MISETIC: -- as to what -- it says it's
15 on. Can you hear me now?
16 JUDGE SHAHABUDDEEN: Yes.
17 MR. MISETIC: Okay. There is a point at page
18 507 of the trial transcript where I am arguing and I
19 specifically tell the Court that, "If we are going to
20 litigate the large room now, I'm going to have to
21 travel back to the former Yugoslavia to find
22 witnesses." And Judge May specifically asks -- and I'm
23 sorry, here I'm working by myself, so -- here is the
24 oral motion that the written order says was granted.
25 Judge May: "Going back to the question I asked,
1 though, what are you asking us to do?" My answer: "We
2 are asking you to strike, to strike the portions of her
3 testimony with respect to room 1. It can stay with
4 respect to the pantry." That was the oral motion. And
5 the written order then says: "The defendant's oral
6 motion is granted."
7 For the Prosecution's new argument now to say
8 that this only applied with respect to the rape and
9 that that wasn't taken into consideration ignores my
10 oral motion and the written order saying that this oral
11 motion was granted, and the oral motion was to strike
12 the entire testimony.
13 Now, I don't think there's an ambiguity in
14 this in terms of what was the decision. The
15 Prosecution is now claiming that there is an ambiguity
16 here, at least arguing indirectly that there is an
17 ambiguity. I would submit to you that if the Trial
18 Chamber did not want to strike her testimony with
19 respect to the large room, then this order should say:
20 "... denies the Defence oral motion, but in the
21 circumstances will exclude her testimony only about
22 rape in the large room." But it doesn't say that.
23 Again, so this is what we were relying on,
24 and I again also ask you to consider what I had read
25 earlier. "If the large room was at issue," I
1 specifically said to the Court, "tell me, because then
2 I need to take a break and I need to go down to Bosnia
3 and start finding witnesses." Instead, all we got was
4 this: "We grant the oral motion."
5 So I stand on the ground of appeal for two
6 reasons: one, the argument that they misled us, the
7 Prosecution did, in terms of its indictment and
8 pre-trial pleadings; and, two, that there was error in
9 terms of not following the orders of the 12th and the
10 15th of June.
11 The concerted action findings. Now, this --
12 I find the argument somewhat remarkable, but it appears
13 that the argument is that the Trial Chamber recited
14 certain facts, but then did not rely on those facts in
15 convicting my client.
16 The question I have for the Prosecution,
17 then, is why go through the process of reciting the
18 facts if you don't intend to rely on them? And
19 furthermore, a fair reading of the judgement does not
20 support that conclusion.
21 Paragraph 108 of the judgement is the first
22 paragraph under a section titled "Findings." Within
23 that paragraph it says: "The Trial Chamber accepts her
24 evidence ...", meaning Witness A's evidence, "... she
25 has sufficiently recollected these material aspects of
1 the events. So the Trial Chamber has accepted her
3 Now we get to the factual findings, which is
4 still within subpart 4 of findings. And it says:
5 "Having considered the evidence, the Trial Chamber is
6 satisfied beyond a reasonable doubt that the following
7 findings can be made."
8 We'll skip the first part, because it's not
9 relevant to the argument, but paragraph 123, towards
10 the end: "She is brought to the Bungalow. Around her,
11 the soldiers dressed in Joker uniforms, awaited the
12 arrival of the man referred to as 'the boss.' Witness A
13 then heard someone announce the arrival of Furundzija,
14 and the man she identified, to the satisfaction of the
15 Trial Chamber as being Anto Furundzija, the accused,
16 entered the room, holding some papers in his hands."
17 First, there is the first factual finding.
18 He shows up first, in the judgement.
19 124: "Witness A was interrogated by the
20 accused. She was forced by Accused B to undress and
21 remain naked before a substantial number of soldiers."
22 There is the first inconsistency with the
23 indictment. She was forced to undress under all --
24 under the indictment and the pre-trial pleadings, well
25 before Anto Furundzija was alleged to arrive. Indeed,
1 she was forced to undress, she was threatened with a
2 knife, et cetera, by Accused B, and then subsequently
3 raped, multiple times, by Accused B before
4 Mr. Furundzija is alleged to have arrived.
5 This is the next sentence which I think
6 clearly then incorporates all of the factual findings
7 or the factual recitation prior to this. "She was
8 subjected to cruel, inhumane and degrading treatment
9 and to threats of serious physical assault by Accused B
10 in the course of her interrogation by the accused."
11 There we have the rest of it. This is a
12 legal conclusion about cruel, inhumane and degrading
13 treatment which incorporates the knife to the throat,
14 et cetera.
15 There is simply no other way of looking at
16 the evidence. And the fact that all of these facts,
17 which I put up on these boards and spent two hours
18 going over with you, are recited by the Trial Chamber,
19 and then in its findings of fact it, in an umbrella,
20 says she was subjected to cruel, inhumane and degrading
21 treatment. Any fair reading of this, then, would have
22 you refer back to what the facts alleged are, to
23 determine exactly what the Trial Chamber is talking
24 about there.
25 And I think it's clear, reading all of the
1 evidence together, that these cruel, inhumane -- this
2 cruel, inhumane and degrading treatment is the knife to
3 the throat, forcing her to undress, et cetera.
4 It goes on. The last sentence of that
5 paragraph: "The interrogation by the accused and the
6 abuse by Accused B were parallel to each other."
7 This sentence falls within a finding in the
8 large room. There can be -- now it's clear. He
9 arrived first. She is then forced to undress at knife
10 point, et cetera, during his interrogation. So there
11 is no fair reading of this to support what they are
12 trying to say, which is, "Yes, there are all these
13 recitations of fact, but you have to confine yourself
14 to these few paragraphs. And if it doesn't say it
15 within these three paragraphs, then the Trial Chamber
16 didn't rely on it."
17 I don't think that that's a fair reading of
18 the evidence. And I would again submit that it is
19 clear that the Trial Chamber put him at the beginning
20 of this sequence of events and then made certain
21 conclusions on the basis of those findings; that he was
22 there from the beginning, et cetera, et cetera.
23 Even the finding that he left her in the
24 custody of Accused B to be raped. Again, I don't see
25 how that is consistent with the June 12th order. Even
1 that -- and that finding alone, which says that it will
2 not consider evidence of rape or sexual assault in the
3 large room. Then why reference it at all? Instead
4 there is a specific conclusion in the judgement that he
5 did so.
6 So again, the Defence rejects the conclusions
7 that somehow he was not placed there at the beginning,
8 that he was not responsible from the beginning for all
9 of these acts that transpired, et cetera.
10 Now, Witness D's testimony. Your Honour, to
11 say that it is a stretch, their interpretation of
12 Witness D's testimony is a stretch --
13 JUDGE SHAHABUDDEEN: Just one minute. I have
14 before me the inadmissibility ruling of 15 June.
20 Now, what you were referring to was some
21 evidence to the effect that the accused left Witness A
22 in the large room to be raped by Accused B. Is that
23 the same thing as an act of rape committed in the
24 presence of the accused in the large room?
25 MR. MISETIC: There are clearly legal
1 consequences found by the Trial Chamber in this
2 judgement. What the extent of the difference is, is
3 something that I have not thought about. But clearly,
4 under either scenario, there are legal consequences for
5 that conduct. And I would ask you to keep in mind the
6 June 12th written ruling, which is also something that
7 you should have in considering this.
8 Does the Court have a copy of that?
9 JUDGE SHAHABUDDEEN: I do.
10 MR. MISETIC: Where it says, "allows the oral
11 motion and holds that in the circumstances the Trial
12 Chamber will only consider as relevant Witness A's
13 evidence insofar as it relates to paragraphs 25 and
14 26." Which is exactly what we had wanted. And we got
16 And then finally I would say that it was
17 clear what our point was. We had not yet put on our
18 case in chief. If the large room was an issue, tell
19 us, so that we can get evidence and put it on; that he
20 was not in the large room; that none of this happened
21 in his presence, et cetera. But we never got that
23 And that takes me back to that whole argument
24 I made at the beginning about fairness. All we wanted
25 was an opportunity to put on a defence. We didn't get
1 that opportunity. We get these orders and then, at the
2 end of the day, we find out that, although I had asked
3 the Trial Chamber to let me know whether the large room
4 was at issue, I was told no, and then the judgement
5 said yes. That's the issue of fairness that I am
6 talking about. And that's where we want the Appellate
7 Chamber to intervene, if nothing else, to preserve some
8 fairness to allow him to defend himself or to acquit
9 him directly.
10 This issue of Witness D. The Prosecution
11 cites one question and one answer and takes it
12 completely outside the context of the rest of that
14 There is no question what he is saying here. It
15 starts on paragraph 347. (redacted)
13 page 180 redacted
13 page 181 redacted
7 Now we are going to try to stretch, try to
8 place semantics with words, to try to read in a little
9 possibility that maybe he meant he doesn't recall who
10 was interrogating or whether anything was being said.
11 I submit that that is clearly not an
12 acceptable reading of the evidence.
13 Furthermore, to clear up any ambiguity
14 whatsoever, he gave a witness statement prior to
15 trial. Now, that witness statement, from our
16 perspective, was not in evidence. So we didn't use it
17 in closing argument. However, in reviewing the
18 judgement and preparing for this argument, I came to
19 realise that the judgement makes nine footnotes to an
20 exhibit called D8. D8 is Witness D's witness
21 statement, which is not in evidence. So the Trial
22 Chamber uses a statement not in evidence to support its
24 From my perspective, that's fine. However,
25 we should have known that this statement is fair game
1 and we could argue it. Because if we could have argued
2 it, and I think it's up to you to rule whether the
3 Trial Chamber had committed error in relying on
4 testimony --
5 JUDGE SHAHABUDDEEN: Mr. Misetic, can you
6 help me. Are you referring to the judgement, to any
7 particular part?
8 MR. MISETIC: I will cite the footnotes for
9 the record. Footnote 102, footnote 107, footnote 109,
10 footnote 114, footnote 116, footnote 119, footnote 120,
11 footnote 121, footnote 126.
12 JUDGE SHAHABUDDEEN: Which one refers to this
14 MR. MISETIC: You need a copy of the Defence
15 exhibits, but they all refer to Defence Exhibit 8 and
16 Defence Exhibit 8 --
17 JUDGE SHAHABUDDEEN: I see that in 102,
18 Defence Exhibit 8. Yes.
19 MR. MISETIC: 107.
20 JUDGE SHAHABUDDEEN: I've got the drift of it
21 now. Thank you.
22 MR. MISETIC: Defence Exhibit 8 is Witness
23 D's witness statement. So they rely on evidence in the
24 judgement. And this is not some attempt by me to
25 mislead anyone. But in preparing for this, and looking
1 at the footnotes, they rely on this statement. So
2 again I leave it to you. If it's error, then it's
3 error that requires a reversal. Because they have
4 considered now within their deliberations evidence
5 that's not admissible.
6 JUDGE SHAHABUDDEEN: How --
7 MR. MISETIC: Alternatively, though --
8 JUDGE SHAHABUDDEEN: How is it -- I am trying
9 to reconcile two things. It's referred to here as
10 Exhibit D8. I assume from that, that it was in
12 MR. MISETIC: Nobody moved it into evidence.
13 And if you look at the roster of exhibits -- if you
14 look at the roster of exhibits, at least as was
15 provided to --
16 JUDGE SHAHABUDDEEN: It was not tendered in
17 evidence, but it was marked Exhibit D. Is that the
18 point you are making?
19 MR. MISETIC: Absolutely. So it is not in
20 evidence for consideration in the judgement.
21 Now, if the Appellate Chamber were to rule
22 that it is -- my point in all of this isn't to attack
23 necessarily --
24 JUDGE SHAHABUDDEEN: You wouldn't say that's
25 a technical point, would you?
1 MR. MISETIC: What I am saying is I
2 anticipated or tried to anticipate that they were going
3 to object to my reading the testimony of Witness D from
4 the statement, and so I wanted to lay the foundation
5 for why I am using this.
22 So again, I would say, Your Honours, at the
23 very least, we are owed an explanation as to how they
24 were reconciling this testimony.
25 Furthermore, we can't even start to assume
1 what the testimony was, because we don't know what
2 evidence that the Trial Chamber considered. We don't
3 know what the basis of the conclusion was, whether it
4 was trial testimony, whether it was this witness
5 statement, et cetera. We again re-submit that that is
6 a live issue and they should have considered it, and it
7 is a fair -- there is a fair and rational inference on
8 the evidence that Mr. Furundzija was not engaged in
9 asking any questions in the pantry, and therefore,
10 since that is the pivotal factual finding in the case,
11 I would ask you to reverse that finding of the Trial
13 Ultimately, if the Prosecution were right,
14 and that the Trial Chamber adhered to its own order and
15 limited the evidence to what was charged in the
16 indictment, we would have had a case as follows. And
17 it's a point that I've reiterated. The issues in the
18 case were: After Accused B had done what he had done
19 in the large room, there are allegations by Witness A
20 that she was interrogated and a knife was rubbed
21 against her by a different person, who made another
23 There is nothing in the judgement that
24 addresses that factual situation. There is no
25 discussion of whether the rubbing of a knife coupled
1 with an oral threat rises to extreme pain and suffering
2 necessary for a conviction on torture.
3 We submit that that is what those -- those
4 are what the real issues in the case were. There is no
5 answer to that question, and that is something else
6 that you must resolve now.
7 Our reading of the Tadic opinion, the first
8 opinion in which a victim -- a fire extinguisher hose
9 was placed in the mouth of a victim, and the Trial
10 Chamber found that although there were threats made
11 that the fire extinguisher was going to be discharged
12 into the mouth of the victim, the Trial Chamber there
13 came to the conclusion that it did not rise -- not only
14 did not rise to torture, but it did not rise, I
15 believe, to inhuman treatment. If my memory serves me
16 correctly, I think that's the charge that they were
18 The issues here, at least with respect to
19 that portion in paragraph 25 of the rubbing of the
20 knife, coupled with an oral threat, I don't -- or the
21 Defence submits, do not rise to extreme pain and
22 suffering as that term is defined in the first Tadic
24 So what exactly are we asking the Appellate
25 Chamber to do? We are asking you to do the following:
1 to strike the findings of the Trial Chamber that are
2 inconsistent with 25 and 26; that is, any factual
3 finding that places Furundzija in the large room prior
4 to Accused B's arrival should be stricken.
5 Any findings in the large room that
6 Mr. Furundzija questioned Witness A while -- and then
7 subsequently Accused B rubbed the knife and made an
8 oral threat, are clearly something that we were aware
9 of and can be considered in the evidence.
10 Taking the case further, it proceeds into the
11 pantry. We are asking you to come to a finding that
12 there was reasonable doubt as to whether or not
13 Mr. Furundzija was engaged in asking questions in the
14 pantry, to apply the standard that I've discussed
16 Reading this testimony, reading his witness
17 statement, which he gave two weeks or three weeks
18 before trial, there is no doubt that he is saying,
19 "Furundzija was not in the room." Given that, we
20 believe that there is a fair and rational inference in
21 the evidence of innocence, and it must be accepted on
22 that issue.
23 The fact -- again, to reiterate, in looking
24 at the two witnesses, in order to defeat that
25 testimony, we need overwhelming evidence that Witness D
1 was wrong, and we don't have that in this case. We
2 have two witnesses whose credibility was vouched for,
3 and if one witness is to be believed over the other,
4 then the Defence submits that it must be the witness
5 whose credibility was impeached by anyone, and not
6 the witness whose credibility was not impeached by the
7 Defence, and whose testimony was stricken by the Trial
8 Chamber because of its inconsistency with the
10 As a matter of law, we think Witness D's
11 testimony has to be accepted on this critical issue.
12 JUDGE VOHRAH: I just want to -- excuse me.
13 You made reference just now to the first Tadic case,
14 where you said that the Chamber made a finding that it
15 was not inhuman treatment or torture to place the water
16 hose in the mouth of the victim. I may be wrong, but I
17 recall in that particular case that finding was made on
18 the basis that the victim was already dead.
19 MR. MISETIC: That's not consistent with my
20 recollection, but I will be glad to go back to it and
21 check it for you.
22 JUDGE NIETO-NAVIA: For the transcript, it
23 was just Judge Vohrah who was asking the question, not
25 MR. MISETIC: We ask you, Your Honours --
1 sorry, and then finally to address --
2 JUDGE SHAHABUDDEEN: Mr. Misetic, I have the
3 impression that you're winding up now.
4 MR. MISETIC: Yes.
5 JUDGE SHAHABUDDEEN: Would another five
6 minutes be satisfactory to you, because one of our
7 colleagues has to sit elsewhere. Thank you.
8 MR. MISETIC: I'm well aware of it, and I
9 want to stay in your good graces.
10 In summation, I've already outlined what we
11 are asking you to do. At the very least, if you cannot
12 acquit him, then we are asking for a new trial, a trial
13 in which the facts of the case will be limited to the
14 allegations in 25 and 26, and that Mr. Furundzija be
15 given an opportunity to mount a defence as to what
16 happened in the large room.
17 We want fairness, we want a fair chance to
18 defend Mr. Furundzija, and we don't believe we were
19 given that fair chance, given all that transpired, both
20 in the pre-trial stage and through those June 12 and
21 June 15 hearings. And it cannot be said that we were
22 put on notice that the large room was at issue in the
24 The very least level of assistance, and again
25 it's one I hesitate to make, but I must, is that if you
1 are going to affirm all of this and all of these
2 issues, then let this be considered in mitigation of
3 sentence. And much of what the Prosecution set out in
4 its sentencing positions we agree with; however, there
5 are certain aspects of it that we disagree with,
6 including that, (A), the quality of the evidence in the
7 case cannot be considered, at least in the jurisdiction
8 that I practice in, the quality of the evidence is
9 definitely something to be considered by the trier of
10 fact in exercising its discretion on sentence.
11 Second, again I reiterate Mr. Furundzija's
12 relatively low level as parallel to the situation in
13 the Tadic case on sentencing, and we ask for your
14 assistance in reducing the harshness of this verdict.
15 And again that is my extreme last-resort argument on
17 I started off the day by telling you that you
18 are the guardians of a right to a fair trial, and I
19 started off by telling you that you have been charged
20 to guard those provisions in the International Covenant
21 and the European Convention and the Statute. We want a
22 fair opportunity, and Mr. Furundzija has no one else to
23 turn to but the five of you.
24 We never were able to mount a defence on the
25 issues that ultimately were seriously impacting upon
1 the question of his guilt or innocence, and we did not
2 get a resolution of our primary defence, which was
3 Witness D's testimony; not so much as a paragraph
4 saying: "Witness D says this, Witness A says that, we
5 choose Witness A's version for the following reasons.
6 And, Mr. Furundzija, if you disagree with how we have
7 applied the standard of proof, you can take it to the
8 Appeals Chamber." We don't even have that opportunity,
9 because we don't know what the findings or what the
10 reasoning was behind the decision not to consider
11 Witness D's testimony.
12 At the end of the day, if he is going to be
13 convicted, we want a chance to defend him. When we try
14 individuals in criminal cases, whether it's at the
15 international level, or in Chicago, where I am from,
16 but in particular in cases here involving war crimes,
17 and where we allow the accused due process and a fair
18 opportunity to defend himself, then regardless of the
19 outcome, but even if the accused is convicted, we can
20 all feel good that we have allowed the rule of law,
21 ultimately, to condemn the defendant's conduct.
22 However, where we convict a defendant and we
23 did not afford him a fair opportunity to defend
24 himself, then we have perpetuated injustice with more
25 injustice. And we have condemned not the defendant,
1 but ourselves to deal with the consequences. We put
2 ourselves in your hands, and Mr. Furundzija puts
3 himself in your hands to ensure that he gets a fair
4 opportunity to defend himself.
5 And we thank you very much.
6 JUDGE SHAHABUDDEEN: Thank you, Mr. Misetic,
7 for your assistance, which we welcome.
8 Perhaps there is one word which I may use in
9 reply, and that is, if you felt it necessary, it was
10 well within your rights to remind the Bench of the
11 solemnity of its functions under the Statute to ensure
12 a fair trial.
13 All I would like to say to you, and this is
14 by way of reassurance, is that the Bench is well aware
15 of that responsibility, and the Bench hopes to
16 [inaudible] it.
17 So with those words, I would thank both sides
18 for their assistance, and I would bring the proceedings
19 today to an end.
20 Yes, Mr. Farrell.
21 MR. FARRELL: Sorry, Your Honour. I know the
22 time frame. Just a couple of matters.
23 As my friend has not withdrawn his claim that
24 he raised in his appeal brief, the improper conviction
25 of the appellant on Witness D, and our position is that
1 it was -- it's not before you. If you feel inclined
2 that it is before you, of course we reserve our right
3 to file a response to that issue, as it was not in his
4 appeal brief.
5 If that's the position taken. I just wanted
6 to put it on the record.
7 JUDGE SHAHABUDDEEN: If necessary, I will
8 take counsel with my colleagues about the necessity of
9 issuing a Scheduling Order on that point. If
10 necessary. But I doubt it.
11 So, with those words, I bring the proceedings
12 to an end. I thank both sides for their very fulsome
13 and kindly assistance, which we welcome and value.
14 Thank you.
15 --- Adjourned at 5 p.m., sine die.