Tribunal Criminal Tribunal for the Former Yugoslavia

Page 551

1 Monday, 23 July 2001

2 [Appeals Hearing]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 9.30 a.m.

6 JUDGE WALD: Will the registrar please call the case.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-95-16-A, the Prosecutor versus Zoran Kupreskic, Mirjan Kupreskic,

9 Vlatko Kupreskic, Drago Josipovic, and Vladimir Santic.

10 JUDGE WALD: Thank you. Good morning, counsel; good morning to

11 the parties; good morning to the technical staff.

12 We're sorry that we got started late today, but you can tell by

13 the temperature in the room what is the cause. The air conditioning is

14 being worked on, and I'm assured that in a very few minutes it will cool

15 down considerably. But we do wish to go ahead and get started.

16 In that respect, let me ask for the appearances for the record.

17 Go ahead, Mr. Yapa.

18 MR. YAPA: May it please Your Honours, I am Upawansa Yapa,

19 appearing for the Prosecution with Mr. Anthony Carmona, Mr. Fabricio

20 Guariglia, Ms. Sonja Boelaert-Suominen, and Ms. Norul Rashid. I thank

21 Your Honours.

22 JUDGE WALD: Thank you. We'll have the appearances for the

23 Defence, beginning with Mr. Radovic.

24 MR. RADOVIC: [Interpretation] I am Ranko Radovic, Defence counsel

25 for Zoran Kupreskic.

Page 552

1 MS. SLOKOVIC-GLUMAC: [Interpretation] Good morning, Your Honours.

2 My name is Jadranka Slokovic-Glumac. I am the Defence counsel of Mirjan

3 Kupreskic.

4 MR. ABELL: Good morning, Your Honours. Anthony Abell, together

5 with my co-counsel John Livingston, and we both appear for the appellant

6 Vlatko Kupreskic.

7 MR. PAVKOVIC: [Interpretation] Good morning, Your Honours. My

8 name is Petar Pavkovic, and I am Defence counsel for Vladimir Santic.

9 MR. CLEGG: William Clegg, together with Valerie Charbit, for the

10 defendant Drago Josipovic.

11 Before we proceed further, could I ask whether an interpreter that

12 we have instructed for the proceedings can sit in court so it will enable

13 us, if necessary, to communicate with the defendant. She is to be shared

14 my Mr. Abell and myself and is currently sitting in the public gallery.

15 JUDGE WALD: Yes, that's fine, Mr. Clegg.

16 Mr. Clegg, while you're on your feet, I have been informed that

17 you had some difficulties in getting your book of authorities through on

18 the faxing. We're sorry about that, but I am informed that it has now

19 been completed, it has been filed, and it will be made available in

20 completion at one of the first breaks. I do want to assure you that it

21 will be, as with all papers, carefully read by all members of the Court,

22 et cetera. So I think it should not delay us any more in terms of the

23 oral argument.

24 MR. CLEGG: I'm grateful.

25 JUDGE WALD: Okay. We will now begin a very tight schedule for

Page 553












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Page 554

1 the next three days, which unfortunately is already a little bit off

2 because of the technical difficulties here. But I do want to just very

3 briefly go over the time allotments just for today so we're all aware of

4 them because of the slight delay in getting started.

5 Mr. Clegg is going to speak as to the standard of review jointly

6 for the defendants, and he's going to have, from the time he begins, an

7 hour and ten minutes. Mr. Clegg and Ms. Slokovic-Glumac will speak for 30

8 minutes, Mr. Clegg if he's first and Ms. Glumac for 25, on the vagueness

9 of the indictment. And in between then there will be a 30-minute break

10 which is necessary for the translators.

11 When that's done, Mr. Abell and Mr. Pavkovic will talk about joint

12 issues relating to sentencing for 40 minutes, and the Prosecution will

13 have 15 minutes for its appeal against the conviction and sentence. We

14 had originally scheduled a lunch break of an hour and 30 minutes, and I

15 hope we can adhere to that. And in the afternoon, we'll have Mr. Vlatko

16 Kupreskic's appeal for an hour and 25 minutes, a break, and we will have

17 the first portion of Mr. Mirjan Kupreskic's appeal.

18 This may take us somewhat over the 5.00 period, but I think if

19 possible we'd try to stick to that schedule so we'll be through today,

20 that is, if the air conditioning doesn't finish us before anything else

21 happens.

22 Two very brief remarks and then I'll let Mr. Clegg get started.

23 One, I do want to mention that we have had, both in the trial record and

24 in the 115 proceedings of which you've all been a part, we have had some

25 witnesses who have appeared under protective conditions. The familiar

Page 555

1 ones are AT, ADA, ADB, CA, APA, et cetera. I'm sure I don't need to

2 remind you that we have to continue to protect the identity of the

3 witnesses by using the pseudonyms, and if you find that it's necessary to

4 your argument to deal in any other factors that might identify the

5 witness, please ask us and we will go into private session for that

6 portion.

7 This is a bit of a tricky business to figure out exactly, in some

8 cases, what has been in the public record already, particularly with

9 reference to Witness AT in the Kordic decision, and what still is under

10 protective conditions. So if you have any questions, we will attempt to

11 accommodate that.

12 The last point I want to make is that because of the tightness of

13 the schedule, we have very brief periods for Judges' questioning. So I

14 thought it might be useful to take two minutes, as it were, to apprise the

15 counsel of some of the questions which we hope they will cover in their

16 argument. That may expedite the questioning period afterwards.

17 These will be very brief, but in the case of Mr. Clegg and

18 Ms. Glumac who are going to talk about vagueness, alleged vagueness of

19 indictments, I think that it would be useful to us for them, as I'm sure

20 they would anyway, to allude to the differences between the requirement

21 for material facts in the indictment and the question of what is evidence

22 of those facts which, as we know from past jurisprudence, may not be in

23 the indictment.

24 Also, and this goes for the Prosecution as well on this point,

25 how, if at all, particular defendants were prejudiced by the vagueness. I

Page 556

1 think I'll just -- since those are the first two presentations, I'll leave

2 it at that. And as various other appellants get up to make their

3 argument, if they are one of two things that we think are particularly

4 relevant, I will mention those. But at that point, I won't delay any

5 further and Mr. Clegg, I think the floor is yours. I hope it will cool

6 off during the -- Mr. Yapa, you have something.

7 MR. YAPA: Just one small matter, Your Honour.


9 MR. YAPA: I do not want to delay the proceedings any

10 way. I've spoken to my learned friend who is appearing for Mr. Drago

11 Josipovic. In his brief in reply to the Prosecution appeal brief, he has

12 made reference to certain new authorities. I think that they are the ones

13 that Your Honour referred to this morning. We intend, in our submissions,

14 to make reference to certain other authorities. I've spoken to my

15 friend. I don't think my friend had any serious objections. We have

16 provided the copies to my learned friend, and I just wanted to make

17 reference to that at this stage.

18 JUDGE WALD: Thank you.

19 MR. CLEGG: I certainly don't have any objection.

20 JUDGE WALD: I'm sorry, Mr. Clegg, I think Ms. Glumac -- what is

21 it?

22 MS. SLOKOVIC-GLUMAC: [Interpretation] Your Honour, I wish to ask

23 the Trial Chamber to -- the Appeals Chamber to allow us a small change in

24 the schedule because the respondent brief was very shorter, I worked out a

25 response on behalf of myself and my colleague, Mr. Radovic, and he intends

Page 557

1 to cover all the essential areas of the grounds for appeal which are set

2 out in the appeal.

3 So in view of our agreement, it would be better for us if

4 Mr. Radovic were to be the first to set out his appeal and then I would

5 present the grounds for the second appellant Kupreskic, if you will allow

6 this.

7 JUDGE WALD: Yes, we will allow it. Now, go ahead, Mr. Clegg.

8 MR. CLEGG: First, I've certainly no objection to the Prosecutor

9 referring the Court to the bundle of authorities served on me this

10 morning, but I would seek to have slightly more time on Wednesday in order

11 to encapsulate any submissions that I might have on those because I

12 obviously won't have an opportunity to read them until this evening. That

13 is, if I may say so, the bad news. But the good news is as the Court has

14 just been -- had indicated to them. I will not be addressing the Court on

15 the vagueness of the indictment.

16 At the Status Hearing, which I was unable to attend, we indicated

17 that we may seek to address the Court on that subject rather than that we

18 will, and as matters have developed, I will not be advancing submissions

19 on that ground and, as I understand it, Mr. Radovic will be addressing the

20 Court on behalf of all appellants in relation to that. Certainly, we

21 would not wish to add to what he is going to submit so it may well be that

22 some time will be saved in relation to that aspect of the case which I

23 anticipate will not come as a disappointment to the Court.

24 JUDGE WALD: Just to make sure I understand you, and I'll reaffirm

25 so that the -- in total, 55 minutes that we had put on the original

Page 558

1 schedule for the vagueness of the indictment to be divided between you and

2 Ms. Glumac, Mr. Radovic will now take part of that time to address that

3 major subject and neither you nor Ms. Glumac will be addressing that; is

4 that correct?

5 MR. CLEGG: I think Ms. Glumac might wish to add a few words at

6 the end within that time frame.

7 JUDGE WALD: Well, all right. Thank you for informing.

8 Ms. Glumac -- I'm sorry, Mr. Radovic, will 30 minutes be

9 sufficient for you on vagueness of the indictment?

10 MR. RADOVIC: [Interpretation] Yes, even less.

11 JUDGE WALD: Wonderful. Thank you very much.

12 Now, Mr. Clegg, no more interruptions, please.

13 MR. CLEGG: The question, the important question that I need to

14 address the Court on is the standard of review when evidence is admitted

15 before the Appeal Chamber under Rule 115. It's important, we submit, to

16 reflect, that no criminal justice system can be perfect, and as long as

17 judges and jurors are human, human error will inevitably result in the

18 innocent being convicted of crimes that they have not committed.

19 The various domestic criminal jurisdictions of the world have

20 developed rules of procedure and evidence that seek to minimise the

21 chances of a wrongful conviction, and it's that jurisprudence that has

22 been uplifted into the scheme of international law as reflected in the

23 Rules and Procedure of this Tribunal.

24 Every criminal justice system is fallible, and this Tribunal is no

25 exception. The courts of England, the United States of America, and

Page 559

1 France are but three examples of countries where there have been

2 celebrated cases where the innocent have been wrongly convicted and the

3 protection afforded to an accused by the burden and standard of proof and

4 the exclusionary rules of evidence have proved no safeguard.

5 Inevitably, most criminal justice systems get it right most of the

6 time. That involves necessarily many guilty people being acquitted. That

7 is the price that every criminal justice system pays in order to minimise

8 the risk of injustice to the innocent.

9 The Statute of this Tribunal, in Article 25, provides in

10 subparagraph (B) the power to reverse a decision of the Trial Chamber

11 where, and I quote, "an error of fact has occasioned a miscarriage of

12 justice." There is no definition of the words "miscarriage of justice."

13 Perhaps no exhaustive definition is desirable. It is easy to say that a

14 wrongful conviction of an innocent man is a miscarriage of justice. No

15 one would complain about the inclusion of such an example within the

16 parameters of those words. But the term "miscarriage of justice" is much

17 wider than that. Examples: The conviction of a guilty man on perjured

18 evidence can be but another example of a miscarriage of justice.

19 When the Appeal Chamber admits evidence under Rule 115, it must do

20 so, we submit, against the background of the burden and standard of proof

21 and rules of exclusionary evidence that exist at trial. And when

22 considering whether there has been a miscarriage of justice, if I could

23 perhaps be forgiven by quoting from a common law jurist who, in giving the

24 judgement of a court, in fact, in the court of appeal in England, said,

25 and I just adapt the end to fit the facts of this case, when the appellant

Page 560

1 court said:

2 "This court is not concerned with guilt or innocence of

3 the appellants but only with the safety of their

4 convictions. This may, at first sight, appear an

5 unsatisfactory state of affairs until it is remembered

6 that the integrity of the criminal process is the most

7 important consideration for courts which have to hear

8 appeals against conviction. Both the innocent and the

9 guilty are entitled to fair trials. If the trial process

10 is not fair, if it is distorted by deceit or by material

11 breaches of the rules of evidence or procedure, then the

12 liberties of all are threatened. This court is a court

13 of review. The court reviews the trial process to equip

14 itself to answer the question ..."

15 And then adapting the words to fit those of the Tribunal:

16 "Do we think there has been a miscarriage of justice? The

17 court is not a court of trial or retrial."

18 In New Zealand, in a case that's contained in my currently absent

19 book of authorities, Mr. Justice Gault, in the case of the Queen and

20 Dougherty, described a miscarriage of justice in a way that is consistent

21 with the submissions advanced by the appellants in this appeal. He said:

22 "The matter now to be determined is whether the evidence

23 now available establishes that there was a miscarriage of

24 justice."

25 Those, of course, are the words of Article 25.

Page 561

1 "The appropriate approach," he says, "is to consider

2 whether, had the evidence been available at trial, its

3 cogency is such that it might reasonably have led the

4 jury to a different verdict."

5 And it's against that background that I invite this Appeal Chamber

6 to consider the appropriate standard of review, where evidence has been

7 admitted under Rule 115.

8 First, as this Chamber is well aware, the appellant would have

9 already satisfied the onerous test set before additional evidence is

10 admitted, first annunciated by the Appeal Chamber in the case of Tadic and

11 followed in a number of cases since.

12 It's no part of my submission today to seek to criticise or go

13 behind that high test. But it does mean that when evidence has been

14 admitted by the Appeals Chamber, that high test of admissibility will have

15 been crossed. And having satisfied that test, it is our submission that

16 when applying the appropriate standard to the evidence that the Chamber

17 has admitted, then justice can only be done if the Appeal Chamber asks

18 itself the question posed in paragraph 232 of the appellant's brief;

19 namely, "Might this evidence or could this evidence have resulted in the

20 Trial Chamber arriving at a different verdict?"

21 All acknowledge that there will be cases that can be easily

22 disposed of when fresh evidence has been admitted. Few in number, but

23 there will be or may be cases where the additional evidence demonstrates

24 beyond doubt that the convicted person is innocent. It is easy to reflect

25 upon what such evidence could be; perhaps the discovery of crucial DNA

Page 562

1 evidence which was not available hitherto that demonstrates he could not

2 have been the person alleged to have been at the crime scene. There are

3 obviously other examples that can be imagined.

4 In such a case, the parties agree that this Court could

5 comfortably conclude that there had been a miscarriage of justice and that

6 no reasonable tribunal could convict, in which case the appropriate course

7 of action would be to quash the conviction and direct a verdict of not

8 guilty.

9 There could be other cases at the other end of the spectrum where

10 the weighted impact of the additional evidence when seen against the

11 factual matrix at trial is such that no reasonable tribunal could have

12 been influenced by the additional evidence, in which case all concede that

13 the Appeal Chamber, despite having admitted the evidence, can nonetheless

14 reject the appeal against conviction and uphold the verdict of the Trial

15 Chamber.

16 There is, of course, in the middle a substantial body of cases

17 where the evidence would have the capacity to materially influence a

18 decision of the Trial Chamber. What is the test to be applied there?

19 There are three possible tests that could be applied.

20 One is the Appeal Chamber could ask itself the question: Does the

21 additional evidence demonstrate beyond reasonable doubt that the Trial

22 Chamber would have decided the case differently? In other words, putting

23 the burden on the appellant to seek to demonstrate to the criminal

24 standard that there would have been a difference. As I understand it, the

25 respondent does not suggest so onerous a test in this case.

Page 563

1 The remaining two reflect the difference between the parties

2 here. One could be described as putting the burden on the appellant to

3 demonstrate on the balance of probabilities so that it is more likely than

4 not that the evidence admitted would have had an impact on verdict. And

5 the second, the one that is advanced by me on behalf of the appellants, is

6 that the evidence might or could have caused a reasonable tribunal of

7 fact, or in this case a reasonable trial chamber, to have come to a

8 different verdict.

9 The difference between the words "would" and "could" is, we

10 submit, significant. Both are in the past tense of the words "will" and

11 "can." One imposes, we submit, an unreasonably high burden on an

12 accused; the other is reflective of the same standard of proof that is to

13 be found at Trial Chamber.

14 I have sought to illustrate this by way of a homely example in the

15 course of my skeleton. It is easy to imagine a case where there might be

16 four eyewitnesses, all saying that the defendant was the person who killed

17 a particular victim. And in the absence of any other evidence, apart from

18 that of the accused himself who claims he was elsewhere, one can easily

19 imagine how any reasonable trial chamber would conclude that the case

20 against the accused was proved, and return a verdict of guilty.

21 Thereafter, if we imagine that another witness is discovered who,

22 through no fault of anybody, had not been traced at trial, who had a far

23 better view of the crime than any of the other four, who was perhaps the

24 teacher at the local school who had taught all, and she said, "Well, it

25 wasn't the defendant, it was his brother," who all agree looked very much

Page 564

1 like him, now, in such a simple case as that, the appellant would never be

2 able to satisfy an Appeal Chamber that that evidence would have resulted

3 in a different verdict.

4 My example proceeds upon the basis that all witnesses are accepted

5 as being honest and either the four are mistaken or the one is mistaken.

6 But in that example, the appellant would be unable to discharge the high

7 burden described by them in their brief as onerous as put forward by the

8 Prosecutor and would inevitably lose his appeal against conviction.

9 In our submission, that would result in a miscarriage of justice

10 certainly as defined by Mr. Justice Gault in the case that I’ve quoted

11 from in New Zealand and ought, we submit, in any fair reflection of any

12 criminal jurisprudence, result in a miscarriage of justice. Because in

13 the example I have given, it would be perfectly possible for a reasonable

14 tribunal of fact to have said in the light of this additional evidence,

15 "Well, that raises a reasonable doubt in our mind whereby no means the

16 defendant is by no means guilty, but he might be not guilty, and we can't

17 rule it out as sensible possibility. Therefore our verdict must be one of

18 not guilty remaining loyal of the burden of standard of proof as exists in

19 a criminal trial before the Trial Chamber."

20 Hence, in my example, the appellant would be found not guilty if

21 that evidence as available at trial, but he could not have a conviction

22 overturned in the absence of that evidence by an Appeal Chamber if the

23 same evidence were called, and that must be a route, we submit, to

24 injustice, particularly if one reflects on the circumstances in which the

25 evidence was not called at trial.

Page 565

1 One of the routes to admissibility before this Chamber is that due

2 diligence would not have discovered the evidence at trial so the appellant

3 cannot be at fault for the Trial Chamber being kept in ignorance of this

4 important piece of evidence. Indeed, hypothetically, the absence of the

5 witness could be due to the Prosecutor failing to disclose her existence

6 to the Court or the Defence. Such disclosure, hypothetically, being

7 dishonest as well as innocent. One only has to reflect upon that as a

8 possibility in order, we submit, to demonstrate why the test that we seek

9 to urge the Court to apply to fresh evidence, when it is admitted, must be

10 the right test and the fair test.

11 It proceeds upon the basis as amplified by the Appeal Chamber in

12 the course of the appeal of Tadic that reasonable people can come to

13 different conclusions on the same facts. It is inherent in any system of

14 justice that a tribunal of fact, that two different tribunals of fact

15 hearing these same witnesses can reasonably come to a different

16 conclusion. It is inevitable that conclusions in the criminal process

17 will be dependent upon the view, an individual takes of a witness, the

18 assessment of whether the witness is telling the truth or not, and views

19 will inevitably vary, one judge from another. One is only to reflect not

20 so much in this jurisdiction but in domestic jurisdictions where there are

21 no juries how one can have dissenting judgements and do have dissenting

22 judgements when guilt is being determined to demonstrate that even

23 experienced judges can come to different views of the facts on the same

24 evidence.

25 Once one factors that into the assessment of additional evidence,

Page 566

1 it demonstrates, in our submission, how dangerous it is for the Appeal

2 Chamber to slip into the task of acting as a court of review of the Trial

3 Chamber's assessment of evidence, and even more dangerous for them to slip

4 into the task of deciding what a Trial Chamber would do if they were to

5 hear the additional evidence.

6 On analysis, all that an Appeal Chamber can safely do, save in a

7 clear case such as the two examples at either end of the spectrum about

8 which there'd been no dispute; absent that, all the appeal Chamber can do

9 is to say that a reasonable trier of fact or a reasonable trial chamber

10 might or could have come to a different verdict had this evidence been

11 placed before them. And we submit that that is the test that ought to be

12 applied. To say "would" is to place an almost impossible burden on an

13 appellant.

14 First, the Appeal Chamber can't assess the witnesses. They don't

15 hear the additional evidence. They don't hear the trial evidence. How on

16 earth can the appeal Chamber, I ask rhetorically, actually assess whether

17 the evidence would result in a different verdict without having seen or

18 heard any of the witnesses?

19 True, you may know what the conclusion of the Trial Chamber was

20 who heard the uncontradicted evidence of a witness at trial, untested by

21 the material disclosed by the route of the additional evidence here, but

22 you do not know what the witness at trial would have said if confronted

23 with the account disclosed in the additional evidence, nor how the witness

24 would react to it when cross-examined; let alone what impact that would

25 have on the Trial Chamber being able to sit, see, and observe the

Page 567

1 demeanour of the witness when so pressed; let alone can you say what the

2 Trial Chamber's view would be of the additional evidence that even you

3 have not heard from the witness themselves but have only seen in written

4 form; let alone how that witness would perform in cross-examination.

5 It is not beyond the bounds of the experience of all concerned in

6 criminal justice that sometimes witnesses, when cross-examined, end up

7 enhanced, so far as the Tribunal is concerned, rather than destroyed.

8 Both can be the effect of robust cross-examination. And it is, we submit,

9 a route to injustice to seek to resolve evidence without having it

10 properly tested in an adversarial system.

11 For one better or worse these tribunals operate under an

12 adversarial system and it follows that important evidence must be tested

13 under an adversarial system. So we submit that there are powerful reasons

14 in logic why the lower threshold of "could" or "might" should be the

15 standard adopted by the Appeal Chamber when considering evidence submitted

16 under Rule 115.

17 Such a test is entirely consistent with the Rules of the

18 Tribunal. There is, of course, no clear guidance in Rule 115 as to what

19 the -- where the burden lies and what the standard is for additional

20 evidence. The Rules insofar as the impact on the Trial Chamber of course

21 make it clear that, at that stage, the "would" or "might" test is applied

22 effectively to a Trial Chamber when assessing evidence at first instance.

23 We submit that there is no reason in logic why the same test ought

24 not to be applied at the appellate stage, particularly where all agree

25 that it was no fault of the appellant that the evidence was not called

Page 568

1 earlier. And being realistic, when one looks at the background of the

2 circumstances in which these trials take place, inevitably, the collation

3 of evidence is going to be a difficult task in many cases.

4 Now, we submit that the test that we have advanced is one that is

5 consistent with courts sitting in common law jurisdictions throughout the

6 world. The civil law jurisdictions are, perhaps, not so readily

7 comparable to the task that the Appeal Chamber is undertaking here. In

8 many civil jurisdictions, following an ordinary criminal trial, there is a

9 right to a fresh trial de novo. This does not, of course, exist in a

10 common law jurisdiction and, therefore, one is considering a very

11 different approach to a verdict from the -- that which you would have in,

12 for example, France or Italy.

13 Now, I accept, just as the previous decisions of the Appeal

14 Chamber here, tend to use the words "would" or "could" interchangeably and

15 as a consequence, really, neither side seeks to gain support from previous

16 observations of the Trial Chamber because you can take your choice of a

17 number of phrases that either support your submission or that of the

18 respondent. So in domestic jurisdictions, it is right to say that there

19 are many inconsistent uses of the words "would" and "could" in some

20 countries, particularly United States of America.

21 In England, the law is perfectly clear and there is no doubt at

22 all that the position of the English common law is that the test advanced

23 by the appellant here is the current state and, indeed, has been the state

24 of the English common law for many years. It was most clearly set out in

25 a celebrated decision of the House of Lords now many years ago where three

Page 569

1 of their lordships, Viscount Dilhouse, Lord Cross, and Lord Kilbrandon all

2 set out in the clearest possible terms the test that is currently being

3 advanced by the appellant today. Their quotations are set out on page 12

4 of the skeleton. I won't read them out again now. The Court will have

5 them well in mind.

6 That authority is today still regarded as the leading authority.

7 It was followed in the celebrated case of the Queen and Clegg - no

8 relation - in Northern Ireland, a celebrated case of the British soldier

9 charged with the murder of a young girl when he was on patrol in Belfast.

10 That same test applied by the Lord Chief Justice or Chief Justice Carswell

11 there, and followed again in some of the more celebrated miscarriage of

12 justice cases in England, all of the authorities of which are contained,

13 in fact, in the first book of authorities that I know the Court has had

14 for some time and is behind the earlier skeleton that I submitted.

15 So it is only persuasive; of course, I acknowledge, in no sense

16 binding on this Appeal Chamber. But there can be no doubt, and I think

17 there was initially some doubt in the respondent's mind as to the effect

18 of the English common law. I hope now there is no doubt. The English

19 common law is clear.

20 I have, in the missing book of authorities, identified a number of

21 American authorities that are consistent with the test that I propose

22 now. I conceded in the skeleton that there were other cases that would be

23 consistent with the appellant's test and others that somehow seemed to

24 fall in the middle. You can choose your state and choose your court and

25 choose your test. It's perhaps a cynical way of looking at the

Page 570

1 authorities. I say this with great diffidence to the jurisdiction that I

2 know the President comes from.

3 But the fact remains that -- and I see today that there's a case

4 in Massachusetts that clearly seems to support -- not Massachusetts,

5 Maine, which was served today that supports the Prosecutor's test. And I

6 acknowledge that there are others, in fact, that he has not, in fact,

7 served but can be found in the encyclopaedia that I have copied that will

8 also support his test, and there are others that support my test. What

9 assistance the Court gets from such a conflicting view of authorities is a

10 matter for the Court to reflect on.

11 The, dare I say, more traditional common law jurisdictions,

12 Canada, South Africa, Australia, New Zealand, we submit, all put their

13 weight behind the "could" or "might" test in various ways. I have copied

14 the two leading authorities from Canada in the book that's being copied as

15 we speak now. Each of them speak of a test, and I just quote from the

16 leading case of Palmer:

17 "[The additional evidence] must be such that if believed

18 it could reasonably, when taken with the other evidence

19 adduced at trial, be expected to have affected the

20 result."

21 And quoting the approval from the earlier case of Martin, these

22 are the crucial words:

23 "It is enough," the additional evidence, "in my view, if

24 the proposed evidence is of sufficient strength that it

25 might reasonably affect the verdict of a jury."

Page 571

1 But I certainly don't propose any lower test. No one's suggesting

2 that if it was unreasonable for the trier of fact to be affected by it,

3 the appeal ought to succeed. But "might reasonably affect," that falls

4 far short of the Prosecution's words "would affect." And it highlights

5 the difference, "might reasonably" or "would."

6 Australia, same test, differently worded:

7 "... would have produced a significant possibility that

8 the verdict would have been one of acquittal."

9 Different words mean the same thing.

10 New Zealand:

11 "... might reasonably have led the jury to return

12 different verdicts."

13 The leading case of Dougherty.

14 South Africa:

15 Satisfy the tests. I've copied the leading case, Ndueni

16 and others.

17 "... prima facie likelihood of the truth of the evidence."

18 "... should be materially relevant to the outcome of the

19 trial."

20 Not "would affect the outcome of the trial." Just materially

21 relevant to it.

22 So if I may summarise the effect of the jurisprudence, the common

23 law of England and what was really the old Commonwealth countries have all

24 adopted the test propounded by the appellant for the admission of

25 additional evidence. There is, we submit, conflicting authorities in the

Page 572

1 United States. None of this is anything more than persuasive.

2 But we would invite the Court to reflect upon the fact that the

3 common law, which is the home of the adversarial system, which is the

4 system that is being operated in this Tribunal, is a highly persuasive --

5 is highly persuasive jurisprudence when one is considering how to reflect

6 in the Appellate Chamber the same protection against wrongful conviction

7 that must lie at the heart of all criminal justice systems. At the moment

8 you depart from the word "could" or "might" and impose that higher

9 threshold on an appellant of demonstrating that the additional evidence

10 would have resulted in a different verdict, you are opening the door to

11 Appellate Chambers upholding convictions when Trial Chambers, had they had

12 the advantage of hearing the same evidence that the Appeal Chamber had

13 considered, may not and inevitably in some cases would not have

14 convicted. And yet if the respondent's test is to be preferred, those

15 individuals will remain as convicted persons before this Appeal Chamber.

16 In our submission, that would result in a miscarriage of justice

17 as defined -- not defined, as expressed in Article 25 of the Statute, a

18 miscarriage of justice being a conviction recorded against an accused

19 person when the evidence is such that the Trial Chamber might not have

20 convicted. That is, in parenthesis, exactly the test that was annunciated

21 in Stafford and Luvaglio in the House of Lords in England, and in the

22 Supreme Court of New Zealand in the quotation I gave from Mr. Justice

23 Gault.

24 I pause deliberately at this stage of my address to invite whether

25 there are any questions on this particular aspect before I move to

Page 573

1 consider the question of sentence that I am about to give quite briefly.

2 JUDGE WALD: Let me inquire of my colleagues. Do we have any

3 questions for Mr. Clegg?

4 I have one, Mr. Clegg. If the "could" or "might" test that you

5 espouse is adopted, would it not be the logical sequence of that that one

6 would invariably remit the case for a new trial to see if the Trial

7 Chamber actually -- what it actually did? Or are you suggesting that if

8 the Appellate Court uses a "might" or "could" test, that if it finds that

9 test satisfied, it will reverse the conviction?

10 MR. CLEGG: Normally, you would remit for the Trial Chamber to

11 reconsider. Almost inevitably there would be a retrial in light of the

12 new evidence.

13 JUDGE WALD: All right. That's basically what I wanted to find

14 out from you.

15 MR. CLEGG: Yes.

16 JUDGE WALD: Thank you, Mr. Clegg. I think you can proceed with

17 the next aspect of your presentation.

18 MR. CLEGG: I'm reminded by Mr. Livingston, of course, the Appeals

19 Chamber does have the power to remit evidence.

20 JUDGE WALD: I understand.

21 MR. CLEGG: Can I turn, then, to consider the question of

22 sentence.

23 The standard of review has already been the subject of a number of

24 decisions by the Appeals Chamber, and as early in the jurisprudence of the

25 Court in the first appeal Tadic, the Appeal Chamber held that it would not

Page 574

1 intervene in the exercise of the Trial Chamber's discretion with regard to

2 sentence unless there was "a discernible error." And that test has been

3 followed since then in a number of cases.

4 The effect of that, in practice, has been that those seeking to

5 appeal a sentence have sought to try to identify a particular discernible

6 error in the reasoning of the Trial Chamber such as, for example, the

7 failure to take into account local Yugoslav law or some other factor that

8 is identified in either the Statute or the Rules as a criteria that the

9 Trial Chamber ought to take into account when passing sentence. In the

10 absence of being able to satisfy the Appeal Chamber that there is any

11 error in relation to the Trial Chamber's approach to that issue, then the

12 appeal has failed.

13 In my submission, that's perhaps a rather onerous way of

14 approaching a question of an appeal against sentence. The passing of a

15 sentence in a criminal context is a reflection of the interaction of a

16 large number of different features that combine together to produce the

17 sentence, and the setting of the sentence will necessarily involve the

18 exercise of judgement.

19 By definition, there can be no such thing as the right sentence,

20 and different judges, both acting reasonably, can properly arrive at a

21 different sentence, one from the other. Indeed, one is only to reflect

22 upon exercises that have been conducted of different judges being

23 presented with the facts of a case in isolation, one from the other, to

24 see where a judge has a wide discretion, how the individual sentences of

25 judges practising in the same jurisdiction can sometimes vary

Page 575

1 considerably.

2 There's nothing wrong in different judges passing different

3 sentences on the same facts. It's inevitable, as long as sentencing is

4 left to the trial judge's discretion. And it's no function of an Appeal

5 Chamber to adjust a reasonable or just sentence to one albeit lower that

6 they would have passed if sitting as members of a Trial Chamber. There

7 ought to be, and I concede, a higher threshold than that. It's no

8 function of this Court just as it won't tinker with a sentence because you

9 think you might have passed one that would have been slightly lower.

10 However, the sentences ought to be the subject of review by this

11 Appeal Chamber. If they are either capricious or perhaps more likely

12 excessive and, in principle, a sentence may be thought to be excessive if

13 it is not of reasonable proportion with a line of sentences passed in

14 similar circumstances for the same offences. And that was the approach of

15 the Appeal Chamber in the recent decision of Jelisic.

16 The importance of that principle is that it opens the door to a

17 fair review of an excessive sentence not by the appellant seeking to

18 identify a discernible error, but by demonstrating that when looked at the

19 case in the round and putting all the factors into account, the sentence

20 is out of reasonable proportion with the line of sentences passed in

21 similar circumstances for the same offences.

22 It is my submission that the number of cases that have now passed

23 through both the Trial Chamber and the Appellate Chamber in this Tribunal,

24 that one is able now to discern a range of sentences or tariff, whatever

25 word one prefers, and can identify, in an appropriate case, an excessive

Page 576

1 sentence by a comparable exercise with other sentences passed in other

2 cases. It is, in many ways, the fairer approach when you have built up a

3 history of sentencing. It must be fundamentally fair for people who have

4 committed like crimes in like circumstances to receive like sentences.

5 Of course, when the Tribunal first began sitting, there was no

6 yardstick, and one was sentencing very much in a vacuum relying upon the

7 experience of judges to set a sentencing tariff. But as time has passed,

8 we submit the time has now arrived as was really accepted by the Appellate

9 Chamber in Jelisic, time has now come where you can identify, we submit, a

10 discernible pattern of sentencing in this Tribunal. And if sentences are

11 out of line with that and can be demonstrated to be excessive, then that

12 ought to be a ground upon which the sentence ought to be capable of being

13 successfully appealed.

14 Now, in this case, the question arises as to whether the

15 appellants or any of them are able to appeal their sentence on the basis

16 of material that was not advanced before the Trial Chamber because there

17 was no mitigation and, therefore, factors that might ordinarily have been

18 prayed in aid were not advanced.

19 In our submission, the answer to this question is to be found in

20 the Statute of the Tribunal itself. Article 24 sets out various factors

21 that a Trial Chamber is enjoined to take into account before passing

22 sentence. In our submission, it is the duty of the Trial Chamber to

23 satisfy itself that it has that material before it, and if it doesn't, to

24 ensure that, perhaps with the assistance of the Prosecution, if necessary,

25 it is given the factual information necessary in order to give effect to

Page 577

1 the factors identified in Article 24 prior to the passing of sentence and

2 they include, of course, the individual circumstances of the convicted

3 person.

4 Silence of Defence counsel or silence of an unrepresented

5 defendant does not absolve the Trial Chamber of its obligations under the

6 Statute and under Article 24. It follows from that analysis that if, on

7 appeal, the Trial Chamber can be demonstrated not to have taken account of

8 factors identified by Article 24 and, as a consequence, injustice has

9 resulted, then the Appeal Chamber is certainly entitled, we submit, to

10 review the sentence in the light of that.

11 The alternative would, we submit, be a curious result. Evidence

12 or material placed before the Court in mitigation isn't normally evidence

13 necessarily given on oath, but frequently falls far short of evidence, may

14 amount to reports prepared by doctors, governors of prison, and the like.

15 But that type of material, we submit, can be admitted by an Appeal Chamber

16 in order to assess whether the sentence passed was excessive.

17 If the Appeal Chamber were to shut its eyes to this new material,

18 then the appellant could certainly seek a review under Rule 119 of his

19 sentence assuming, of course, that the material had come to light since

20 his trial. And therefore, we would argue that even if factors emerge

21 after trial, that the Trial Chamber couldn't conceivably have taken into

22 account because the fact may not have existed such as, perhaps,

23 substantial cooperation with the Prosecutor, but at this stage, the

24 Appellate Chamber ought sensibly to take that factor into account when

25 reviewing the sentence rather than close its eyes to it because to do that

Page 578

1 would merely open the door to a further layer of review as envisaged by

2 Rule 119.

3 It would also, perhaps, be slightly inconsistent if Rule 115

4 permitted the placing of evidence unavailable at trial before an Appeal

5 Chamber but the material relevant to sentence could not be placed before

6 an Appeal Chamber albeit were to satisfy the same threshold for

7 admissibility.

8 Can I, perhaps, in conclusion, be forgiven for reverting, very

9 briefly, to my earlier submission and just end by indicating that the test

10 that I am seeking to urge for the admission of evidence, namely not

11 "would" but "could" or "might" is, of course, entirely consistent with

12 what the Rules have laid down for the test for review proceedings under

13 Rule 120. What Rule 120 says by way of review is that,

14 "If a majority of Judges of the Chamber that pronounce

15 the judgement agree that the new fact if proved could

16 have been a decisive factor," not would, could, "the

17 Chamber shall review the judgement."

18 Well, it would be absurd if Rule 115 were to set a higher test

19 than Rule 120. That would render the consideration of the evidence by the

20 Trial Chamber a lottery. The lottery being whenever the fact is

21 discovered, you will have potentially a different test to be applied to

22 its admission.

23 I apologise for reverting to that, but I intended to do that

24 earlier. That concludes my submissions of general application.

25 JUDGE WALD: Thank you, indeed, Mr. Clegg. Let me see if my

Page 579

1 colleagues have any questions on this second aspect. Unfortunately, I

2 have one, that is: Do I understand your argument to be as to sentencing

3 that if a matter was not raised in the trial court in mitigation, that the

4 Appellate Chamber should look at that factor not in the case only of

5 newly-discovered or newly-happened events, but things that were available

6 at the Trial Chamber? In other words, are you suggesting there's a

7 different test for sentencing material that 115 would provide if the

8 material were relevant to the merits of the appeal?

9 MR. CLEGG: Yes. Yes, I am. Because the sentencing material is

10 not additional evidence. It's a different category of material.

11 JUDGE WALD: So it's governed not by 115 but by your general

12 justice standard of --

13 MR. CLEGG: Yes. It finds support in Article 24.

14 JUDGE WALD: I understand that.

15 MR. CLEGG: And the difference being that, of course, the Trial

16 Chamber, when considering evidence that goes to guilt, is entirely

17 dependent upon what evidence the parties places before it. It's under no

18 obligation to go and seek evidence itself.

19 JUDGE WALD: Are you suggesting the Trial Chamber or the Appellate

20 Chamber is under such an obligation? For instance, suppose a Defence

21 counsel does not raise anything about individual circumstances which is

22 mentioned in Article 24 in mitigation, are you suggesting that the

23 Appellate Chamber has an obligation to go hunt around and see if there was

24 some mitigating circumstances even though the Defence counsel didn't raise

25 them in the trial court?

Page 580

1 MR. CLEGG: Firstly, I'm suggesting the Trial Chamber has that

2 obligation and Article 24 --

3 JUDGE WALD: How could a Trial Chamber have an obligation to look

4 for individual circumstances if the Defence counsel doesn't raise them?

5 MR. CLEGG: Well, there might not be a Defence counsel. You may

6 have somebody who --

7 JUDGE WALD: Well, assuming there is one.

8 MR. CLEGG: One has got to reflect on what the position would be

9 then, what does Article 24 enjoin the Trial Chamber if you have somebody

10 that refuses to recognise the Court and they are convicted? Then the

11 Trial Chamber, in those circumstances, in my submission, would probably

12 seek the assistance of the Prosecutor and ask the Prosecutor to indicate

13 what individual circumstances they were aware of, and also to identify

14 itself from the evidence heard what other individual circumstances may

15 assist on sentence and to specify that in it's sentencing remarks.

16 JUDGE WALD: I have your position. I wanted to make sure I

17 understood it.

18 MR. CLEGG: My submission is that would apply if Defence counsel

19 were less than helpful.

20 JUDGE WALD: Thank you, Mr. Clegg.

21 We will now hear, as I understand it, from Mr. Radovic on the

22 vagueness question, and I believe you said you could do your presentation

23 in approximately 30 minutes or less; is that correct?

24 MR. RADOVIC: [Interpretation] Yes, Your Honour.

25 JUDGE WALD: In that case, I think we will have you go ahead and

Page 581

1 at the end of your 30 minutes which would be approximately 10 minutes

2 after 11.00, we will then have our half an hour break. Go ahead.

3 MR. RADOVIC: [Interpretation] Our position could be summed up as

4 follows: According to Article 18 of the Statute and the Rule 47(C) of the

5 Rules of Procedure and Evidence, the Prosecution has the obligation to

6 include a summary of the facts in the indictment, the summary of the facts

7 on which -- based on which the accused is being charged.

8 We deem that this has not been done which has prevented us from

9 according a fair trial to the accused. The indictment, itself, has two

10 parts; the indictment which was the basis for the trial in this case.

11 That's what I mean. It has been amended -- it was amended immediately

12 before the start of the trial because there was a previous indictment and

13 on the basis of this indictment, the accused voluntarily surrendered to

14 the Court, to the Tribunal.

15 The first part of the indictment contains some vaguely-defined

16 facts. This is the part relating to persecution in which the Kupreskic

17 brothers are charged from persecuting Bosnian Muslims from October 1992 to

18 April 1993 in Ahmici and Santici on political, racial or religious grounds

19 by planning, organising, and implementing an attack which was designed to

20 remove or cleanse all Bosnian Muslims from the village and surrounding

21 areas.

22 It is furthermore alleged that they aided and abetted or

23 participated in the deliberate and systematic killing of Bosnian Muslim

24 civilians, the comprehensive destruction of their homes and property, the

25 organised detention and expulsion of the Bosnian Muslims from Ahmici and

Page 582

1 Santici.

2 Then, in the previous counts, it is also stated that they took

3 part in military training and were armed, that they evacuated Bosnian

4 Croats the night before the attack, that they organised HVO soldiers and

5 ammunition and weapons in and around the Ahmici village, and that they

6 concealed from the other inhabitants the fact that an attack was

7 forthcoming.

8 In paragraph 400 of the judgement, it is stated that this

9 indictment included the incriminations accepted by the Trial Chamber

10 relating to count H -- to Witness H, but it is obvious from the indictment

11 that no such thing is actually there.

12 We believe that a fair trial entails the knowledge of the accused

13 of the precise charges levied against him which would enable him to defend

14 himself successfully. The different results of the consequences of the

15 two ways in which the indictment was phrased prove that our stand is

16 right. In the first indictment, the accused are charged with events in

17 the -- in Witness KL's house and 10 counts refer to this event.

18 In the first part, the accused were convicted on these charges.

19 And in the second part, which is made more specific and which enabled the

20 accused to defend themselves properly, they were acquitted of these -- on

21 these counts. The fact that this vague indictment, to a certain extent,

22 baffled the Trial Chamber itself can be seen from the Presiding Judge, on

23 two occasions, asked the Prosecutor what is it that he is charging Zoran

24 and Mirjan Kupreskic with as regards the events in Witness H's house?

25 One such question was asked in the middle of the Prosecution case,

Page 583

1 and the other question was asked at the end of the Prosecution case. So

2 if the Presiding Judge of the Trial Chamber that is supposed to pass the

3 judgement in this case, if the Presiding Judge was not quite clear as to

4 what the accused were being charged with, then how could one expect the

5 accused and their Defence counsel to know that, to be clear on that?

6 As regards the demand that the charges be clearly defined, we

7 would like to refer to the Celebici case tried before this Tribunal,

8 IT-96-12-T. In this case, the Trial Chamber found that it would not take

9 into consideration other acts for which evidence had been adduced but

10 which had not been mentioned in the indictment itself.

11 In paragraph 1200 of the judgement, the Trial Chamber states that

12 the Trial Chamber will only limit itself to taking into consideration

13 specific acts alleged in the indictment and will not take into account

14 other acts for the infliction of serious bodily harm and cruel treatment,

15 for which evidence had been adduced in the course of trial but which had

16 not been alleged in the indictment. Therefore, the Trial Chamber will

17 limit itself to considering the factual allegations as they have been

18 stated, and then it goes on to list names which are irrelevant for our

19 present case.

20 This clearly indicates that the final decision rendered by the

21 Trial Chamber was based only on the facts or relating only to the facts

22 where you have specific incriminations. In the same judgement, a Trial

23 Chamber of this Tribunal stated as follows:

24 "The Trial Chamber states that the indictment does not

25 contain allegations pertaining to the incidents described

Page 584

1 by these witnesses. When evidence was adduced at the

2 trial pertaining to alleged criminal offences not

3 specified in the indictment, the Trial Chamber, for

4 reasons of fairness,"

5 And this is a principle that we keep on referring to,

6 "did not consider that unspecified acts can form part of

7 the charges against the accused."

8 We believe that this judgement rendered by this Trial Chamber is a

9 paragon of a legal decision which really accords the accused the rights

10 that they are entitled to in the proceedings; and not only paying lip

11 service to it but really giving them those rights.

12 This would, in brief, be the summary of our view of the

13 indictment.

14 Since we still have some time, if you allow me, I would like to

15 make an addendum to this pertaining to the manner in which the judgement

16 was written or, rather, the way that facts were described therein.

17 When the facts are described in the judgement, there should be a

18 summary of all those things of which the accused has been found guilty.

19 The way in which indictments are written before this Tribunal -- the way

20 in which judgements are written is the following: The Trial Chamber

21 refers to the actual indictment without stating the actual facts, and then

22 they say that the accused is convicted on such and such counts and so on.

23 So they merely use the indictment as it is written, which results in an

24 absurd situation.

25 In the Prosecution count, we have the time period of October 1992

Page 585

1 to April 1993. The month of October is taken as the month in which the

2 persecution began. It is done because the first incident in the armed

3 conflict in this area took place then, because there was an incident on a

4 roadblock in Ahmici. The Trial Chamber itself in its judgement specified

5 that this armed conflict was not caused by Croats but by Muslims. If you

6 read the part of the judgement in which convictions are rendered, which

7 accepts the arguments of the Prosecution, then you will think that Croats

8 actually caused the conflict, because not many people go into such detail

9 and will study the judgement in detail.

10 We also have another situation. Under the heading of

11 "Persecution," it is stated that the Kupreskics persecuted Muslims in all

12 the ways as the Prosecution described it in this time period, October

13 1992, April 1993. And of course you can write down anything, but it is

14 much harder to actually prove it. Yet the Trial Chamber accepted this

15 allegation despite the fact that on page 6094 of the Trial Chamber, we

16 have an allegation made by the Prosecution indicating that it is

17 stipulated that until the 16th of April, the Kupreskics were good people

18 and good neighbours. So the Prosecution stipulates this, indicating that

19 they were not engaged in the acts of persecution that they are being

20 charged with.

21 This will be more or less what I have to say now, although I will

22 speak in some detail about other problems relating to facts. Unless you

23 want me to go on now, because I still have some time.

24 One of the basic principles of the proceedings, as guaranteed by

25 the Statute, is that everybody is considered equal before this Tribunal,

Page 586

1 which means that every accused has to be treated in the same way. Yet the

2 Tribunal does not act in this way, because some pieces of evidence --

3 there is an exhibit offered by the Prosecution, P355. This is a list of

4 members of the Home Guard Regiment. And there is also a time period in

5 which these people were actually members of this Home Guard Regiment. The

6 Defence counsel challenged the authenticity of this document, but this is

7 besides the point. I will come back to that.

8 As regards Dragan Papic, a co-accused in the same proceedings who

9 was acquitted, the Trial Chamber accepted the view of the Defence counsel

10 for Dragan Papic, accepting that the people who took part in the war were

11 given certain privileges. So the Trial Chamber accepted the validity of

12 this document as regards the Kupreskic brothers, yet stated that it was

13 not authentic as regards Dragan Papic.

14 Also, it is stated for one of the accused that he was a good man

15 and a good neighbour until April 1993. They accepted this fact in his

16 case but refused to accept the same fact in mitigation as regards the

17 Kupreskic brothers.

18 Also, it is also accepted that they organised HVO soldiers and

19 weapons and ammunition around the Ahmici and Santici village. There is no

20 evidence to support this fact, and the Trial Chamber does not even state

21 that this fact has been proven. Furthermore, it is stated that they

22 supported, in the time period from October, the systematic killing of

23 Muslim civilians, destruction of Muslim houses and property, organised the

24 detention of Muslims, and so on and so forth. As regards these two, there

25 is nothing said in support of this in the judgement, yet there cannot be

Page 587

1 because it is well known that they have been good neighbours and good

2 people up until April 1993.

3 What we would like to know is how can the Trial Chamber use the

4 allegations in the indictment as the basis for their judgement, yet in the

5 same judgement also refute the allegations in the indictment?

6 I would not like to waste any more of your time, Your Honours. I

7 think that I have said all that I needed to say at this point.

8 JUDGE WALD: Thank you, Mr. Radovic, and we appreciate your

9 concern for the time schedule.

10 I think at this point we will be able to take a 30-minute break,

11 which will bring us back at 11.25. Please be prompt, because due to the

12 good graces of Mr. Radovic and Mr. Clegg, we are almost back on the

13 original schedule that we had before and I'd like to keep that if I can.

14 So we'll have a break for the translators and anyone else till 11.25. At

15 that point, I understand Mr. Abell and Mr. Pavkovic will talk about some

16 sentencing issues.

17 MR. ABELL: Your Honours, more good news, if I may say.

18 JUDGE WALD: Please.

19 MR. ABELL: Mr. Clegg, in his submissions this morning, has

20 effectively covered the matters. But I indicated at the Status Conference

21 that I would be dealing with it as a matter of generality. And I really

22 can do no better than to adopt the submissions already advanced this

23 morning, and indeed what is set out at paragraph 3.12, on page 20 of my

24 learned friend, Mr. Clegg's, brief of argument filed on the 18th of July.

25 JUDGE WALD: That is good news, Mr. Abell.

Page 588

1 MR. ABELL: So a saving of time there.

2 JUDGE WALD: Thank you. How about Mr. Pavkovic? Do you wish to

3 go ahead with your portion of the sentencing issues when we return?

4 MR. PAVKOVIC: [Interpretation] Your Honour, I felt that Mr. Abell

5 and I would share this time equally. So we shall save 20 minutes, and I

6 shall take about 20 minutes to set out certain submissions.

7 JUDGE WALD: That's fine. We will hear you upon our return at

8 11 -- well, it's close. Let's make it 11.30 now because it's so close.

9 Thank you.

10 --- Recess taken at 10.58 a.m.

11 --- On resuming at 11.33 a.m.

12 JUDGE WALD: We will resume the hearing. Let me just -- Mr. Clegg

13 is apprised, I'm sure, that his book of authorities has arrived and is in

14 our possession now, and we are scheduled now to hear from Mr. Pavkovic for

15 about 20 minutes.

16 What is it, Mr. Radovic? Were you on your feet?

17 MR. RADOVIC: [Interpretation] I would only ask that a correction

18 be entered into the transcript where I was quoting the Celebici

19 judgement. I was talking about paragraph 1045, not the one that's

20 mentioned in the transcript.

21 JUDGE WALD: All right. We'll make note of that. The

22 recommending as far as will make note of that and we will make sure it

23 gets correct. All right. Mr. Pavkovic.

24 THE INTERPRETER: Microphone for Judge Wald, please.

25 MR. PAVKOVIC: [Interpretation] Your Honours, the topic I shall

Page 589












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Page 590

1 deal with in this brief space of time is doubtless very significant and

2 comprehensive. When one considers what should be said in this brief

3 period of time, one has to judge what is essential, what is important, and

4 what is less important and need not be said here.

5 What we heard in my learned friend Mr. Clegg's presentation is

6 certainly something we all agree with. We did not have very detailed

7 consultations, and each one of us feels we could add something. The

8 matters that this International Tribunal deals with show this clearly.

9 When discussing sentencing, we can view this either from the

10 aspect of the jurisprudence of the Tribunal or the aspect of legislation.

11 I shall deal with matters pertaining to the jurisprudence of the courts of

12 the former Yugoslavia, but first let me say a few words by way of

13 introduction to show how important this topic was and how many dilemmas

14 there were as to whether this International Tribunal is bound to respect

15 the provisions in Rule 101 and in Article 24 of the Statute that the --

16 one of the things to be taken into account is the general practice

17 regarding prison sentences in the courts of the former Yugoslavia.

18 This is not a topic I shall be discussing, but it seems to me that

19 a comprehensive interpretation of Article 24 of the Statute of the

20 Tribunal, not just the key words contained in Articles -- or in

21 subparagraphs 1 or 2 that this shall be taken into account, but also part

22 3 of this Rule which deals with compensation. It seems to me that the

23 Security Council wished to say that this practice can be taken account,

24 but need not be taken into account. But as I say, this is not a topic I

25 shall be discussing at great length. However, it seems to me that this is

Page 591

1 was the intention.

2 Let us now go back to the question of the jurisprudence of the

3 courts of the former Yugoslavia as one of the relevant circumstances which

4 the Court should consider. We must ask what jurisprudence you are

5 actually referring to. Is there no precedent for this Tribunal to refer

6 to the jurisprudence of a national court? I think not. Because as I

7 understand it, the decisions reached here must first of all bear a message

8 for the lands of the former Yugoslavia, and this is one of the things that

9 was expressed in the Security Council resolution because one of the

10 purposes of this Tribunal is the restoration of peace and peaceful

11 coexistence on the territory of the former Yugoslavia.

12 What are the basic tenets one should start from? Is this Tribunal

13 bound to take into consideration the jurisprudence of the former

14 Yugoslavia or is it to be used only as something to be considered? The

15 courts of the former Yugoslavia primarily founded their decisions on

16 certain principles, and before I start dealing with specific pragmatic

17 issues, let me say the following: In the light of these, one can consider

18 what circumstances this Tribunal has taken into account. The Penal Code

19 of the former Yugoslavia started from the fact that criminal

20 responsibility is the basis of sentencing. We shall see that at this

21 Tribunal, the emphasis was laid on the gravity of the offence. However,

22 when taking into consideration all the circumstances, the criminal

23 responsibility must also be taken into account as it was in the courts of

24 the former Yugoslavia because however serious the offence, there will be

25 no punishment if there is no criminal responsibility.

Page 592

1 The second principle which should be kept in mind is that the

2 courts in the former Yugoslavia abandoned the system whereby strict rules

3 are laid down stating what concrete circumstances must effect the length

4 of the sentence. According to the rules contained in this law, it should

5 be mentioned that the law provided only for a general framework for

6 sentencing, and it was left up to the court to take into consideration all

7 the circumstances of a specific case and to pronounce an individual

8 sentence.

9 It is important to point out, bearing in mind the overall practice

10 of sentencing of the courts of the former Yugoslavia, that courts could

11 also pronounce a sentence that fell outside the prescribed framework if

12 the court found -- deemed it necessary to do so in a particular case. So

13 these were only some general observations regarding the sentencing

14 practice of the courts of the former Yugoslavia.

15 What relevant provisions should this Tribunal, if it decides that

16 this is helpful, rely on? The Penal Code of the former Yugoslavia

17 contained some general rules of sentencing in Article 41, and besides

18 this, there were some special rules regarding sentencing for concurrent

19 criminal offences. Then it contained special rules on sentencing below a

20 certain minimum, and mitigating or aggravating circumstances.

21 In all this, it is important to stress that these general rules

22 were binding upon the courts in the former Yugoslavia to pronounce

23 sentencing within the framework of the law bearing in mind the purpose of

24 the punishment which was, on the one hand, general prevention and to deter

25 potential criminals, and to influence people not to commit criminal

Page 593

1 offences and to strengthen, discipline, responsibility, respect for the

2 law. As can be seen in some of the judgements passed by this Tribunal,

3 retribution was not an element to be considered in sentencing.

4 When the court sentenced persons under this law, it also took into

5 consideration the individual circumstances which led to the sentence being

6 higher or lower within the prescribed limits. The courts in Yugoslavia

7 took into consideration the degree of criminal responsibility, which was a

8 very important circumstance; the motives for the offence; the previous

9 history and the conduct of the accused and of the sentenced person and

10 other circumstances. These are just some examples. But the court could

11 take into consideration any circumstance that it found helpful in

12 evaluating the sentence that was most suitable for that offence.

13 In some decisions of high courts in the former Yugoslavia, it was

14 stated that this sentence had to be a result of all the circumstances and

15 not just some of them. It should also be pointed out when discussing this

16 jurisprudence, is the question of those circumstances that constitute

17 elements of the criminal offence cannot then be considered again as

18 aggravating circumstances, because the law built these circumstances into

19 the offence itself. Also, those elements which surpassed the extent of

20 elements constituting a crime were to be taken into account in sentences.

21 So these provisions of Article 41 of the Penal Code of the former

22 Yugoslavia set out only the most typical circumstances to be taken into

23 account, but the court was free to take into account other circumstances

24 also.

25 When considering the degree of criminal responsibility, these

Page 594

1 issues mainly came down to evaluating the ability of the perpetrator to

2 understand the crime and to control his actions. They evaluated a whole

3 range of states of mind of the person, taking into account the opinion of

4 psychiatrists. At one extreme were persons who were fully aware of the

5 meaning of their acts; at the other end of the scale were those who were

6 totally unable to comprehend this. Then there was also the question of

7 guilt. And in various places in the law, both of these elements were

8 taken into account, but when sentencing, they had to be seen together.

9 In evaluating this circumstance, the practice of the courts

10 concentrated mainly on the issue of premeditation, direct premeditation,

11 where the perpetrator is fully aware of the consequences of his acts and

12 he willingly commits it, or where the perpetrator was aware but did not

13 want the circumstances to happen. Then there is also negligence. So

14 there is conscious and unconscious negligence. The degree of criminal

15 liability and its evaluation was one of the factors taken into account in

16 sentencing.

17 The motive for the crime was also a very significant circumstance

18 which was, in some cases, taken as an aggravating factor, and in other

19 circumstances, as an aggravating factor; whether the criminal offence was

20 accompanied by hatred, revenge, wishful material gain or whether the

21 person was in some way forced to act as he did.

22 So all this --

23 JUDGE WALD: Excuse me for interrupting. I'm sorry,

24 Mr. Pavkovic. I just wanted to remind you you've got just a few more

25 minutes. Go ahead.

Page 595

1 MR. PAVKOVIC: [Interpretation] Thank you. I forgot myself a

2 little because of my colleagues.

3 So the circumstances under which the offence was committed were

4 taken into account and were reflected in the sentencing practice of the

5 courts.

6 The previous history of the convicted person and his bearing after

7 the commission of the crime, this was also relevant in selecting a

8 sentence; whether the accused later showed signs of remorse or offered to

9 make up for the damage, and so on.

10 The bearing of the accused during the trial was also taken as an

11 important circumstance, whether he surrendered, whether he was

12 cooperative. So all this was taken in mitigation. And to conclude an

13 admission of guilt, if it was complete and sincere, and if it helped to

14 throw light on the act, was also taken in mitigation. However, failure to

15 confess and denial of the act was not taken as an aggravating circumstance

16 because the perpetrator is not bound to testify against himself.

17 So this is just a general overview of the sentencing practice of

18 the courts of the former Yugoslavia, and if it can help, together with all

19 the other circumstances to be taken into account, then this modest

20 contribution will have been useful.

21 JUDGE WALD: Thank you very much, Mr. Pavkovic. Do we have any

22 questions? No. Thank you.

23 Next on the agenda is the Prosecution's appeal against the

24 conviction and sentence, and I think, Mr. Yapa, at our Status Conference

25 you asked for 15 minutes for this.

Page 596

1 MR. YAPA: It is 15 minutes, and Ms. Suominen will deal with the

2 matter.

3 JUDGE WALD: Go ahead.

4 MS. BOELAERT-SUOMINEN: Madam President, honourable members of the

5 Chamber, my name is Sonja Boelaert-Souminen. May we now present the

6 Prosecution's own appeal in this case.

7 As you have gathered from our submission at the Status Conference,

8 our submissions will be brief, mainly for the reasons that we believe that

9 our arguments and authorities have been reasonably supported by

10 jurisprudence coming out from the Appeals Chamber.

11 My oral argument will be structured as follows: After a brief

12 introduction, I will also go very briefly over the procedural history of

13 our own appeal. Then I will go over to the main points of the

14 Prosecution's own appeal in this case, and this consists of question of

15 cumulative charging on the one hand and the question of cumulative

16 conviction on the other. I will then conclude our submissions on the

17 Prosecution's own appeal in this case, and then I will briefly elaborate

18 on an additional error in sentencing which the Prosecution submits the

19 Trial Chamber committed in relation to one of the accused persons. And

20 finally, I will end my submissions with restating the relief sought by the

21 Prosecution in relation to its own appeal in this case.

22 The Prosecution's own appeal in this case is limited to the

23 verdict on two of the charges laid against each of the following two

24 persons: Drago Josipovic and Vladimir Santic. When you read the

25 indictment, you will see that these two persons had been charged with

Page 597

1 multiple crimes arising out of the same acts. The conduct the accused has

2 been charged with is set out in paragraphs 32 through 35 of the

3 indictment.

4 The cumulative convictions I am going to deal with today relate

5 all events surrounding the killing of Musafer Puscul and the burning of

6 the Puscul home. For their role in the killing of Musafer Puscul, the

7 accused had been charged with the count of murder under Article 3 of the

8 Statute which refers to common Article 3 of the Geneva Conventions, but

9 also under Article 5 of the Statute as a crime against humanity.

10 For the conduct which consisted of forcibly removing the Puscul

11 family from their home and holding the family members nearby, by killing

12 Musafer Puscul and burning the family home, the two accused persons had

13 been charged with a count of cruel treatment under Article 3 of the

14 Statute, and a count of inhumane acts under Article 5 of the Statute. The

15 Trial Chamber found that the Prosecution had established the facts beyond

16 a reasonable doubt. The Trial Chamber also found that the Prosecution had

17 proven the culpable role played by these two accused persons in these

18 events.

19 Finally, the Trial Chamber found that the facts as proven met the

20 elements of the different crimes they had been charged with. However, the

21 Trial Chamber found, for reasons of law, that the war crimes charges, and

22 I'm referring here to the Article 3 charges, had been improperly charged

23 cumulatively with the more serious offences under Article 5 of the

24 Statute.

25 The Trial Chamber based this decision on its analysis of the

Page 598

1 principles of concurrence of offences, and this is set out in paragraphs

2 637 through 748 of the judgement. In conclusion, the Trial Chamber

3 decided that the prohibition of murder as a crime against humanity was lex

4 specialis in relation to the prohibition of murder as a violation of the

5 laws and customs of war and it followed the same reasoning for the

6 multiple charges of cruel treatment and inhumane acts. The Trial Chamber

7 decided to dismiss the counts based on Article 3 of the Statute and find

8 the two accused not guilty under these war crimes charges.

9 The Prosecution filed its appeals brief in this case on the 3rd of

10 July of the year 2000. At that time, the question of concurrence of

11 offences had arisen in one other case before the Appeals Chamber in this

12 case. I'm referring to the Celebici case. By the time it came to file

13 the respondents' briefs, the Prosecution noted that the Appeals Chamber of

14 this Tribunal had rendered an important judgement dealing, for the first

15 time, with some of the principles relating to concurrence of offences.

16 I'm referring here to the Celebici appeals judgment which was rendered on

17 the 20th of February of this year.

18 Shortly after the Celebici appeals judgement was rendered, two

19 Trial Chambers sitting in other cases rendered a judgement whereby they

20 applied the test articulated by this Celebici appeals judgement in

21 relation to pairs of commitive [sic] convictions which were issued in both

22 cases. I'm referring to the Kunarac judgement which was rendered on the

23 22nd of February of this year, and also to the Kordic and Cerkez judgement

24 which was rendered on the 26th of February of this year.

25 Because the Prosecution believed that this jurisprudence

Page 599

1 constituted significant developments in the jurisprudence of this

2 Tribunal, that the Prosecution sought leave to file an amended appeals

3 brief in this case. Leave was granted, and the Prosecution filed an

4 amended appeals brief in this case on the 15th of May of this year.

5 By the time the Prosecution had arrived to file its replies briefs

6 to the two respondents' briefs filed in this case, this Appeals Chamber

7 had rendered a further judgement dealing with the question of concurrence

8 of offences, and this is the Jelisic judgement rendered on the 5th of July

9 of the year 2001.

10 The Prosecution took the opportunity to take account of this new

11 development or this further jurisprudence in its prior briefs to the

12 respondents' briefs filed by -- on behalf of the persons Drago Josipovic

13 and Vladimir Santic.

14 The Prosecution submits that it has discussed this jurisprudence

15 in detail both in its amended appeals brief and in its reply briefs, and I

16 will not, therefore, go into detail today. I will just -- would like to

17 draw Your Honours' attention, if I may, to the main points of the

18 Prosecution's appeal in this case.

19 The criticism by the Prosecution of the judgement rendered in this

20 case insofar as the question of concurrence of offences is concerned is

21 basically threefold. The Prosecution submits that the Trial Chamber

22 firstly incorrectly set out and further incorrectly applied the legal

23 principles applicable to the question of cumulative charges in this

24 Tribunal.

25 Secondly, the Prosecution submits that the Trial Chamber

Page 600

1 incorrectly applied the legal principles applicable to the question of

2 cumulative convictions in the legal system of this Tribunal, in

3 particular, insofar as the question of multiple convictions between

4 Article 3 and Article 5 is concerned.

5 Thirdly, and consequently, the Prosecution submits that the Trial

6 Chamber's decision to acquit the respondents on Counts 17 and 19 of the

7 indictment which refer to the war crimes characters is invalid, is an

8 error of law under Article 25(1)(a) of the Statute.

9 The first point of the Prosecution as set out previously is that

10 the Trial Chamber incorrectly set out and applied the principles relating

11 to the practice of cumulative charges in this Tribunal. This question, we

12 submit, has been dealt with by the Celebici appeals judgement and more, in

13 particular, paragraph 400 of this judgement.

14 In the Celebici appeals judgement, this Appeals Chamber for the

15 first time rendered a decision relating to the question of concurrence of

16 offences whereas the Celebici appeals judgement decided that the question

17 of cumulative convictions could only be allowed, that the practice of

18 cumulative convictions could only be allowed under certain circumstances

19 of which I will talk later. The appeals judgement decided that the

20 practice of cumulative charges, on the other hand, should be generally

21 allowed for the following reasons, and I'm reading here part of paragraph

22 400 of the Celebici judgement.

23 JUDGE WALD: I do want to remind you that you've got about 5

24 minutes left if there are certain points that you want to be sure that you

25 are able to cover.

Page 601

1 MS. BOELAERT-SUOMINEN: I will not read paragraph 400 of the

2 Celebici appeals judgement, but I will just add that in relation to this

3 decision, we believe that the Trial Chamber's decision was in error.

4 With respect to the question of cumulative convictions, Your

5 Honours, we believe that not only the Celebici appeals judgement but, in

6 particular, the Jelisic appeals judgement which was rendered recently on

7 the 5th of July of the year 2000 fully supports the arguments and

8 authorities developed by the Prosecution in its amended appeal brief and

9 in its reply briefs which were filed recently.

10 The Celebici appeals judgement decided that cumulative convictions

11 between multiple charges in the indictment can be allowed under the

12 following circumstances when you are dealing with generally distinct

13 offences under international criminal law. In order to determine whether

14 one is dealing with generally distinct offences, the test is what I would

15 call the different elements test. If each of the crimes at issue contain

16 a materially distinct element not contained in the other.

17 When we filed our amended appeals brief in this case, the

18 Prosecution submitted that cumulative convictions between Article 3 and

19 Article 5 should be generally allowed because the test was met. And the

20 distinct material element which, according to the Prosecution, is

21 contained in the Article 3 charges is the question of -- factor that there

22 needs to be a closed or sufficient nexus with armed conflict.

23 The distinct material element contained in Article 5 offences,

24 according to the Prosecution, was the requirement that the crimes against

25 humanity for a part of a widespread or systematic campaign against the

Page 602

1 civilian population, and we believe that the Jelisic appeals judgement

2 confirms that the arguments developed by the Prosecution in this regard

3 are legally sound.

4 The Jelisic appeals judgement, first of all, is relevant because it

5 deals with the same categories of offences; Article 3 and Article 5

6 offences. Secondly, because it also deals with the same, exactly the same

7 offences as those that are at issue in the case at bar: Murder under

8 Article 3, murder under Article 5; cruel treatment under Article 3,

9 inhumane acts under Article 5.

10 Thirdly the Jelisic appeals judgement confirms that there are no

11 cogent reasons in the interests of justice which would justify a departure

12 from this jurisprudence. In the fourth place, we believe that the Jelisic

13 appeals judgement is relevant because it confirms that in order to

14 determine whether there are distinct legal elements one should only look

15 at the elements that go into the actus reus or the mens rea of the offence

16 but it can also take into account the jurisdictional elements or

17 contextual elements.

18 In conclusion, Your Honour, the relief sought by the Prosecution

19 is that the Appeals Chamber, first of all, note the errors which are

20 contained in the judgement under appeal, and I'm not going to repeat the

21 errors. The basis of the relief sought by the Prosecution is that the

22 Appeals Chamber reverse the acquittals of Drago Josipovic and Vladimir

23 Santic on Counts 17 and 19 of the indictment and find the accused guilty

24 on these counts.

25 Finally Your Honour, if you allow me one more minute.

Page 603

1 JUDGE WALD: One minute.

2 MS. BOELAERT-SUOMINEN: As set out in our amended appeals brief,

3 the Prosecution submits that there is an additional error in sentencing

4 committed by the Trial Chamber in relation to the accused Drago

5 Josipovic. When you read the sentencing part, you will note that Drago

6 Josipovic received a sentence of 15 years for the count of murder but a

7 sentence of 10 years for the count of persecution.

8 Whilst the Prosecution believes that the total sentence handed

9 down against the accused Drago Josipovic is appropriate in view of the

10 severity of his conduct, the Prosecution submits that the way the

11 sentencing was set out is, nonetheless, in error for the reason that the

12 underlying conduct which was taken into account for the count of murder

13 also formed the basis of the underlying conduct of the persecution

14 charge. However, the persecution charge was based on a much wider set of

15 facts in relation to Drago Josipovic. It took into account, for instance,

16 Drago Josipovic's role in relation to victim Nazif Ahmic.

17 This, Your Honours, if there are no questions from the Bench in

18 relation to my submission, would conclude the Prosecution's own appeal in

19 this case.

20 JUDGE WALD: Thank you very much, Ms. Suominen. Do we have any

21 questions? I just want to verify one thing. You are not, I gather, you

22 are not asking for any new sentencing in regard to Article 3, Article 5,

23 if your position prevails on appeal, all other things being equal; is that

24 correct?

25 MS. BOELAERT-SUOMINEN: Yes, Your Honour. This is our

Page 604

1 submission. We're only asking for reversal of the acquittals, not for an

2 increase in sentence.

3 JUDGE WALD: Okay. Thank you.


5 JUDGE WALD: We will now, because it is -- yes, we will now,

6 because it is 12.10, and with Mr. Abell's consent, we will begin with his

7 argument. He may not be able to complete it, because I think we will --

8 he has a total -- we will have lunch. So I would advise him in advance

9 that he has a total of 85 minutes; that's the same that's given to all the

10 appellants. So I would see 45 minutes of that taking us to 1.00, at which

11 time, if he can conclude in that vicinity, we'll be able to break for

12 lunch and he can finish after lunch. Go ahead.

13 I'm also going to take 30 seconds, Mr. Abell, and just alert you

14 to just two points that I think would be useful. You may intend to cover

15 them in your argument anyway. Those would be exactly what bearing you

16 think the findings of Mr. Vlatko Kupreskic's police role had on the

17 overall findings of the Trial Chamber, and what impact you think the

18 evidence of AT would have on his appeal.

19 Go ahead till approximately 1.00 or in that vicinity, whenever you

20 want to break.

21 MR. ABELL: Your Honours, we arrive mercifully ahead of schedule

22 to look at the appeal of Vlatko Kupreskic, and I hope I don't make a rash

23 promise, but I will do my level best to make sure that whilst I'm on my

24 feet the momentum will be kept up. I stress, I hope that isn't a rash

25 promise.

Page 605

1 On his behalf, we have filed the following pleadings: the

2 appellant's brief on the 5th of September of last year, now public in its

3 redacted form; the supplemental appellant's brief filed on the 12th of

4 June of this year; and a reply to the Prosecution respondent's brief filed

5 on the 18th of July. Those written pleadings, we hope, set out the

6 arguments which we put forward on behalf of Vlatko Kupreskic, and they

7 deal, we hope, with the issues in very considerable detail.

8 Now, the purpose of what I have to say on his behalf now, in this

9 oral argument, is not, of course, to slavishly repeat what is already set

10 out in the pleadings, but it is my opportunity, I hope in this speech, to

11 complement those pleadings by drawing some of the threads together and

12 commenting on the impact of the various segments of evidence which we have

13 heard, and factoring it into the evidence upon which this appellant Vlatko

14 Kupreskic was convicted. I will focus, I hope, on what we perceive to be

15 the major issues.

16 But may I stress before I leave these introductory remarks that we

17 rely, of course, as we always have done, on our written pleadings, and I'm

18 sure that they will be considered by Your Honours in conjunction with the

19 oral arguments we present.

20 The submissions that I'm going to start, then, will be divided

21 into seven chapters. The first chapter will deal briefly with the Trial

22 Chamber's legal findings and comment upon the nature of the Prosecution's

23 case upon which the appellant Vlatko Kupreskic was convicted. Chapters 2

24 to 6 will deal with the various segments of the evidence both called at

25 trial and additional evidence heard by this Appeals Chamber. And Chapter

Page 606

1 7, which, because by then I feel that you will deserve a change of voice,

2 my learned co-counsel Mr. Livingston will present, that will be the

3 sentencing appeal.

4 It will be necessary for me, when dealing with parts of Chapters 2

5 to 6, to go into private session. I will indicate just before that is

6 necessary when it is necessary, and I hope it won't cause any difficulty.

7 Can I simply say this before moving on to the first chapter:

8 Concerning the standard of review, we adopt the submissions which were

9 advanced this morning by Mr. Clegg; in other words, in a sentence, the

10 correct test is "might" or "could the additional evidence have caused a

11 reasonable Trial Chamber to have come to a different verdict?" And,

12 again, we repeat what we set out in our supplemental appellant's brief,

13 page 3, at paragraph 8.

14 Chapter 1, then, the Trial Chamber's findings, I summarise them, I

15 hope, briefly. They are to be found at paragraphs 795 to 804 of the Trial

16 Chamber's judgement, and they are (a) to (f); that the appellant was a

17 member of the police, an operations officer for the prevention of crimes

18 of particular state interest with the rank of inspector first class; that

19 his role was more than merely a maker of an inventory at the Vitez Police

20 Station; (b) that he was unloading weapons from a car in front of his home

21 in October of 1992, and that there was sightings of him in and around his

22 house and the Sutra shop on the afternoon, early evening of the 15th of

23 April of 1993, the eve of the attack on Ahmici; (c) that an identification

24 of him in front of the Hotel Vitez on the morning of the 15th of April was

25 held to be correct; (d) that there was an entry in Witness V's diary

Page 607

1 recording that an information had been -- or that he had learned that

2 Croats were concentrating around the Kupreskic houses; (e) that the

3 evidence of Witness H as to the appellant's presence nearby to the home of

4 Suhret Ahmic in the early hours of the morning of the 16th; although there

5 was no evidence as to what he was actually doing, it was concluded that he

6 was present, ready to lend assistance in whatever way he could. And from

7 that it was deduced that the appellant was involved in the preparations

8 for the attack on Ahmici in his role as police operations officer, and by

9 agreeing to the use of his house as a strategic point and staging area for

10 the attacking troops.

11 That is a summary of the legal findings late on in the judgement.

12 However, in our contention, it is perhaps instructive to see the process

13 by which the Trial Chamber came to arrive at those legal findings, and

14 that appears somewhat earlier in the judgement at -- I give you the

15 reference; I certainly don't ask anyone necessarily to turn it up. But

16 it's at page 176 of the judgement, "Findings of the Trial Chamber in

17 Relation to Vlatko Kupreskic."

18 In our submission, the reading in particular of paragraphs 462

19 through to 471, which demonstrates perhaps the reasoning and thought

20 process that lay behind arriving at those findings, is set out. It, I

21 submit, makes instructive reading because it demonstrates how the Trial

22 Chamber, having made, for example, one finding of fact, for example, that

23 Vlatko Kupreskic worked for the police between 1992 and 1993, making that

24 finding of fact as being more than an inventory compiler, use that finding

25 as strong support upon which another or other findings could be made. And

Page 608

1 in particular, I refer to the judgement, using that example, at paragraph

2 463. I just quote briefly a segment from that paragraph:

3 "The Trial Chamber rejects the evidence of the accused to

4 the effect that he was concerned merely to make

5 inventories of supplies for the police and finds that he

6 was an active operations officer."

7 Finding.

8 "This occupation explains why he was seen unloading

9 weapons from a car in front of his house in October 1992,

10 and was again seen there on the afternoon of the 15th of

11 April, 1993," that all being evidence which the Trial

12 Chamber accepts.

13 That which was found proved against Vlatko Kupreskic, Count 1,

14 aiding and abetting persecution, was based, we contend, in general terms,

15 upon various disparate pieces of evidence which can, for the most part, if

16 not completely, be fairly described as circumstantial evidence from which

17 the Trial Chamber felt able, on the information that they had, to draw

18 certain inferences and conclusions.

19 Again, going back to paragraphs 462 through to 471, the phrase

20 "The Trial Chamber concludes from the above evidence that ..." appears

21 many times - paragraph 466, by way of example; paragraph 470 - reaching a

22 conclusion on a piece of circumstantial evidence and using it to knit

23 together with other circumstantial evidence to, as it were, found the

24 basis upon which he was convicted of aiding and abetting

25 on Count 1.

Page 609

1 Now, we submit, although of course it's a perfectly legitimate

2 exercise and can be done by courts, to take disparate pieces of evidence

3 and assess their cumulative effect, nonetheless - I'll have more to say

4 about that later - these disparate pieces of circumstantial evidence, we

5 submit, when taken individually and in isolation, could not prove this

6 appellant's complicity even as an aider and abettor. It is only if those

7 disparate pieces of evidence are treated, as they were by the Trial

8 Chamber, as mutually dependent; that anything like enough material upon

9 which to sustain a conviction is seen. And I come back to the example at

10 paragraph 463 of the judgement.

11 If I can draw an analogy, the evidence which was accepted as proof

12 of Vlatko Kupreskic's guilt can perhaps be likened to a spider's web, a

13 spider's web which has just a few strands, all of which support each other

14 and each of which supports the whole structure. It's a delicate thing, is

15 a spider's web, just as in our submission, the evidence against Vlatko

16 Kupreskic can fairly be described as tenuous. And if one, or two, or

17 three of those seven strands are taken away, are neutralised or explained

18 then, in our submission, not I hope pushing the analogy too far, the

19 spider's web simply disintegrates and there isn't the material upon which

20 a conviction can be sustained. That is why we have described in ground of

21 appeal A that the evidence is fairly described against this man as

22 tenuous.

23 Of course the whole point in many ways of circumstantial evidence

24 is that the more information you have, the better position you are in to

25 evaluate the strengths on one side or, other side of the coin, the

Page 610

1 limitations of that circumstantial evidence.

2 Can I draw another little analogy? I hope that the last, just to

3 bring the point home, a crossword analogy. It's not intended to be a

4 particularly profound one, but it's just to explain how fresh facts can

5 put evidence, circumstantial evidence, in a completely new light. If one

6 has a four-word include a clue in a crossword puzzle and one can't quite

7 get the answer, but one has a hunch that the answer is "best," b-e-s-t,

8 it's consistent with the clue, and it's the strong hunch that it's going

9 to be "best." When one suddenly gets the clue going the opposite way, one

10 finds out that what one needs to have in the third letter is an "S" turns

11 out to be "L," it cannot be "best," it must be "belt." A rather frivolous

12 example, but just showing how fresh information in the form of another

13 clue can completely change the evaluation, the weight that can be placed

14 on disparate pieces of evidence. And we submit in this case is that that

15 is what we have done in this appeal.

16 The additional evidence which we have called or which is there for

17 evaluation by the Appeals Chamber casts new light upon those seven

18 strands, as it were, of the spider's web upon the disparate pieces of

19 substantial evidence upon by Vlatko Kupreskic's conviction was based. And

20 we submit that they strongly assist, they put this Appeals Chamber in a

21 much better position to see the fuller picture to evaluate, to recognise

22 the limitations of the evidence upon which this conviction was based.

23 I revisit, briefly, that paragraph 463 of the judgement where it

24 was said that, "Because the Trial Chamber found that Vlatko Kupreskic

25 worked for the police," as it says, "in 1992 and 1993, that explains the

Page 611

1 sighting of him or the alleged sighting of him as removing weapons from

2 his vehicle in October of 1992."

3 The difficulty about that when we look at it is this: Firstly,

4 the unloading of the weapons in October 1992 looked at in isolation, that

5 it really is a straw in the wind. I saw that for this reason: How can - - I

6 pose this rhetorical question - how can a sighting of allegedly unloading

7 weapons in October 1992 fully six months before the conflict in Ahmici in

8 April of 1993 and, what is more, at a time when the tension in the Vitez

9 area which, of course, includes the village of Ahmici was between Croats

10 and Serbs as opposed to Croats and Muslims, how can that piece of

11 evidence, by itself, really be a satisfactory basis upon which to conclude

12 fully six months later, in a completely different tense situation, this

13 man was involved in the preparations for the conflict?

14 It is, in our submission, it cannot be used in that way taken by

15 itself. It is simply too remote. But, of course, it was, as it were,

16 latched on to by the Trial Chamber when taken into conjunction with the

17 deduction that this man worked at a higher grade in the police than was

18 originally suggested. What was that deduction based on? It was based

19 purely on two paper exhibits, Exhibit 377 and Exhibit 378 put in broad

20 terms supporting the contention that Vlatko Kupreskic had been an active

21 operations officer.

22 Now, the difficulty, of course, with that conclusion on the two

23 pieces of paper is this: That the Trial Chamber did not have the

24 advantage that Your Honours in the Appeals Chamber have of having heard

25 the evidence of ADB, ADC, and Miro Lazarevic, all Rule 115 additional

Page 612

1 evidence witnesses who were able to speak in their separate ways in some

2 depth about those pieces of paper, about what Vlatko Kupreskic really did

3 at the police station and, indeed, that, of course, he wasn't working for

4 the police in October of 1992 when that alleged sighting was made in

5 relation to the weapons.

6 So that's, I hope, an example of the limitations of that type of

7 evidence and knitting two pieces of evidence together in that way when one

8 doesn't have the full picture as we submit the Trial Chamber didn't. And

9 we make this further general observation that in this appeal, Vlatko

10 Kupreskic genuinely stands apart from the other appellants, really for two

11 reasons we make that submission.

12 Firstly, the tenuous evidence which resulted in his conviction,

13 and secondly, because in his appeal, there genuinely is a substantial body

14 of additional evidence upon which one can evaluate and see more clearly

15 the limitations of the circumstantial evidence available at that stage on

16 its own to the Trial Chamber. The additional evidence called, if I can

17 analyse it very briefly in this way, goes to four of the legal findings.

18 It leaves aside -- and the seventh legal finding is no more than, as it

19 were, a deduction from the other six. So in a sense it's six legal

20 findings rather than seven. The other two are B and E which, we submit,

21 when looked at on their own, are insufficient to sustain this conviction

22 and which, in the course of argument later on, I will deal with on its --

23 on their merits.

24 I come now to chapter 2 and I'm going to touch now on matters

25 where it may be wiser, Your Honours, to go into, if we could, private

Page 613

1 session.

2 JUDGE WALD: Mr. Abell, before we do that, and we certainly will

3 accommodate that in the interests of witness protection, can you give me

4 an estimate of how long we're likely to be in private session on that?

5 MR. ABELL: That's, if I may say so, a very good question. I

6 would have thought possibly up until -- possibly up until the luncheon

7 adjournment, quite possibly.

8 JUDGE WALD: Do you think you can cover all of the private session

9 so that for the convenience of everybody when we reassemble, we can be

10 back in public session?

11 MR. ABELL: Yes. I do hope so, yes.

12 JUDGE WALD: All right. Madam Registrar, can we go into private

13 session.

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Page 622

1 JUDGE WALD: Open session. Go ahead.

2 MR. ABELL: When I say this, I certainly don't mean it offensively

3 to anybody, but perhaps Witness ADA has generated more heat than light in

4 as far as the respondent's brief is concerned. Forgive me, but peppered

5 as it is with subjective comments as to that particular witness, we have

6 done our best, on behalf of Vlatko Kupreskic in the pleadings that we have

7 made, to be objective, realistic, and clinical in the pleadings that we

8 make.

9 Features of his evidence and the witnesses called by the

10 Prosecution to rebut him have been extensively argued in the pleadings,

11 and I don't intend to take up time by rehearsing those detailed arguments

12 now. I don't believe in the time available to me I could do them

13 justice. I'm going, instead, to try to restrict myself to making some, as

14 it were, headline points about Witness ADA. These may be, not

15 exhaustively, but these may be the key points as far as he is concerned.

16 Firstly, it's important, we submit, if I can use this slang phrase

17 for a moment, to keep one's eye on the ball - I'm perhaps mixing my

18 similes or metaphors - and to look at the overall picture. Let us not

19 forget that Witness ADA, both in a statement which was available at the

20 trial and in the evidence that he gave on the Rule 115 hearing,

21 incriminated two other people in the dock in this appeal. We submit that

22 it is difficult to see why he should do any such thing if he has come to

23 this court to lie.

24 It is, secondly, important to remember that ADA was a Muslim whose

25 family were victims in the appalling events which took place on the 16th

Page 623

1 of April. He lost his own father in what took place. It is again, we

2 submit, difficult to see why he should come to this court to lie about

3 somebody who, if he is telling deliberate lies, he would presumably know

4 to be guilty of the crime of which he was convicted.

5 Those two difficulties are easily resolved, in our submission, if

6 one looks at ADA in the way that we ask Your Honours to do. The answer

7 becomes very simple if one concludes that the reason he is here is because

8 he's come here to tell the truth. If somebody did something and he knows

9 it and they're guilty of something, he doesn't shy away from saying so;

10 alternatively, if someone isn't or wasn't where they were allegedly

11 sighted, he doesn't shy away from saying that either.

12 It may well be that he is a man whom some would say has an, to put

13 it mildly, eccentric manner. But in our submission, witnesses can be

14 eccentric. Witnesses can sometimes be colourful in the way they describe

15 incidents, maybe even sometimes exaggerate, for example, drunkenness or

16 behaviour, but that doesn't mean that on fundamental issues, they haven't

17 come to this Court to tell the truth. And that is how we ask Witness ADA

18 to be viewed. If he is or may be telling the truth, then he, too,

19 thoroughly undermines the evidence of L, M, and O, and supports the

20 evidence of the witness that I dealt with in the last chapter on this

21 topic.

22 The Prosecution, in their response, seek to, as it were, divide

23 and conquer in their assessment of ADA and AT. I'll deal with it, I

24 believe I can deal with it in this way, they -- their argument runs thus:

25 If soldiers were seen by ADA late at night on the 15th of April as,

Page 624

1 according to AD they were, in the cluster of houses which include Branko

2 Kupreskic house, I stress again, a distance away from Vlatko Kupreskic's

3 house, that, they say, doesn't sit well a AT's evidence. That's why I say

4 "divide and conquer."

5 However, the real analysis, we submit, of the position is this:

6 Start by considering what was the evidence which went towards Vlatko

7 Kupreskic's conviction on Count 1 in relation to soldiers? The evidence

8 upon which he was convicted was the sighting by L, M and O, principally L,

9 of soldiers outside his, Vlatko Kupreskic's house, at dusk at about 6.00

10 to 6.30 p.m., not soldiers outside Branko's garage, a cluster of houses

11 apart from Vlatko Kupreskic's, several hours later.

12 ADA's sighting of the soldier at Branko's garage does not, on that

13 analysis, assist the Prosecution one jot as regards the appeal of Vlatko

14 Kupreskic. To put it very simply, it's a sighting in the wrong place and

15 at the wrong time as regards the material upon which Vlatko Kupreskic was

16 convicted.

17 As regards Witness L, not only is there the evidence, the

18 additional evidence which casts grave doubt upon the circumstances of the

19 sighting of the soldiers and Vlatko Kupreskic, and I refer to AT and ADA,

20 but there have to be added -- this is the last part of this chapter before

21 we rise for the luncheon adjournment -- there has to be added these other

22 factors. Firstly, the Prosecution's decision which remains an unexplained

23 position as to why he was not called, this is Witness L, to deal with what

24 he said about the defendant who was acquitted, Papic, in relation to a

25 charge of murder no less where a clear statement from L implicating Papic

Page 625

1 in the murder was available. For some reason, and we simply don't know

2 why, the Prosecution decided not to call L on that. We submit this: that

3 that must cause a question mark to loom large over L.

4 Secondly, and this is more a point on the evidence, it's an

5 identification point. The situation is this: L claimed to have seen

6 Vlatko Kupreskic together with Mirko Vidovic and another outside his house

7 at about dusk -- outside the shop, sorry, at about dusk just a few yards

8 away from the house, on the evening of the 15th, the early evening of the

9 15th.

10 That identification heavily disputed by Vlatko Kupreskic, was

11 relied upon by the Prosecution. This is the point. The Defence at trial

12 were able to prove, we submit, beyond paraventia that Mirko Vidovic simply

13 could not have been there. Documents were produced at trial, an HVO

14 travel permit, his passport with stamps in it, and a certificate from

15 Frankfurt which comprehensively established that at the material time,

16 Mirko Vidovic was in Germany and therefore could not have been sitting

17 outside the Sutra shop next to Vlatko Kupreskic's house in Ahmici.

18 Now, in our submission, bearing in mind that Mirko Vidovic is

19 another close neighbour, someone who would have been known well to L,

20 bearing in mind that it was not challenged as things turned out in the

21 trial that that was correct, that Mirko Vidovic was, in fact, in Germany,

22 we are left with this situation: A disputed identification of Vlatko

23 Kupreskic by L made at the same time as effectively an admitted

24 misidentification of somebody that L knows just as well as Vlatko

25 Kupreskic. That, alone, must cast considerable doubt upon the correctness

Page 626

1 and reliability of L's disputed identification of Vlatko Kupreskic.

2 It is noteworthy, of course we accept that not every single last

3 subclause of evidence needs to be trotted out in a judgement, it is worthy

4 of note, perhaps, that this was a pretty important point, this Mirko

5 Vidovic misidentification, and it did not find its way into the judgement

6 of the Trial Chamber. We submit that that is, perhaps, significant. He

7 was, we submit, a central witness to the proper evaluation of the

8 purported identification by Witness L.

9 I hope that's a convenient moment. That's the end of Chapter 3.

10 JUDGE WALD: Thank you. That's a most convenient moment.

11 By my reckoning, you have about 35 minutes left for your case when

12 you return. We would now adjourn for lunch until 2.30. That's just under

13 an hour and a half, but I think that's an easier time for everybody to

14 remember. We will reassemble at 2.30.

15 --- Luncheon recess taken at 1.07 p.m.











Page 627












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Page 628

1 --- On resuming at 2.34 p.m.

2 JUDGE WALD: Good afternoon, all.

3 Mr. Abell, I think you have about 35 minutes left for either you

4 or your worthy co-counsel.

5 MR. ABELL: Thank you, Your Honour.

6 Chapter 4 on my submissions on the appeal against conviction deals

7 with other miscellaneous evidence called by the Prosecution.

8 Witness B, first of all, a disputed sighting of Vlatko Kupreskic

9 outside the Hotel Vitez on the 15th of April. In our contention, great

10 care should be taken with this piece of evidence.

11 On the face of it, taken by itself, it is not, in our submission,

12 evidence which is capable of proving guilt against the appellant Vlatko

13 Kupreskic, especially given that Vlatko Kupreskic's Sutra supermarket as

14 opposed to the shop warehouse in Ahmici, a supermarket in Vitez is

15 literally just down the road in Vitez, nearby to the police station. It

16 discloses no, if I can put it this way, guilty activity on the part of

17 Vlatko Kupreskic. Of course, he disputed at trial, as he still does, his

18 presence there at that time, on that day.

19 It is, we submit, a problematic piece of evidence of a classic,

20 fleeting glance or fleeting glimpse identification, with all the

21 safeguards which are required in the leading case which is in our bundle

22 of authorities, which I won't refer to in extenso, of the Queen against

23 Turnbull, a leading case in English jurisdiction, as to how identification

24 evidence should be approached by a fact-finding tribunal. It was an

25 observation in a moving vehicle in difficult circumstances, some 30 yards

Page 629

1 distant from the person said to be observed. Hardly ideal circumstances,

2 we submit, in which to make a reliable identification.

3 Witness KL, a disputed sighting of Vlatko Kupreskic on a road on

4 the 15th of April. KL, of course, made another purported identification

5 of the appellant Vlatko Kupreskic which was rejected by the Trial Chamber,

6 and so again, we submit, great care needs to be taken in deciding that

7 this particular identification of Vlatko Kupreskic can be relied upon,

8 whereas the other identification of him, the Trial Chamber felt, could not

9 be. Again, a piece of evidence which, we submit, taken in isolation

10 really does not add up to evidence which could possibly sustain the

11 conviction of Vlatko Kupreskic.

12 Witness T, I mentioned earlier when I opened my submissions by way

13 of example. Witness T dealt with the alleged unloading of weapons in

14 October of 1992. The Defence case was that what may well have been being

15 unloaded was merchandise, bearing in mind that at the basement of Vlatko

16 Kupreskic's house, which is nearby to his warehouse shop, merchandise is

17 stored. So it wasn't an outright denial that no, this couldn't have taken

18 place, but possibly what was seen was misinterpreted by the witness.

19 It is in those circumstances significant that the distance between

20 Witness T and the activity she claimed to have observed was some 50

21 metres, and that she was unable, in evidence, to describe the type of

22 weapon. It is also significant that the purported observation took place

23 at dusk.

24 Startlingly, there was no cross-examination of Witness T to

25 challenge this point or to test the reliability of the observation. The

Page 630

1 Prosecution suggests that may have been for tactical reasons. We, with

2 the greatest of respect, reject that. It would, we submit, be counsel's

3 duty if there is a dispute, as there clearly was, because Vlatko Kupreskic

4 in evidence denied that this took place, to put that in cross-examination

5 and to test the accuracy or, conversely, unreliability of the purported

6 observation.

7 Unfortunately, that did not take place but we know, as I said,

8 that Vlatko Kupreskic denied the matter in his evidence in trial, at

9 trial. What does that evidence, we ask, really amount to taken by

10 itself? As I already said earlier on in my submissions, this was six

11 months pre the incident on the 4th -- on the 16th of April of 1993 at a

12 time when tension in the Vitez area was between Croats and Serbs, not

13 Croats and Muslims. We submit it is simply too remote a piece of evidence

14 taken by itself to persuade a Tribunal as to -- beyond reasonable doubt as

15 to guilt.

16 Witness H, the disputed sighting of Vlatko Kupreskic on the

17 morning of the 16th of April. The Trial Chamber significantly, we submit,

18 made no finding as to what Vlatko Kupreskic was actually doing, but

19 speculated, in our contention, really, by saying that the mere presence

20 without evidence of any actual activity such as participation was

21 sufficient, mere presence as proof of guilt or going towards taken with

22 other evidence proof of guilt.

23 I have been told that Witness H is heavily attacked, if I may use

24 that expression, by those who represent both Mirjan and Zoran Kupreskic

25 and that they will develop arguments as to the unreliability of Witness H

Page 631

1 who affects their clients significantly. So I will, if I may, adopt in

2 advance remarks and submissions as to the unreliability of Witness H, but

3 I underline in relation to that witness the fact that the Trial Chamber

4 simply could not glean or deduce what it was said that Vlatko Kupreskic

5 was actually doing at that time.

6 It is possible, possible, given that he indicated in his evidence

7 that there was a point in time when he had to leave the shelter to where

8 he had fled with his wife and children, that he had tried to see what had

9 become of his father and, therefore, came out of the shelter in order to

10 see what was going on and whether he could render assistance to his

11 father. So it is possible that his presence was, in fact, innocent as

12 opposed to guilty, significantly in that regard as I have already said,

13 and I'm sorry to have to repeat myself, significantly in that regard, he

14 is not said to go doing anything specific.

15 I now turn, Chapter 5 to the issue of the police evidence. This

16 evidence seems to have the -- crept up, if I can put it that way, on the

17 Trial Chamber as the trial unfolded. It's important to remember that what

18 it really emanated from was simply two pieces of paper, the exhibit

19 numbers that I have already given.

20 It would be our submission that the importance which the Trial

21 Chamber eventually gave to that police evidence in their judgement may not

22 have been apparent to any of the parties during the course of the trial.

23 That it was, in our submission, in the final analysis, or appears in the

24 final analysis to have been regarded as evidence of importance in the

25 judgement which coloured the way in which Vlatko Kupreskic was perceived

Page 632

1 by the Trial Chamber. And it's as against that shading of him as somebody

2 who, in some suspicious or murky nebulous way was connected with the

3 police that appears to have, as it were, breathed life into the other

4 aspects of the circumstantial and identification evidence which I've

5 already referred to and effectively, if I can use that phrase, put a

6 guilty gloss on pieces of evidence which might otherwise might have been

7 considered to be relatively innocuous or make weight pieces of evidence.

8 It is why, in our submission, one has to tread with great care

9 with the police evidence and, of course, this is evidence where we submit

10 that the additional evidence we have been allowed to present to the

11 Appeals Chamber has gone a long way to explain and neutralise the effect

12 of that police evidence and, indeed, to support what the appellant at

13 trial was really left on his own to say unsupported. I refer, of course,

14 to the evidence of ADB, ADC, and Miro Lazarevic. It puts that evidence in

15 a new light.

16 We stand by our written submissions. It is of great significance,

17 we submit, that that evidence served as it was, filed as it was, I

18 apologise, on the 5th of September last year was not evidence which was

19 rebutted in any way by counter-evidence called by the Prosecution. And

20 indeed during the course of the presentation of that evidence, Your

21 Honours may remember, that certain matters were put in cross-examination

22 to the witnesses which resulted in our having faxed over from Croatia a

23 monthly or, I'm sorry, a wages logbook, the exhibit reference is

24 AD/14/3/ter which supported what one of the witnesses had been saying as

25 to the way in which the system of payment and the system of logging for

Page 633

1 work done was calculated.

2 In our submission, that was a real glimpse of the voracity of the

3 evidence which we called as additional evidence to deal with that topic of

4 this appellant's involvement with the police, that he truly was an

5 individual who was working part time to put an inventory together. He was

6 juggling that with his full-time job in the Sutra shop and his business,

7 no training was undertaking. The exotic job descriptions which appeared

8 on some of the documentation could not have been undertaken without

9 training and, indeed, Your Honours will remember that we were able to call

10 evidence which demonstrated the palpable inaccuracy on one of the

11 documents upon which the Trial Chamber placed great reliance. There were

12 several names on that list, Vlatko Kupreskic's included, where there

13 simply was a complete error in relation to the nature of the job that was

14 put down on the piece of paper.

15 We submit that had the Trial Chamber had the benefit of that

16 additional evidence, a doubt would have been cast upon the cogency of

17 those two pieces of paper such that the Trial Chamber would have been in

18 doubt as to being able to act on it. We submit that with that, the

19 picture changes radically; that the murky, nebulous, empty gloss which is

20 put on other pieces of evidence simply falls away.

21 My last chapter is really by way of conclusion. We submit that

22 the effect and impact of the additional evidence is to cast doubt upon,

23 firstly, the correctness of the most important Prosecution witness, L, in

24 particular, M and O. They go to the heart of the case. Take them out of

25 the picture and one is really left with very little.

Page 634












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Page 635

1 Further, the additional evidence as to the appellant's involvement

2 with the police confirms the appellant Vlatko Kupreskic's account and

3 neutralises that evidence, and again takes away what the Trial Chamber, by

4 the time of the judgement, seemed to have considered to have been a

5 significant plank in the case against him, taking that away, taking away

6 witnesses that go to the heart of the evidence, L -- to the heart of the

7 case against him, L, M, and O, and one frankly is left with very little.

8 In our submission, the reasonable and obvious question, with what

9 is left, could a reasonable tribunal, left with the remnants of the

10 evidence, be sure of guilt? In our submission, the answer to that must be

11 no, there could or might be a doubt on the evidence that remains.

12 To come back to my spider's web analogy, sufficient of the threads

13 of that spider's web have been broken by the additional evidence that the

14 web, in our submission, disintegrates, and this conviction cannot be

15 sustained.

16 The first finding that the Trial Chamber made in relation to

17 Vlatko Kupreskic is at paragraph 462. The Trial Chamber takes into

18 account the undisputed evidence that, prior to the conflict, this accused

19 was on good terms with Muslims and displayed no nationalist or ethnic

20 prejudice. "The Trial Chamber also takes into account the evidence, again

21 undisputed, that he suffers from a congenital heart condition and as a

22 result was excused from military service." That is an instructive insight

23 into this particular appellant's background. In our submission, in his

24 case, this appeal should be allowed.

25 I hope that in those submissions I have answered the questions

Page 636

1 that were posed of me, or potential questions that were posed of me before

2 I embarked upon my submissions in relation to the appeal against

3 conviction. Of course, I am willing to assist if there are any others,

4 just before I hand over for the final chapter to my worthy co-counsel,

5 Mr. Livingston, to deal with sentence.

6 JUDGE WALD: Mr. Abell, I think that we'll hear Mr. Livingston,

7 and then if there are any questions on the entire submission of your

8 client, we'll hear those.

9 MR. ABELL: Certainly.

10 MR. LIVINGSTON: May it please Your Honours, can I start by making

11 an apology to His Honour Judge Pocar who I simply cannot see from where I

12 stand at all. But perhaps it's more important what my words say than what

13 I appear like.

14 Your Honour, this is Chapter 7, sentence, and I'll try and rattle

15 through it. I think I've got about 13 minutes or thereabouts.

16 THE INTERPRETER: Mr. Livingston, please speak into the

17 microphone.

18 JUDGE WALD: Mr. Livingston, will you speak into the microphone.

19 The translators are having some difficulty.


21 Our submission in a nutshell is this: The sentence imposed on

22 Vlatko Kupreskic on Count 1 was one of six years. We say that that was

23 too long. We don't analyse the situation, as do the Prosecution, in terms

24 of looking at each of the arguments set out in the appellant's brief on

25 sentence individually. We say that the proper approach is to look at all

Page 637

1 those arguments, and that if you look at all those arguments together,

2 take them together, they indicate that if the Trial Chamber had taken them

3 into account and balanced them up properly, the sentence would have been

4 shorter.

5 It is, of course, to be noted at the end of the judgement, it's

6 paragraph 854 of the judgement, that the Trial Chamber set out what

7 factors they took into account. It's 854 to 857. There aren't really

8 very many of them.

9 There's a recital in paragraph 854 of the finding of guilt,

10 there's a very brief summary in the following paragraph of the basis of

11 it, and then it's noted in the following paragraph that he was on good

12 terms with Muslims and displayed no nationalist or ethnic prejudice, and

13 then there's a reference to the fact that he didn't surrender, which is,

14 in a sense, not a point in his favour in the sense that it was found to be

15 mitigation for the other defendants.

16 Let me say straight away that one sympathises with any court which

17 is not assisted by counsel in reaching its conclusions on sentence, and

18 sadly that was the case in this particular case.

19 Your Honour, I think there's no dispute that the starting point

20 for consideration of sentence is Article 24, and in particular, the main

21 factors which you have to look at in Article 24(2) are the gravity of the

22 offence and the individual circumstances of the convicted person. There

23 are other matters, of course, dealt with in Rule 101, but those are

24 perhaps the primary matters.

25 Can I say that in the interests of brevity, I can't deal with

Page 638

1 every point in the brief. I adopt the brief; I adopt what my learned

2 friend Mr. Clegg said in morning in relation to raising matters which

3 weren't raised before the Trial Chamber.

4 Your Honour, having dealt with the contents of Article 24, one

5 comes to the point that is raised in paragraph 5 of the appellant's brief

6 on sentence, which is that the Chamber should have regard to the need to

7 develop a principled sentencing scale or gradation which reflects such

8 factors as (a) the place or level of the defendant in the scheme of things

9 for which he falls to be sentenced; and (b) his actual involvement in the

10 crimes committed.

11 That's something which the Prosecution take issue with. They deal

12 with it, as I understand it, at paragraph 38.11 of their respondent's

13 brief, and they say, "no hierarchy of relative criminal culpability," and

14 then they purport to explain why. Well, I have to say the weight of

15 authority from this Tribunal is against them on that. The two main cases

16 dealing with this gradation point are the Tadic Appeals Chamber decision

17 and the Appeals Chamber decision in Aleksovski.

18 In the Tadic appeal decision, the matter is dealt with at

19 paragraph 51. And again I mention that particularly because it appears

20 from the Prosecutor's footnote that the reference that they're referring

21 to as "Tadic Sentencing Judgement, para 70," that doesn't seem to be the

22 right reference. It's some paragraphs 51 to 58.

23 But looking at paragraph 51, the submissions made by the appellant

24 in that case about the need to develop a recognisable sentencing tariff or

25 range of sentences are set out, and at paragraph 55, these words occur:

Page 639

1 "In the opinion of the Appeals Chamber, the Trial

2 Chamber's decision, when considered against the

3 background of the jurisprudence of the International

4 Tribunal and of the Rwandan Tribunal, fails to adequately

5 consider the need for sentences to reflect the relative

6 significance of the role of the appellant in the broader

7 context of the conflict in the former Yugoslavia."

8 And they go on in paragraph 56 to refer to the heinous nature of

9 the defendant's crimes, but pointing out that his level in the command

10 structure, compared to that of his superiors, was low. And the matter is

11 also dealt with in paragraph 184 of the judgement of the Chamber in the

12 Aleksovski case where it's specifically said, "The Trial Chamber was right

13 to emphasise the need to establish a gradation of sentencing," and they

14 refer to the Tadic decision which has been made before. So in my

15 submission, the appellant is on strong ground when he says that that is

16 the path which the -- this Chamber should follow in dealing with sentence

17 in this case. In other words, try and place this appellant in his proper

18 place in the scale of things in the conflict in the former Yugoslavia.

19 They also say in the same paragraph, Prosecution 38.11, "It may be

20 expected that the conduct of aiding and abetting will normally be regarded

21 as less grave than the conduct of actually committing the crime, but this

22 will not necessarily always be the case."

23 It's very hard to see how that proposition stands up at all and

24 they go on to say as a purported example, "A person who is convicted of

25 ordering the commission of a war crime is equally guilty with the person

Page 640

1 actually committing it," but the whole point of that, surely, that the

2 person convicted of ordering it is a principal, and convicted as a

3 principal or as a co-perpetrator or whatever word you want to use, and not

4 as an aider and abettor. So in my submission, that argument doesn't

5 assist the Prosecution at all, and the proposition which the appellant

6 puts forward and that the conduct of an aider and abettor will always be

7 less serious than that of a principal stands, and should be applied in

8 this particular case.

9 Paragraph 38.14 of the Prosecution's submissions say that,

10 "determination of the sentence," submits that, "The determination of what

11 sentence would be commensurate with inherent gravity of the accused

12 conduct should not be made by comparison with the alleged acts of others

13 known or unknown to the Trial Chamber."

14 Well, again, I submit that that is quite at odds with the approach

15 of this Chamber in both Tadic and Aleksovski, and it's very difficult to

16 see how you can form any sort of gradation of sentencing without having

17 regard to this appellant's conduct, and comparing it with the alleged acts

18 of others known and unknown to the Trial Chamber.

19 So in my submission, when one looks at the point that's made in

20 the following paragraph by the Prosecution relying on the Celebici appeal,

21 it's very it difficult to see that how that has any application to this

22 either because they quote this passage, they say that: "A gradation based

23 on the accused's level in the overall hierarchy in the conflict, and then

24 a quote from the case, '... does not entail a low sentence for all those

25 in low level of the overall command structure. On the contrary a sentence

Page 641

1 must always reflect the inherent gravity of the crime which requires

2 consideration of the particular circumstances of the cases as well as the

3 form and degree of the participation of the accused in the crime.'"

4 Well, with respect to the Prosecution, the appellant, the

5 appellant is submitting exactly what the Appeals Chamber in Celebici

6 said. He's not saying what the Prosecution seem to think that he's

7 saying. This appellant -- it's never said been said that this appellant

8 was in a low level of -- in the command structure. He never had any

9 command position at all.

10 What is being said is that in looking at his position in the

11 round, he is a low-level defendant with a very low level compared to

12 others of responsibility for, in this case, what happened in Ahmici. He's

13 an aider and abettor, and his role in aiding and abetting whilst, of

14 course, serious, mustn't be elevated to a level which it doesn't warrant.

15 But what we are saying is you ought to look at the gravity of the offence,

16 and if you do that, looking at his level of responsibility, he is a

17 low-level defendant who should be sentenced as such.

18 The Prosecution then go on to deal with the issue of sentences in

19 other cases, that's paragraph 38.18. I'm rapidly running out of time.

20 I'm being told I've got three minutes left. Let me simply say that I rely

21 on the cases which are set out in the appellant's brief on that.

22 In my submission, it is strongly arguable that you if you look at

23 the facts even in this case for Zoran and Mirjan Kupreskic, Zoran has, of

24 course, been sentenced on the basis of a low-level command, but they are

25 both sentenced, paragraph 852 of the judgement,"... as principals guilty

Page 642

1 of persecution for the expulsion of Muslim civilians, individuals

2 including children, from Ahmici, Santici, and its environs, destruction of

3 Bosnian Muslim homes and property, and their active presence in the area

4 whilst armed."

5 What we say is if even eight years is a proper sentence for Mirjan

6 Kupreskic, there is not an adequate reflection of the lesser

7 responsibility of Vlatko Kupreskic in all the circumstances.

8 I haven't said anything about the other point about the minimum

9 sentence, however, I think that's probably adequately dealt with in the

10 written briefs. I don't think I can add very greatly to that.

11 Mr. Pavkovic has dealt partly with the SFRY law. I rely on

12 Article 154 in the old SFRY sentencing law about persecution, and I do say

13 that the fact that the essence that that is racial persecution is very

14 relevant to this case, because persecution in this Tribunal is equally

15 fundamentally based on racial discrimination. That's the reason why the

16 acts have been committed. So in my submission, one shouldn't ignore that

17 as a factor.

18 Well, I think I'm now probably about 30 seconds over time. Unless

19 there are any other particular matters which Your Honour and any of your

20 colleagues wish me to deal with, those are my submissions.

21 JUDGE WALD: Thank you, Mr. Livingston. Let me see if my

22 colleagues have questions for either Mr. Abell or Mr. Livingston.

23 Mr. Abell, I'm sorry, I have two questions for you.

24 MR. ABELL: I shall endeavour to assist.

25 JUDGE WALD: I want to make sure that I understand. When you talk

Page 643

1 about the evidence before the Trial Chamber, that the Trial Chamber

2 actually heard, not the 115 evidence that we did, you refer to it several

3 times as tenuous.

4 Are you -- and you relied quite strongly on the light in which

5 that evidence should newly be perceived in view of the evidence that came

6 in under 115. But are you making a separate argument that the evidence

7 that was before the Trial Chamber was insufficient to permit a conviction

8 of guilty for those crimes for which he was held responsible regardless of

9 the 115?

10 The reason I ask this, and then you can answer it in one, is it

11 that Mr. Clegg's answer, and I think you've adopted his general

12 interpretation of the way 115 should be interpreted, if, indeed, 115

13 evidence meets the standard of the "could" or "might," then, according to

14 Mr. Clegg, in most cases, the fall in the middle, that don't fall clearly

15 credible or clearly incredible, you need to remit to the Trial Chamber.

16 Is that something that you want for your client who is at the same

17 time asking to have a minimum sentence fit, or how do you bring those two

18 together?

19 MR. ABELL: There are two issues, in our submission, encapsulated

20 in Your Honour's question. The first issue is this: How do we put the

21 tenuous aspects, as I've referred to it? Ground A of our grounds of

22 appeal, and I didn't want to spend time elaborating it too much in my oral

23 submissions, but we do, in the alternative to relying on the Rule 115

24 evidence adduced, we do, in the alternative, say that based on the

25 evidence available before the Trial Chamber, there was not enough evidence

Page 644

1 for the Trial Chamber safely to conclude beyond reasonable doubt that this

2 man was guilty even as an aider and abettor of persecution. So it is an

3 alternative ground of appeal, ground A in our grounds of appeal.

4 The second -- I hope that deals with the -- as it were, Your

5 Honour's primary question.

6 JUDGE WALD: Yes, I know that you had said that in your brief.

7 I just wanted to make sure that that was still your position.

8 MR. ABELL: Yes, and as I say, we rely on our pleadings and

9 really the oral argument is complimentary to it. But can I deal with the

10 second issue which is this: Going back in time, at the time that we filed

11 our Rule 115 application, in the discussion on the law in that Rule 115

12 application, and I may need a little time to hunt out the precise

13 paragraph - I'm sure I will be able to furnish it for Your Honour tomorrow

14 if not later this afternoon - we do deal with the issue as to what should

15 happen and we did, at that stage, suggest that it may be that if Rule 115

16 evidence is admitted, that at that stage, the matter should be remitted to

17 the Trial Chamber. But in fact, the course that was taken by the Appeals

18 Chamber was to move straight to the -- was for the Appeals Chamber to hear

19 the additional evidence and move straight to the appeal.

20 So we would submit that there were two routes that could have been

21 taken arguably. One was to remit to the Trial Chamber once the Rule 115

22 additional evidence was admitted and let the Trial Chamber, as it were,

23 grapple with the evidentiary issues. The other route is the route that

24 has been taken which is that the Appeals Chamber listens to the additional

25 evidence and then is left with the position that we are now in, and I

Page 645

1 adopt what my learned friend Mr. Clegg was saying, which is this: that

2 when you haven't heard the evidence available to the Trial Chamber, you

3 haven't seen the demeanour of the witnesses, you can't really make an

4 assessments or an evaluation of that. You are back to the question, in

5 our submission, Your Honours are back to the question of simply this:

6 Might or could a reasonable Trial Chamber with this additional evidence

7 have had a doubt? That's what it comes to. Might they have reached a

8 different verdict?

9 JUDGE WALD: But Mr. Abell, you're asking us to make that

10 decision; is that right?

11 MR. ABELL: Yes. Yes. That is the ultimate decision. And may I

12 actually cite an authority? Will Your Honours bear with me. This, in

13 fact, is a very recent -- I'm sorry, it's not that recent, it's about a

14 year old. It's the case of Michael Davis, Rafael Rowe, and Randolf

15 Johnston. It is a somewhat celebrated case in the United Kingdom. A copy

16 will be handed up to Your Honours. It's on point for the particular

17 question that you ask. This, in fact, is reported at 2001, 1 Criminal

18 Appeal Reports at page 115. The photocopy doesn't reveal the page

19 number.

20 Can I just cite this particular passage. It's paragraph 95:

21 "In our view, the case against all three appellants was

22 formidable. The evidence against Rowe on the counts he

23 faced was overwhelming. However, we are bound to follow

24 the approach set out earlier in this judgement; namely,

25 assuming the irregularities which we have identified had

Page 646

1 not occurred, would a reasonable jury have been bound to

2 return verdicts of guilty? In all conscience, we cannot

3 say that it would. At this distance, we simply cannot

4 assess the impact which the undisclosed material might

5 have had on the case for and against Johnson."

6 In that case, it was the failure by the Prosecution to disclose

7 material which they had to the Defence. That was absent at the trial.

8 The analogy, of course, here is the additional evidence that you had

9 the -- Your Honours have had the benefit of hearing but, of course, the

10 Trial Chamber didn't. And it's that --

11 JUDGE WALD: I think you've --

12 MR. ABELL: -- that blunt question.

13 JUDGE WALD: -- very amply answered my question, Mr. Abell.

14 MR. ABELL: I'll make sure that a copy of this authority is put

15 before Your Honours.

16 JUDGE WALD: Thank you. We will now move on to Mr. Radovic.

17 Now, I understand that you and the counsel for Mirjan have decided

18 that you will split the amount of time which is allocated to each of you,

19 not necessarily in half but according to whatever you have worked out. So

20 this is what I think we will do. It is now 3.15. I think we will give

21 you, in whatever allocation you have decided among yourselves, the next

22 two hours, and we will adjourn at 5.15. At that time, whatever time is

23 left over, which by my accounts will be about 50 minutes, we'll continue

24 in the morning. So you can divide -- knowing that, you can divide up the

25 time as you please. Go ahead.

Page 647

1 MR. RADOVIC: [Interpretation] In my previous remarks, I started

2 setting out my objections to the judgement, and I would like to proceed

3 along those lines.

4 I already said that the disposition should be followed, so I don't

5 want to go back to all of that; however, I should like to go back to the

6 judgement itself and to the trial. I think that the judgement does not

7 meet all the standards required of writing a judgement, because I think

8 that it has to be in line with the transcript or, rather, that portion

9 that is being quoted. Because we cannot say that, on the basis of the

10 quoted part of the transcript, one comes to a certain conclusion, and then

11 if you actually look at the transcript, there is a completely different

12 kind of inference that can be made.

13 In addition to everything else, one of the basic ways of

14 conducting proceedings is that this can be done only on the basis of

15 evidence that was presented during proceedings. So if the Court says --

16 if the Court says, "Right, we have established this or that," or "we have

17 not established this or that," this has to be corroborated by facts, by

18 evidence that was presented during the proceedings; not to come to certain

19 conclusions on the basis of whatever during the proceedings. I shall go

20 back to this a bit later.

21 Then, furthermore, the Court did not act according to Article 21

22 of the Statute; namely, did not uphold the fact that all persons should be

23 equal before the Court.

24 The best proof of this is footnote 589. In this footnote, 589,

25 which is part of the judgement and which was written in a way which we

Page 648

1 find incredible, it says that Defence witnesses are not believed or,

2 rather, a certain fact is not established only because it was established

3 by the Defence witnesses; although the Prosecutor did not challenge this

4 in any way and present any counter-evidence.

5 If we were to proceed along those lines, if we look at the

6 judgement itself, then everything that the Defence has proven during

7 proceedings, especially with respect to Mirjan and Zoran Kupreskic, was

8 pointless, because whatever we did or did not do, the Court did not

9 believe us because, according to this footnote, the Defence witnesses are

10 simply not believed.

11 Furthermore, the Trial Chamber does not uphold that principle in

12 terms of 162, paragraph 162, of the judgement. What we said was that the

13 conflict, on the 20th of October, 1992, was provoked by the Muslims;

14 however, the Trial Chamber bore in mind their final conclusion, and their

15 final conclusion was that in Ahmici, there was not a unit of the army of

16 Bosnia-Herzegovina; and in order to avoid a conclusion that is contrary to

17 the set objectives, so to speak, the Trial Chamber concludes, in Article

18 162, the following, I quote: "Some local Muslims and Croats either took

19 part in the conflict or assisted those who were fighting." Before that,

20 it was also ascertained in 162 that this conflict was provoked by the

21 Muslims.

22 So this conclusion by the Trial Chamber, both in respect of the

23 Croats and in respect of the Muslims, is in direct contravention to the

24 evidence produced; namely, in relation to the Croats, not a single

25 Prosecution witness said that the Croats from Ahmici took part in the

Page 649

1 conflict, except that one or two witnesses claimed that only in respect of

2 Dragan Papic. No one else. And Dragan Papic has been acquitted.

3 As for who the Muslims were, the members of the BH army who took

4 part in the conflict of the 20th of October, we are relying only on

5 Prosecution witnesses so that we would not bring ourselves into the

6 position of relying upon our own witnesses, because the Trial Chamber did

7 not believe Defence witnesses.

8 For example, witness Abdulah Ahmic, then Witness B, Mehmed Ahmic,

9 Fahrudin Ahmic, Witness N, Witness V, Witness AA, and many other witnesses

10 who spoke about this subject said that members of the BH army who caused

11 the conflict on the 20th of October, 1992 were exclusively inhabitants of

12 the Muslim part of Ahmici, who were assisted by villagers from the

13 neighbouring village of Vrhovine.

14 In addition to that, the Trial Chamber claims in 125 and 511,

15 these two respective paragraphs of the judgement, that the Defence

16 produced evidence on crimes that were committed by the Muslims against the

17 Croats before the 16th of April, 1993 with a view to justifying the crime

18 that was committed against the Muslims in Ahmici. Not at a single point

19 did the Defence counsel either for Zoran or Mirjan Kupreskic produce

20 evidence for the reasons that are mentioned in the disposition of the

21 judgement.

22 When the Presiding Judge actually asked us why we are producing

23 this evidence, we explained the reasons why we were doing that, and now

24 I'm going to repeat these reasons. The reason for producing evidence

25 concerning Muslim crimes against the Croats were the following: to justify

Page 650

1 the state of mind of the accused at the moment when they received

2 information that they were supposed to evacuate their families, because

3 there was information that, on the 16th of April, 1993, the Muslims would

4 attack the Croats.

5 The Kupreskics were at such a low level, or, rather, they were not

6 part of the military or civilian authorities at all; therefore, they could

7 not have accurate information; therefore, they got information from Croat

8 sources and they took that information as correct. If this information

9 had been correct -- or, rather, they thought this information was correct

10 in view of what they knew concerning previous incidents, and that was the

11 only reason why we produced this evidence.

12 There's another interesting detail showing different approaches to

13 evidence with regard to Prosecution Exhibit P353. In paragraphs 342 and

14 377 of the judgement, it is claimed that this is a document that contains

15 a list of the reservists of the military component of the HVO.

16 In paragraphs 421 and 773 of the judgement respectively, on the

17 basis of this same document, it is established that the accused was an

18 active member of the HVO.

19 What is an active and what is a passive or, rather, what is a

20 reserve member of the army? I am going to refer to that when I go back to

21 the facts. This is a simple fact, and during the trial itself, we had

22 long debates on this. At one point, we were already talking about active

23 reservists and reserve activists, and obviously the two are contradictory

24 and these two notions cannot be brought together in any way.

25 In addition to that, in paragraph 423 of the judgement, the Trial

Page 651

1 Chamber did not carry out its duty in terms of establishing the exact

2 state of affairs in order to be able to establish beyond any reasonable

3 doubt certain relevant facts.

4 In paragraph 423, it is stipulated that both accused persons,

5 perhaps on the 15th of April, were at work, and perhaps in the evening,

6 they were the guests at the house of Ivica Kupreskic. On that day, in the

7 early evening hours, Ivica Kupreskic's wife had arrived from Germany,

8 where she had enjoyed the status of a refugee. The Trial Chamber had to

9 make its views quite clear, whether they were at work or whether they were

10 at Ivica Kupreskic's. Perhaps they were; perhaps they weren't. And this

11 is not the way a judgement should read.

12 However, what is particularly interesting is how it is being

13 expounded that already on the 15th of April, the accused knew what would

14 happen on the 16th of April. In paragraph 423 of the judgement, it is

15 said that they had to know about that, and then in paragraph 773 of the

16 judgement, it is not said that they had to know about it, but it was said

17 that they simply knew about it.

18 I already said that during that these proceedings, the same facts

19 are evaluated in different ways in the case of different accused persons.

20 So I would like to refer to statements made by protected Witness AT. I'm

21 not going to refer to the substance of this person's statement at great

22 length, I'm just going to talk about the possibility of using this

23 statement; that is, the possibility that we had, the Defence counsel for

24 Mirjan and Zoran Kupreskic. And I don't know whether we have to move into

25 private session in order to be able to speak about that at all.

Page 652

1 JUDGE WALD: Mr. Radovic, I'm somewhat guided by your own

2 appraisal of what you're about to say. I think we probably should err on

3 the side of caution if you think that it's likely to get into anything

4 identifying or closed material. If you think it's not, I'll go along with

5 your judgement at this point.

6 MR. RADOVIC: [Interpretation] Very well. I think that in this

7 part there is no need for that.

8 JUDGE WALD: All right. You'll be careful.

9 MR. RADOVIC: [Interpretation] There is one thing I learned, and

10 that is that I am always guilty.

11 JUDGE WALD: I said "careful," not "guilty," Mr. Radovic.

12 MR. RADOVIC: [Interpretation] When using the statement of Witness

13 AT, different standards were applied in the case of different accused, and

14 also the Defence counsel for Vlatko Kupreskic could not use that part of

15 the transcript. However, we proceed from the decision made by the Trial

16 Chamber on May 29th, and that is when Vlatko Kupreskic expressed their

17 belief that the transcript could be used by both parties.

18 We believe that on the basis of this ruling of the Chamber, we can

19 also use the these statements and -- or rather these parts of the

20 transcript so we are going to use them. And I believe that this ruling by

21 the Appeals Chamber that others can also use these statements is in line

22 with beneficium cohesiones which implies that if one the accused can draw

23 on something, then the other accused also have the right to do that. If

24 this interpretation of ours were not to be accepted then, again, there

25 would be an absurd situation.

Page 653

1 Actually, with the assistance of the statement of the mentioned

2 witness, the credibility of the witnesses who speak about the presence of

3 soldiers in the vicinity of the Kupreskic house, and then without the

4 statement of AT, these statements would be believed. But in relation to

5 the third Kupreskic, it would not be believed. There can only be one

6 truth. There cannot be one truth for -- in one case that the soldiers

7 were there, or another truth, in other case, that the soldier were not

8 there.

9 In addition to that, in the judgement, different witnesses are

10 approached in a different manner. For example, the Trial Chamber did not

11 believe Witness C because at the given time, this person was young and

12 under stress. This is a person who identified a person whom he or she saw

13 during the day. For the same reason, Witness G is not believed either.

14 Witness KL, who was relevant to ten counts of the indictment, is

15 not believed. It is not that the witness is not believed, but the Trial

16 Chamber says that he was confused in terms of the identification although

17 he saw these persons whom he identified under electric light. On the

18 other hand, the Chamber believes Witness H who identified persons in her

19 house where the lights were not on irrespective of the many objections

20 that were raised with regard to the authenticity and the truthfulness of

21 her statement.

22 The Trial Chamber does not refer to most of the objections made in

23 respect of her testimony, but only some. Also, the Trial Chamber is

24 claiming something that does not correspond to the case itself. In 163,

25 it is claimed that the Muslims left the village and that the Croats did

Page 654

1 not. However, Zoran and Mirjan Kupreskic, through their own testimonies

2 and also through Defence witnesses, sought to prove and proved that they,

3 together with their families, left Ahmici and returned to their houses

4 only when the Muslims returned. Actually, they believed that they were

5 safe in their village only if, in that same village, their Muslim

6 neighbours felt safe as well. Without the safety of one, there could be

7 no safety of the other.

8 With respect of Witness H, I have to say something that the

9 Prosecutor is not going to like, and that is that we have reason to

10 suspect that the Prosecutor has not met his obligation stemming from Rule

11 68 of the Rules of Procedure and Evidence, namely: There has been no

12 exculpatory evidence presented. I would like to state the following: In

13 the system of criminal procedure in the former Socialist Federal Republic

14 of Yugoslavia, there were several authorities that would question a

15 witness. According to that system, it was not the investigators of the

16 Prosecution and of the Defence who would question witnesses. Witness

17 would be questioned by policemen.

18 In the case of Bosnia-Herzegovina, it would be the office for the

19 establishment of war crimes and also an investigating judge. That it was

20 so is shown by the fact of -- that Dijana Ajanovic, a senior investigating

21 judge from Zenica testified to that effect.

22 The first statement that we had from Witness H is the one that she

23 made before an investigating judge of the higher court in Zenica, and that

24 was in the month of December 1993, that is to say, about eight months

25 after events that she testified about. As opposed to her, her mother,

Page 655












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Page 656

1 Witness SA, and her aunt, Witness EE, and her grandfather, Witness KL, we

2 have records of police investigations that are dated immediately after

3 these refugees came to Zenica.

4 When they were first questioned by the police in Zenica, neither

5 KL or SA did not identify the perpetrators. So they explained why they

6 did not or, rather, they explained that the attackers wore caps over their

7 heads with slits for the eyes, and the nose, and the mouth. Because of

8 these caps, they could not identify anyone.

9 What is particularly interesting is that in separate interviews,

10 both KL and SA gave identical descriptions of the attackers in view of how

11 they had been masked. As for these first interviews, there is no such

12 record for Witness H. With regard to the two mentioned witnesses, there

13 are also statements that they made before the state office for the

14 establishment of war crimes of Bosnia-Herzegovina or, rather, the Muslim

15 part. However, as for Witness H, there is no such statement either.

16 Witness KL mentions Mirjan and Zoran Kupreskic for the first time

17 during the interview with the investigating judge in Zenica in October

18 1993. However, at that time, the witness does not say that he recognised

19 them. He says that there were two soldiers who looked like Mirjan and

20 Zoran Kupreskic the most. So he is mentioning them on the basis of

21 similarity, not in terms of identifying them with certainty.

22 Now, something really interesting happens. In the judgement in

23 which the Trial Chamber acquits Mirjan and Zoran Kupreskic with regard to

24 the events that took place in Witness KL's house, the Trial Chamber says

25 that KL is a truthful witness. However, because of conversations with

Page 657

1 others, this witness convinced himself that these soldiers were Zoran and

2 Mirjan Kupreskic and that, therefore, he mentioned that these were

3 soldiers who looked like them.

4 In addition, the Trial Chamber mentions that KL managed to

5 convince himself on the basis of conversations with his granddaughter,

6 Witness H. Despite the fact that until his statement given to the -- that

7 apart from his statement given to the investigating judge, we do not have

8 any statement that would be given by her.

9 Witness Dijana Ajanovic confirmed that the villagers of Ahmici

10 talked to each other about what they had been through, and that they made

11 certain conjectures as to who the attackers could be. When the Trial

12 Chamber states that Witness KL acted under the influence of his

13 granddaughter then, with all due respect to the Court, I have to say that

14 the Trial Chamber is not familiar with the customs prevalent in Bosnia.

15 Because in Bosnia, it is not a custom for a man, a middle-aged man to

16 listen to what his granddaughter, aged 13, is saying to him. One could

17 only envisage a situation that would be a complete reverse of that one.

18 After Witness KL mentioned this resemblance, in December we have

19 statements given to the investigating judge where both H and her mother,

20 SA, identify the perpetrators with certainty. Furthermore, as regards

21 Witness SA, we believe that the Trial Chamber infringed on the right of

22 the accused or of his Defence. I will try to be brief when presenting

23 this argument.

24 Witness SA was on the list made up by the Prosecution, one of the

25 witnesses that were to have been heard. But the Prosecutor was also able

Page 658

1 to see the various statements that she had given, and the Prosecutor has

2 given up on presenting her testimony although they had led us to believe,

3 up until the very last moment, that she would be presented as a witness

4 before the Court. However, this was not the fact because her daughter,

5 Witness H, states that her mother did not arrive in The Hague to testify,

6 but as her escort, to accompany her.

7 The Prosecutor explained that the reason why they had given up on

8 her testimony was because Witness SA was ill, and then what happened next

9 is something that I had not experienced in my entire professional career

10 and I believe that it is also your case. The social worker testified as

11 to the health of the witness and not a doctor. I'm not -- just a moment,

12 please allow me to finish. I am not really familiar with the Anglo-Saxon

13 common law system but I am sure that it is impossible for a social worker

14 to present medical evidence.

15 My colleague from the Prosecution would like to say something.

16 JUDGE WALD: Mr. Yapa.

17 [redacted]

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Page 659

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Page 662

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17 [Open session]

18 MR. RADOVIC: Okay?

19 JUDGE WALD: Okay.

20 MR. RADOVIC: [Interpretation] As regards the facts, we also

21 believe that it has not been correctly established, as regards the events

22 in Ahmici on the 20th of October, the participation of Zoran and Mirjan

23 Kupreskic in the HVO before the 18th of April; the command responsibility

24 of Zoran Kupreskic in April 1993; the participation of Zoran and Mirjan

25 Kupreskic --

Page 663

1 THE INTERPRETER: I apologise. This is too fast.

2 JUDGE WALD: Mr. Radovic, I think you have to go a little bit

3 slower. That's the translator's request.

4 MR. RADOVIC: [Interpretation] Okay. Let me repeat, then.

5 The facts have not been established fully or correctly as regards

6 the events in Ahmici on the 20th of October, 1992; the existence of the BH

7 army in Ahmici - this would be item B, and I will refer to that in the end

8 if we have some time to spare, because this part is not so important for

9 our defence; the participation of Zoran and Mirjan Kupreskic in the HVO

10 before the 18th of April, 1993; the command role played by Zoran

11 Kupreskic; the participation of Zoran and Mirjan Kupreskic in the events

12 of the 16th of April, 1993; and who it was that planned and carried out

13 the attack on Ahmici.

14 So let me begin with the events in Ahmici on the 20th of October,

15 1992. Paragraph 162 of the judgement indicates that the Trial Chamber has

16 correctly stated that the Muslims caused the conflict on that date, and

17 the Trial Chamber established that members of the BH army took part in

18 this conflict, as did members of the HVO, which were not from Ahmici.

19 In these proceedings, a lot has been said about the HVO without

20 properly defining this entity. Just to make things clear, the HVO was a

21 civil authority and, at the same time, it had a military component. So

22 when you talk about the HVO, you have to specify whether you're referring

23 to the civilian authority or to the military component of the overall HVO

24 government.

25 The facts have been incompletely established in as much as it has

Page 664

1 not been stated where the BH army members who took part in the conflict

2 came from, and the facts have been wrongly established because it is

3 stated that only some local Muslims and some local Croats took part in the

4 conflict.

5 The lack of precision in the judgement itself is caused by the

6 necessity to explain the events, to provide an explanation for the events

7 of the 16th of April, where it is stated that there were no BH army units

8 in Ahmici. Because if the conflict of the 20th of October was caused by a

9 BH army unit from Ahmici and if it participated in the conflict, then it

10 would not be possible for this unit from Ahmici to just disappear and for

11 it not to be there on the 16th of April, 1993. In the wartime

12 circumstances that were prevalent in Bosnia at that time, a military unit

13 could only increase in strength. It was impossible for it to disappear.

14 To prove my point, I draw your attention to the way in which the

15 BH army was organised, and the expert witness Asim Dzambasovic, a

16 Prosecution expert witness, testified to that effect. In his expert

17 testimony, which was very fair and correct - and we did not have any

18 objections to his testimony - he explained that the BH army at the time

19 was organised on the territorial principle, which means that all members

20 from a single locality or village were, at the same time, members of a

21 certain BH army unit.

22 The Prosecution witnesses' testimony indicate that the BH army

23 members were, indeed, from Ahmici. I need not refer to Defence witnesses

24 because we have ample evidence provided by the Prosecution witnesses.

25 They confirmed that they had set up and defended the roadblock on the

Page 665

1 basis of an order they received from their superior command.

2 I will not now go into details of the witness statements. I will

3 just mention the names of witnesses: Abdulah Ahmic, this witness has been

4 identified in public; Witness B; Witness Fahrudin Ahmic; Witness N;

5 Witness V; Witness AA. And it is stated incorrectly in this particular

6 paragraph of the judgement that some Croats from Ahmici participated on an

7 individual basis in all this, because the only Croat mentioned by

8 Prosecution witnesses is Dragan Papic. It is also incorrect that only

9 Muslims had fled Ahmici, because Zoran and Mirjan also did, and I have

10 already spoken about that.

11 This would conclude my presentation as regards the 20th of

12 October.

13 I will now say a few things about whether Zoran and Mirjan

14 Kupreskic were in the HVO before the 16th of April, 1993 or, to be more

15 specific, the 18th of April, when they claimed that they had been

16 mobilised.

17 Paragraph 377 of the judgement refers to the claims of the

18 Prosecution that Zoran and Mirjan Kupreskic were, in fact, in the HVO on

19 the basis of the fact that they had both done their national service and

20 that they were both on the list of the Vitez Brigade, registered at the

21 Vitez Brigade, in the period from April 1992 to January 1996. In

22 particular for Zoran Kupreskic, it is stated that Witness JJ indicates

23 that he was a member of the HVO - this is paragraph 378 of the judgement -

24 and it is also alleged that he was some kind of a commander. The claim

25 that he was a commander is allegedly based on the statements by Witness B

Page 666

1 and by the witness Abdulah Ahmic. That's paragraph 379.

2 Paragraph 421 of the judgement, in this paragraph, the Trial

3 Chamber states that they had been convinced, that they're satisfied that

4 both accused were active members of the HVO, referring to Prosecution

5 Exhibit P353 as regards Zoran Kupreskic.

6 In paragraph 442 it is stated that Zoran Kupreskic was a local HVO

7 commander and that his activities were not limited to assigning guards or

8 guard duties, referring to Witnesses JJ, B, and Abdulah Ahmic, and the

9 crucial piece of evidence in this respect is that he was a reserve officer

10 of the former JNA and that he was in a position of management in his

11 company where he worked and, therefore, he was used to the exercise of

12 authority.

13 First of all, Exhibit P353 does not prove that Zoran and Mirjan

14 Kupreskic were active members of the HVO prior to their mobilisation. As

15 regards Mirjan Kupreskic, he never signed this document which means that

16 he did not agree with the time period stipulated in that document.

17 JUDGE WALD: Mr. Radovic, I'm sorry to interrupt you again but I

18 am reminded that the translators absolutely have to have a break under

19 their rules, and so I think we will have a short break now which will go

20 to 4.30 and --

21 MR. RADOVIC: [Interpretation] I was really getting into my

22 stride.

23 JUDGE WALD: I'm sorry, but they do have their rules and we

24 will -- you'll have at least another sizeable period to hit your stride as

25 soon as we get back at 4.30, okay?

Page 667

1 --- Recess taken at 4.07 p.m.

2 --- On resuming at 4.37 p.m.

3 JUDGE WALD: Mr. Radovic, apologies again for the interruption,

4 but it was necessary, and we will now go until approximately 5.15 and hope

5 you can get back in stride. The remainder of the time that you and

6 Ms. Glumac have will be saved for tomorrow morning. Will she be taking

7 over in the morning or will you be continuing in the morning?

8 MR. RADOVIC: [Interpretation] She will be taking over tomorrow

9 morning.

10 JUDGE WALD: All right. Well, we'll let you get right back in

11 stride now.

12 MR. RADOVIC: [Interpretation] Exhibit P353 is evidence that the

13 accused were not members of the HVO because, according to that document,

14 they were mobilised between the 16th and 28th of April.

15 With regard to documents containing other information which is the

16 opposite of that, then we should believe the document that was issued at

17 the relevant time and not one that was issued later and one which

18 witnesses, for example, DA testified was issued because shares were being

19 handed out, and the same was testified by Witness II and this refers to

20 Dragan Papic as is visible from paragraph 355.

21 In the judgement, it is stated that Zoran Kupreskic was a military

22 commander based on the testimonies of Abdulah Ahmic, B, and JJ -- BY and

23 JJ. And they say that after the outbreak of the conflict, this was so,

24 but they do not say anything about the time of the 16th of April and the

25 time immediately preceding this. So it is completely irrelevant was Zoran

Page 668












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Page 669

1 Kupreskic was doing before the 20th of October.

2 Witness Y said that Zoran Kupreskic had told him that he would

3 stop assigning guard duties and Zoran Kupreskic, himself, according to

4 Witness JJ, said he wanted to get rid of this duty and that he did so

5 follows from the testimony of Zoran Kupreskic and the statement of Dragan

6 Vidovic who took over this task in the village and who became the person

7 who assigned guard duties in the village.

8 Therefore, on the 16th of April, there is no evidence to show that

9 Zoran Kupreskic was a commander at that time. I wish to draw attention to

10 the statement of JJ who said that commanders were selected according to

11 their political suitability. And according to D21/1, it follows that an

12 intelligence officer drew up a report on Zoran Kupreskic saying that he

13 was not in favour of the policy of the HDZ before the war, in favour of

14 establishing a part of Bosnia-Herzegovina as a Croatian national entity,

15 ethnic entity.

16 Witness JJ was a person who did not know anything from her own

17 observation but only from hearsay evidence from Zoran Kupreskic, and we

18 shall say more about this later on, about this witness. Zoran Kupreskic

19 is not listed among the commanders at any rank among the eight documents

20 which have been admitted as fresh evidence in the appeals procedure. He

21 had nothing to do with ordering and carrying out the attack.

22 I would now like to ask to pass into private session.

23 JUDGE WALD: Go ahead.

24 [Private session]

25 [redacted]

Page 670













13 Page 670-675 – redacted – private session













Page 676

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7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

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18 [redacted]

19 [redacted]

20 [redacted]

21 [Open session]

22 JUDGE WALD: Okay.

23 MR. RADOVIC: [Interpretation] Therefore, please check the

24 distances as well and see who is telling the truth and who is trying to

25 misrepresent the facts.

Page 677

1 So we have now taken care of ADA, and now we're moving on to the

2 most sensitive issue at all, and that is something that we already

3 mentioned: Are the two of them individuals who took part in the attack on

4 Ahmici?

5 As for Witness SA, I have already said the most important things

6 that were to be said. Now we move on to Witness H, who's supposed to be a

7 protective witness.

8 [Defence counsel confer]

9 MR. RADOVIC: [Interpretation] Very well. I shall first deal with

10 the first part which is not protected, and then I'll move on to the rest

11 which is protected.

12 She is the only witness who confirmed that both of the Kupreskics

13 were in her house at the time of these events, and these events consisted

14 of the following: that a Muslim was killed in front of that house; in

15 front of that house, her father was killed as well; her house was torched;

16 and she together with her mother and her two sisters was expelled.

17 However, now something very strange happens. The Trial Chamber

18 itself is convinced that this is hardly acceptable, so they start with the

19 ruling of the appeals court in England, quoting it and saying that that

20 judgement says that as far as ascertaining the identity of a perpetrator

21 is concerned, the court had to act very cautiously because there is a

22 danger involved in such testimonies; that is, that a witness can easily

23 make a mistake in terms of identification; and that even a truthful

24 witness who made a mistake may seem very convincing at first sight. That

25 is 339(C) of this judgement.

Page 678

1 Now, why does the Trial Chamber believe Witness H? The only

2 reason they give for this is that they find her testimony convincing. The

3 Court cannot act in this way. The Court has to say why they find a

4 certain witness truthful. Even when there is an eyewitness, a single

5 eyewitness, there are also auxiliary facts, so to speak, which can prove

6 or disprove that the witness is saying the truth.

7 We had hard evidence when we tried to check Witness H's testimony,

8 and our evidence proved that she was not telling the truth. The best

9 proof of this is the statement that she made before an investigating

10 judge.

11 Before an investigating judge, she made a statement and she

12 mentioned numerous circumstances and facts that are contradictory to what

13 she said during the trial here. When confronted with the statement that

14 she made to the investigating judge, then at the very end she ascertained

15 that she did not give any statement to an investigating judge in Zenica.

16 She even repeated that assertion when the Prosecutor said to her, "How can

17 you claim that you never made a statement to the investigating judge in

18 Zenica when yesterday, when we were preparing you for testimony before

19 this Trial Chamber, I showed you this statement?" Then she remembered

20 that the Prosecutor showed her that statement, but she nevertheless

21 adhered to her previous statement that she did not give any statement to

22 the investigating judge in Zenica.

23 In order to show that this witness was not telling the truth, we

24 called as a witness the investigating judge - the Trial Chamber accepted

25 this - and the witness judge confirmed before the Trial Chamber that this

Page 679

1 person did make a statement before her and that she wrote down everything

2 this person said.

3 The witness, Witness H, made a statement in Zenica, therefore,

4 which is quite different from the testimony she gave in this courtroom.

5 We dealt with this in detail in our brief, my colleague

6 Ms. Slokovic-Glumac and I, so I don't want to go into that again. My

7 colleague will, though.

8 The main point of this is that whenever we wanted to check what

9 she was saying, it turned out she was not telling the truth. We can find

10 further evidence that she was not telling the truth that namely, in her

11 claim, that she knows the Kupreskic brothers well. However, when she was

12 supposed to speak about that, actually how well she knew them, then she

13 said that Zoran Kupreskic worked in the shop of Ivica Kupreskic, and in

14 the proceedings it was ascertained that Zoran Kupreskic never worked in

15 any kind of shop. That he was head of some kind of a maintenance plant in

16 the explosives factory in Vitez, and it was Mirjan Kupreskic who worked in

17 Ivica Kupreskic's shop. Not only that, for a while, before the 16th of

18 April, Mirjan Kupreskic did not work in that shop at all. He went to work

19 in Ivica Kupreskic's shop in Vitez whereas in this other shop there was

20 another man who was employed.

21 Then also, she said that she recognised Zoran Kupreskic by his

22 height. I'm asking you, Your Honours, who can recognise anyone by his or

23 her height? By one's height, one can recognise only persons who were

24 extremely tall and therefore stand out, or if somebody is a dwarf.

25 However, if somebody is of average height, you cannot really identify

Page 680

1 anyone by height.

2 Then also she said that she identified Zoran Kupreskic because of

3 his receding hairline. You have his photographs from that period. You

4 also have his pictures from that period when he was engaged in folk

5 dancing. Now in prison he started getting bald a bit, but not at that

6 time. Then also she said she identified him by his voice, 80 per cent by

7 his voice as he was shouting. However, when she was asked whether she had

8 ever heard him shout in her life, she said "No." So now I'm asking you

9 the following: How can you identify someone by his shouting voice if you

10 had never heard that shouting voice before?

11 Also, she said that the persons or, rather, the soldiers who were

12 in her house had, on their backs, some kind of barrels. These barrels

13 were actually a Russian made weapon called zoljas, some kind of rocket

14 launchers that were used in the JNA and then later on by the various

15 armies that were waging war in Bosnia-Herzegovina. However, that is a

16 sophisticated weapon, and not all the soldiers had that. Who are the

17 soldiers who had that? We can see is that from Witness AT's statement.

18 And also his statement is indirectly confirmed by Asim Dzambasovic, a

19 Prosecution witness, and AT is also a Prosecution witness, for that

20 matter.

21 Actually, AT's statement clearly shows what kind of weapons people

22 at the Viteska Brigade had. There were mortars there which is some kind

23 of an artillery weapon depending on its calibre. However, rocket

24 launchers were not involved. Hand-held rocket launchers were only in the

25 hands of the special units including the military police. That this is so

Page 681

1 is proved by what Asim Dzambasovic said. He explained what zoljas were,

2 and he also confirmed that members of the military police were persons who

3 had specially good weapons, who were very well-trained and who, as a rule,

4 were engaged in attack combat, who would take certain lines. Then they

5 would withdraw and then the locals, as he called them, would come and hold

6 that line that had originally been taken by the special units.

7 So the person who identified --

8 JUDGE WALD: Mr. Radovic, I just want to remind you, you've got

9 about five minutes more. I think we're all pretty well --

10 MR. RADOVIC: [Interpretation] And now the very last thing and the

11 most important thing, but thank you for having said this. It's a good

12 thing you told me, because I almost omitted this. The main objection to

13 Witness H's statement is the question related to visibility in the house

14 itself. In our briefs, we mentioned the witnesses who claimed, for the

15 same period of time, that it was dark. That it was dark is also derived

16 from the statement made by her grandfather, KL. I -- yes, I take this

17 into account.

18 We were also discussing in detail whether there were two lights on

19 in his house, one light on in his house, whether everything that he had

20 said he had seen could be seen, or could not be seen, et cetera. Also in

21 addition to that, in Muslim villages, one knows full well when daybreak

22 comes. That is known because witnesses know when they are called to

23 morning prayer, and that morning prayer has to do with daybreak, dawn.

24 Therefore, it is no secret when daybreak is, and Witness AD showed

25 this the best. The only witness -- the only thing that he could have said

Page 682

1 was that he did not see what time it was because there was light, but

2 because there was a blaze of fire coming from the house next door. So

3 that is also an objection that we had in terms of this other witness and

4 in terms of visibility.

5 Time is running very short for me now, and my colleague will deal

6 with other matters. As for Zoran and Mirjan Kupreskic, it has been

7 established that they were not infected by nationalism or ethnic hatred.

8 All their neighbours speak the best of them and Witness S actually says

9 that he trusted Zoran Kupreskic so much that even if he had seen him on

10 the 16th of April when Muslims were being shot at, that he would have

11 approached him, greeted him, and asked him what was going on.

12 We have shown photographs from their folk dancing, et cetera, and

13 we showed what kind of people they were. However, their engagement in the

14 folk dance society is important because it was a multiethnic society, and

15 it was the only society that functioned until the 16th of April. Until

16 then Zoran Kupreskic actually resisted the pressure that was being brought

17 against him to have this society disbanded and to establish a monoethnic

18 society or, rather, he was asked to join the Croatian society that had

19 already been established.

20 Also when the war had already been broken out, JJ's statement

21 shows that he helped Muslims, not only her, but she also asked around and

22 found out that he had helped others as well. Also, Witness JJ's statement

23 clearly shows that he immediately condemned the crime that was committed

24 in Ahmici.

25 So, Your Honours, these are not mitigating circumstances that we

Page 683

1 are presenting to you now after the judgement has been passed. These are

2 mitigating circumstances that are based on the case material itself, what

3 we proved during the trial itself.

4 If the Prosecutor did not accuse us, in terms of what Witness H

5 said, then we would have presented mitigating circumstances anyway in

6 addition to all of that? Your Honours, please don't mind my saying so,

7 one always has to be very cautious, Mirjan Kupreskic's mother is ill and

8 that was taken as a mitigating circumstance for Mirjan, but it was not

9 taken as a mitigating circumstance for Zoran. But if it is a -- and the

10 one and the same mother. So if it is a mitigating circumstance for one of

11 them, then it should be a mitigating circumstance for the other two.

12 I thank you kindly, and I hope that I remained within the given

13 time frame and I can now give the floor to my learned friend. I thank you

14 for your attention.

15 JUDGE WALD: Thank you, Mr. Radovic. We very much appreciate that

16 you stayed within the framework and we're glad you hit your stride.

17 Before we leave, I want to make sure that none of my colleagues

18 have questions, otherwise we'll hear Ms. Glumac tomorrow morning at 9.00.

19 Thank you very much. We are adjourned for the day.

20 --- Whereupon the hearing adjourned at 5.15 p.m.,

21 to be reconvened on Tuesday, the 24th day of July,

22 2001, at 9.00 a.m.