Tribunal Criminal Tribunal for the Former Yugoslavia

Page 828

1 Wednesday, 25 July 2001

2 [Appeals Hearing]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 9.07 a.m.

6 JUDGE WALD: Madam Registrar, will you call the case.

7 THE REGISTRAR: Good morning, Your Honours. Case number

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

9 Vlatko Kupreskic, Drago Josipovic, Vladimir Santic.

10 JUDGE WALD: All right. Thank you.

11 Mr. Abell, I see you on your feet. I was going to open up by

12 informing you of what I know about the progress of your motion. Do you

13 have something else?

14 MR. ABELL: Your Honour, actually, before we come on to that, I

15 was going to mention on behalf of my absent colleague Mr. Clegg - I know

16 that he is very anxious to be in court at the start of the proceedings,

17 certainly at the start of the argument, which obviously touches upon his

18 client - but Your Honours may be aware that he has encountered a problem

19 this morning with Security to do with his pass. I don't know the details.

20 I simply know it's the same pass he had proffered yesterday and the day

21 before.

22 JUDGE WALD: Right. We have been made aware of that, and what can

23 be done is being done. He certainly can be in a position to hear the

24 argument, and they're doing whatever they can do. But meanwhile we are

25 going to proceed.

Page 829

1 Now, I take it Mr. Clegg's co-counsel is here; is that right?

2 MR. ABELL: She is, Your Honour, yes. I merely said that because

3 he asked me to say that. I know he's very anxious to be here.

4 JUDGE WALD: Oh, I'm sure of that, but we're not -- we do have to

5 get the proceedings started. We are aware of the problem, and what is

6 being done is being done here.

7 Let me just inform you, Mr. Abell, about your motion. It has been

8 brought to the attention of the President's Office. I don't have an

9 answer for you yet, but one of our assistants is going to check at the

10 break, at the 10.30 break. Now, if by some chance we are not able to get

11 it by the time of your rebuttal, the Bench is willing for you, when you do

12 get the answer, to make a written submission, if you care to, based on it,

13 but not more than five pages. Hopefully something may happen during the

14 proceedings before, but if not, you can attempt to alleviate that by the

15 writing.

16 MR. ABELL: Thank you very much, Your Honours.

17 JUDGE WALD: All right.

18 Yes, Mr. Pavkovic, go ahead.

19 MR. PAVKOVIC: [Interpretation] Good morning, Your Honours. I

20 merely wanted to inform you that my co-counsel Mitko Vrdoljak took part

21 throughout the preparation of the defence. I would like to thank him.

22 And I would like to inform you that unfortunately he died in a traffic

23 accident last week. I would like to offer him my gratitude now.

24 JUDGE WALD: Thank you very much, Mr. Pavkovic. We're sorry to

25 hear that, and we acknowledge his contribution as well. Thank you for

Page 830

1 bringing that to our attention. Do you have something else?

2 MR. PAVKOVIC: [Interpretation] Thank you. No, no, I have nothing

3 else.

4 JUDGE WALD: All right, then, we will proceed.

5 The Prosecution, by my count, has about two and a half hours left,

6 if it needs to use all that. I think the way we will handle that is you

7 can begin now and go for an hour and a half till -- that would be about

8 twenty to eleven; then we'll take the break, the translator's break, till

9 11.00, and then after that you'll finish up your argument and then we'll

10 go on to the rebuttals from there, okay?

11 MS. RASHID: Your Honour, I will start off the morning with the

12 part of the Prosecution's response in relation to the submissions made by

13 Mr. Clegg pertaining to the additional Witness CA's statement and the

14 impact of this additional evidence on the verdict.

15 Your Honour, essentially the appellant has submitted that because

16 you have on record two statements, Witness CA's statement and the rebuttal

17 evidence that has been admitted by the Prosecution, he concluded that one

18 of them must be telling the truth; and because the Appeals Chamber is not

19 in a position to resolve these conflicting facts, he suggested that the

20 case must be remitted back to the Trial Chamber for the resolution of

21 these facts.

22 The appellant, counsel for the appellant also made some comments

23 to the effect that if Witness CA had testified about this telephone call

24 before the Trial Chamber and Witness DD denied making that telephone call,

25 then the Trial Chamber may well decide that Witness DD was lying and may

Page 831

1 acquit the appellant on Count 1.

2 The appellant, Your Honour, is seriously not asking the Court to

3 engage in speculation, because this is not the test that you apply at this

4 stage of the proceedings. What the Appeals Chamber has to do is simply

5 this: If the Appeals Chamber, by looking at the rebuttal evidence and the

6 additional evidence, you cannot -- you are not in a position to decide one

7 way or another which of these witnesses may be telling the truth or

8 whether the additional evidence is reliable or credible, then you cast

9 aside, you put aside the rebuttal evidence and you look at the additional

10 statement by itself, taken it at its highest, you ask yourself: If

11 believed, would this evidence have an effect on the verdict if this

12 evidence was made available before the Trial Chamber? That is the test

13 that one has to adopt at this stage of the proceedings.

14 The Prosecution submits firstly that this additional evidence in

15 the form of Witness CA's statement, whereby she speaks of a telephone call

16 made by Witness DD and Witness DD asked her whether: "Do you know

17 anything of my son and my husband, Nazif? Are they still alive?" Witness

18 CA said, "I don't know anything about it."

19 This statement, even if believed, does not render the conviction

20 of the appellant for Count 1 unsafe. This is because the evidence of

21 Witness DD pertains to a specific murder that was taken into account by

22 the Trial Chamber as relevant evidence for persecution Count 1. Count 1,

23 Your Honour, was an umbrella counted encompassing another murder and

24 various other acts, the inhuman acts, and the murder count under Article

25 5. The test is whether it renders the verdict for Count 1, his conviction

Page 832

1 for Count 1 unsafe.

2 The Appeals Chamber must decide whether this piece of evidence

3 militates against the entire findings of the Trial Chamber leading to its

4 final verdict in the conviction of the appellant for Count 1. The

5 Prosecution submits that it does not, because there is still sufficient

6 evidence for the Trial Chamber to make a conviction for Count 1,

7 persecution. Not only does it not affect the verdict of guilt for Count

8 1, I respectfully submit that this does not, at the very least, affect the

9 credibility of Witness DD even if you -- even if believed.

10 Your Honour, the Prosecution has made extensive submissions in its

11 response brief. May I just refer Your Honours to pages 51 to 54 as to why

12 the additional evidence is not inconsistent with Witness DD's evidence,

13 and I do not propose to go through them. I just refer Your Honour to

14 those pages.

15 Suffice to say, Your Honour, that even if the witness did make the

16 telephone call to Witness CA two weeks after 16th of April, 1993, it

17 cannot be reasonably inferred from that alone that Witness DD was entirely

18 mistaken about her identification of the appellant's involvement or that

19 she was completely lying about the appellant's involvement, his

20 participation in the attack, and his conduct during the attack. I have

21 summarised the material aspects, Your Honour, of Witness DD's evidence

22 which the Trial Chamber relied on at pages 30 to 45 of my response brief.

23 Your Honour, this additional evidence is not different. It's not

24 evidence of a different character from that called at trial. It is simply

25 further evidence which attempts to discredit Witness DD. The witness was

Page 833

1 subject to intense cross-examination, and there were various attempts made

2 to discredit her by use of her previous statements.

3 Witness CA's statement, Your Honour, purports to discredit her on

4 one aspect of her evidence, whether she knew her family was killed. Then

5 the appellant attempts to extrapolate from that that she could have not

6 seen the appellant with a group of soldiers. The inference that he is

7 asking the Court to draw from this statement is farfetched. It is not

8 justified.

9 And the question the end of the day is simply this: Would this

10 piece of evidence if presented before the Trial Chamber and if the -- will

11 it seriously affect her credibility to such an extent that the Trial

12 Chamber will reject her evidence in its entirety? My submission is that

13 it is highly improbable.

14 There is no miscarriage of justice, Your Honour, if this evidence

15 is disregarded. There was other and sufficient evidence available to

16 convict the appellant. The appellant's motion for a retrial, based on

17 this additional evidence alone, is entirely without merit and it must be

18 dismissed.

19 Your Honour, that concludes my submission for Witness CA. I will

20 just very briefly, Your Honour, make comments, if I could, on the impact

21 of Witness AT's transcripts on the verdict. I've been reminded that

22 perhaps I should -- we should go into private session.

23 JUDGE WALD: All right. We'll go into private session.

24 [Private session]

25 [redacted]

Page 834

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [Open session]

Page 835

1 JUDGE WALD: Go ahead.

2 MS. RASHID: Thank you, Your Honour.

3 Your Honour, the Prosecution is not seeking a remedy. We're not

4 asking for a variation or revision of the sentence. We agree with my

5 learned friend's suggestion that perhaps an obiter pronouncement as to the

6 correct imposition of sentence for persecution and murder under the

7 circumstances would suffice and is appropriate. We do not seek any other

8 remedy, Your Honour.

9 That concludes my submission. I am most grateful to Your Honour.

10 JUDGE WALD: Thank you, Ms. Rashid.

11 MS. RASHID: If Your Honour has any questions, I will be more than

12 happy to assist.

13 JUDGE WALD: I don't have any questions.

14 THE INTERPRETER: Microphone, please, Your Honour.

15 JUDGE WALD: Go ahead.

16 MS. RASHID: I will now hand over the floor to my learned

17 colleague Mr. Guariglia who will be responding to the appellants Mirjan

18 and Zoran's appeal.

19 JUDGE WALD: Mr. Guariglia.

20 MR. GUARIGLIA: Good morning, Your Honours.

21 I will try within hopefully 40 to 45 minutes to deal with the

22 appeal of Zoran and Mirjan Kupreskic.

23 At the outset, Your Honour, we have to make clear that it's very

24 difficult to respond to an appeal of this nature, raising such a vast

25 number of issues and mostly dealing with matters of weight of the evidence

Page 836

1 adduced at trial. I will only deal with what we consider to be the main,

2 what we understand to be the main submissions raised by the appellants.

3 All other points I will not touch upon. They have been fully addressed in

4 our respondent's brief. Needless to say, I will be available for

5 questions as to any other issue that has not been addressed during my

6 presentation.

7 Before doing it, it may be appropriate, although the Appeals

8 Chamber is, clearly, fully aware of this, to bear in mind what appellant

9 proceedings are not about. They are not about relitigating the merits of

10 the evidence adduced at trial; they are not a forum to advance a

11 particular interpretation as to what the evidence before the Trial Chamber

12 establishes or does not establish; much less are appellant proceedings a

13 forum to present misrepresentations of the trial record or allegations

14 that do not find any support whatsoever in the trial record.

15 In any event, one thing should be clear to the appellants: The

16 time to advance arguments pertaining to the weight of the evidence before

17 the Trial Chamber is over; the opportunity to persuade a trier of fact as

18 to how the evidence before it should be interpreted is gone. The burden

19 is on the appellants to demonstrate that the Trial Chamber erred either in

20 law or in fact when making its decision.

21 I will first deal with the common grounds raised by both

22 appellants. The first common ground is the one pertaining to the

23 indictment and the alleged error by the Trial Chamber in convicting the

24 appellants of facts the appellants claim were not included in the amended

25 indictment. The Appeals Chamber may remember the issue here are the

Page 837

1 events at Suhret Ahmic's house, the killing of Ahmet and Meho Hrustanovic,

2 the arson of the Ahmic house, and the expulsion of the Ahmic family, which

3 the Trial Chamber concluded were committed by the appellants.

4 The appellants claim that this was not a component of the amended

5 indictment and thus that they were prejudiced, that they didn't have

6 sufficient notice to enable them to have an adequate defence and they were

7 presumably surprised by the conviction.

8 Now, the appellants have to demonstrate two things. On the one

9 hand, they must demonstrate that the Trial Chamber erred as a matter of

10 law in considering that these acts were included in the amended

11 indictment, and at the same time they must demonstrate that they suffered

12 prejudice because of the Trial Chamber's decision.

13 The appellants rely mainly on a decision delivered by the Celebici

14 Trial Chamber. I will start dealing with this particular decision. The

15 reliance on the decision by the Celebici Trial Chamber is completely

16 misplaced. The situation in that particular case was one in which the

17 Prosecution, according to the Trial Chamber, had failed to adduce

18 sufficient evidence to prove specific acts contained in the indictment and

19 instead had adduced evidence that was immaterial for the purposes of those

20 specific acts.

21 In Celebici, the count involved the specific act of placing a fuse

22 around the genital areas around a particular detainee - that was included

23 in Counts 38 and 39 - and the Prosecution led evidence that related to

24 different instances of victimisation of the same detainee. And there the

25 Trial Chamber concluded, correctly so, that the charge was simply not

Page 838

1 proven because that specific act had not been covered by the evidence.

2 The situation is clearly distinguishable from the present case,

3 where the accused were charged with persecution in the manner of

4 participation or aiding and abetting in the deliberate and systematic

5 killing of Muslim civilians, the organised detention and expulsion of

6 Muslim civilians, and the destruction of Bosnian homes and property, and

7 the evidence adduced at trial led precisely -- was led at trial precisely

8 to support those acts. So the evidence proffered went directly to the

9 acts included in the indictment.

10 Here we consider applicable to the case the distinction made by

11 this Appeals Chamber in the Furundzija between the material facts

12 underpinning the charges and evidence that goes to prove those material

13 facts, and the appellants are clearly confusing both categories.

14 Now, there can be no dispute that the events in the Ahmic house

15 were relevant evidence of the persecution charge, showing the appellants'

16 active participation in the persecutory attack, and that as such that

17 evidence was properly led by the Prosecutor and correctly relied on by the

18 Trial Chamber.

19 Now, as to the matter of notice, no valid allegation of lack of

20 notice may be raised by the appellants. In the Prosecution pre-trial

21 brief -- sorry. To begin with, the indictment met all requirements under

22 Rule 47 and Article 18, and it was expressly determined by the Trial

23 Chamber that that was the case in their 15 May 1998 decision.

24 In addition to the indictment that provided sufficient notice as

25 to the acts that were attributed to the appellants, in the pre-trial

Page 839

1 brief, the Prosecution warned the appellants they had recently acquired

2 evidence of individual acts of violence perpetrated by the accused and

3 that such evidence was considered to be admissible as relevant to the

4 Count 1 persecution charge. That was in the 13 July 1998 pre-trial brief,

5 at paragraph 27. In addition, all relevant evidence pertaining to the

6 events in the Ahmic house was fully and timely disclosed to the

7 appellants.

8 The trial record further shows that if there were any doubts

9 remaining as to the scope of the Prosecution charge, its material facts

10 and the evidence underpinning those facts, which should not have existed,

11 really, those doubts disappeared on the fourteenth day of trial on 3

12 September 1998 when the Prosecution clearly explained the position in

13 relation to the events at the Ahmic house, that those events were

14 components of the persecution count; and this position was further

15 clarified to the appellants by the Presiding Judge. And the record

16 conclusively shows that counsel for the appellant Mirjan Kupreskic fully

17 understood that the events at the Ahmic house would, in her own words, "be

18 dealt with within the context of the persecution charge." This is the

19 transcript at 1698. So the appellants simply cannot claim any surprise or

20 prejudice.

21 The question by the Presiding Judge, the first question that the

22 appellants were invoking in their submission, the first question was a

23 question for the purposes of having an absolute clarification as to what

24 the nature of the persecution charge was. The final question at the end

25 of the case is a question addressed to the Prosecution, asking whether the

Page 840

1 Prosecution considered that it would be appropriate for the Trial Chamber

2 to rely on that particular evidence for the purposes of the persecution

3 charge, which the Prosecution answered in the affirmative, saying, "Yes,

4 it is perfectly appropriate for you to do so," and the Trial Chamber

5 clearly shared this opinion.

6 If, for whatever reason, the appellants considered that the manner

7 in which the charge was pleaded and the manner in which the evidence was

8 disclosed to them was insufficient for an adequate preparation of the

9 defence, then the appellant had available remedies before the Trial

10 Chamber. In particular, the appellants could have sought an adjournment

11 of the proceedings, a remedy that has been recognised by the Tadic Trial

12 Chamber indictment decision of 14 November 1995. The appellants

13 completely failed to do so and, it must be assumed, they failed to do so

14 because they thought it wasn't necessary. So there is no surprise, no

15 prejudice that may be validly alleged by the appellants. This ground of

16 appeal or this criticism of the judgement simply cannot be sustained.

17 I will move now to other common issues raised by both appellants,

18 and these are matters pertaining to Witness H.

19 The appellants' basic submission must be interpreted to be that

20 the Trial Chamber committed an error of fact by relying on the evidence of

21 this witness for convicting the appellants, and there the appellants'

22 allegations are basically attacking the credibility and reliability of the

23 witness.

24 Under the test recently developed by the Appeals Chamber in the

25 Celebici case, it is for the appellants to demonstrate that the evidence

Page 841

1 could not reasonably have been accepted by any reasonable person, that the

2 Trial Chamber's evaluation was wholly erroneous and that therefore the

3 Appeals Chamber should substitute its own finding for that of the Trial

4 Chamber. This is Celebici appeals judgement at 491. And absent such a

5 showing, the jurisprudence of this Appeals Chamber is at this stage

6 jurisprudence constante, that the Appeals Chamber will always give a

7 margin of deference to a Trial Chamber's evaluation of the evidence and

8 findings of fact.

9 There are multiple allegations raised for the appellants made

10 against this particular witness and, again, I'm forced to deal with the

11 main allegations. The first one deals with prior inconsistent statements

12 given by the witness. The appellant's criticism appears to be that the

13 Trial Chamber relied on the evidence despite the fact that the appellant's

14 testimony was inconsistent or had some inconsistencies with a prior

15 statement that she had given to a investigative judge in Zenica. And

16 further, that while giving evidence before the Trial Chamber, she denied

17 ever having given such statement to an investigative judge.

18 The response to this is very simple. The Trial Chamber was fully

19 aware of these inconsistencies. This witness was vigorously

20 cross-examined precisely on these inconsistencies. And taking these

21 inconsistencies into consideration, the Trial Chamber concluded at

22 paragraph 425 of the judgement that it had taken into consideration the

23 criticism of her credibility arising from the discrepancies between her

24 statement and her evidence and her denial of the signature of the

25 statement but that, however, those criticisms were outweighed by the

Page 842

1 impression made by the witness upon the Trial Chamber while giving

2 evidence.

3 Now, the task of assessing the credibility and weight of the

4 evidence before a Trial Chamber is the Trial Chamber's province.

5 Inconsistencies or inaccuracies between prior statements and the oral

6 testimony of a witness or between different witnesses are relevant factors

7 no doubt for judging weight but need not of themselves constitute a basis to

8 find the whole testimony incredible. The Trial Chamber in Celebici decided --

9 said at one point that when faced with a similar situation of inconsistencies,

10 it had decided to attach probative value to testimony primarily on the

11 basis of oral testimony given in the courtroom as opposed to prior

12 statements where the demeanour of the relevant witnesses could be observed

13 firsthand by the Trial Chamber and placed in the context of all other

14 evidence before it.

15 The Appeals Chamber, while reviewing the Celebici judgement, did

16 not find any error in such a procedure and stated again that the Trial

17 Chamber is the body in the best position to hear, assess, and weigh

18 witness evidence.

19 In the instant case, the Trial Chamber heard the witness, observed

20 her reaction to cross-examination where all inconsistencies were raised

21 and finally concluded that the evidence was credible and reliable. It

22 further concluded that the witness was a forceful and confident one,

23 paragraph 401. In addition to that, the inconsistencies contained in

24 the -- raised by the appellants, the inconsistencies between the statement

25 and the witness testimony, as far as the appellant's participation in the

Page 843

1 events are concerned is purely peripheral in nature. They do not alter

2 the essence of participation of the appellant's in the Ahmici house.

3 They deal whether the father had a rifle. Whether she had seen

4 her father been killed by others or not, or whether she had heard a burst

5 of gunfire and then she had seen the corpse of her father. They did not

6 present any fundamental inconsistency as far as the events pertaining to

7 the appellants were concerned. It was perfectly appropriate for the Trial

8 Chamber to conclude that despite these inconsistencies, which were duly

9 considered by the Trial Chamber, the witness was a credible one.

10 The next layer of criticism to Witness H's testimony is that her

11 evidence was illogical. It was illogical due to the visibility conditions

12 that morning in Ahmici which would not have enabled any person to identify

13 another person in -- under those circumstances, and thus the Trial Chamber

14 erred in relying on this evidence. The appellants are mainly here relying

15 on the evidence of other witnesses that, according to the appellants'

16 allegations, certainly was extremely dark that morning and nothing could

17 be seen and they rely, if I took note correct, on the evidence of

18 Witnesses G, L, GG, K and C. Now, this issue was fully litigated at

19 trial, and the Appeals Chamber may recall that there were attempts during

20 the extensive Rule 115 litigation to relitigate again the issue on

21 appeal.

22 Witness H's evidence was that around 5.20 in the morning, one

23 could see well. This is stated at paragraph 1754 of the transcript. The

24 appellants should demonstrate that this particular assertion was totally

25 illogical to the extent that it would be unreasonable for the Trial

Page 844

1 Chamber to rely on this evidence. Now, to do that, the appellants

2 ought -- or to try to do that, the appellants present a falsely uniform

3 picture of the visibility in the village at the relevant time as though

4 all persons in that village at that point of time had exactly the same

5 visibility conditions, would apprise the visibility conditions in the same

6 way. They all could see exactly with the same degree of precision. Such

7 an allegation or such a position does not find any support whatsoever on

8 the trial record.

9 For instance, Witness G said that it was visible because some

10 houses were still burning. Witness E claimed that it was dawning at the

11 time she woke up and looked up. This is transcript 1293 to 1294. Defence

12 witness Milutin Vidovic said that about quarter past 5.00, you could see

13 clearly but the darkness was receding and dawn was approaching.

14 Transcript 7560.

15 The appellant Zoran Kupreskic himself said that at -- that it was

16 beginning to dawn at a quarter to 5.00, this is transcript 11282, and then

17 added that when the shooting began, it had already dawned. It was

18 daybreak. That is transcript 11289.

19 So there is clearly no uniform lack of visibility. On the

20 contrary. The evidence on the record shows that it was perfectly open to

21 the Appeals Chamber to conclude that the visibility conditions were good

22 enough for the witness to recognise both appellants. But in addition, the

23 identification was firmly supported by the fact that the witness knew the

24 appellants since the appellants were her neighbours, and this is, as far

25 as I can understand, not disputed by the appellants. That she was only

Page 845

1 one metre away from both of them, and that in addition to their faces, she

2 also recognised their voices. This is transcript 1639 to 1652.

3 So the Trial Chamber's conclusion then that the witness had a good

4 opportunity to identify the appellants and its decision to rely on the

5 evidence is perfectly reasonable. The appellants have failed to show that

6 on the basis of these alleged lack of visibility, the Trial Chamber's

7 decision to rely on this evidence was an unreasonable one.

8 I am aware of the fact, and I will deal with this very, very

9 briefly, that the appellants also claim that, for instance she could have

10 not recognised the voice of Zoran Kupreskic because she had never heard

11 him shout. Well, that's not what the witness said, actually. When asked

12 whether Zoran Kupreskic had addressed her in his normal voice, she said

13 that the voice had been something in between a normal voice and a shout,

14 and that Zoran Kupreskic did not need to yell when he opened the hatch

15 since it was a small area.

16 Then she further stated that the tone of the voice used by the

17 appellant was sufficient for her to recognise the voice. And there is

18 another inconsistency raised by the appellants dealing with an error

19 committed by the witness who apparently thought that Zoran Kupreskic used

20 to work in the Sutra shop. This is a minor confusion that is completely

21 incapable of affecting the credibility of the witness testimony, and that

22 was implicitly rejected by the Trial Chamber. The witness knew the

23 appellants well enough for the purposes of identification.

24 I will now move to the next criticism connected with the evidence

25 of Witness H, and this relates to the Trial Chamber's decision not to call

Page 846

1 Witness SA. Your Honours may recall that there was also extensive

2 litigation on this particular topic in the Rule 115 context. I can be

3 very brief on this topic.

4 The appellants' position is completely misplaced. At the outset,

5 no accused, no party, I would say, has a right to have the opposing party

6 calling evidence in the system of the International Tribunal. No party

7 has an entitlement to have evidence called by the Court under Rule 98,

8 because Rule 98 is an authority given to the Court in order to enable a

9 Trial Chamber to call that evidence that a Trial Chamber perceives to be

10 relevant for the ascertainment of the truth, but it's not a device to

11 allow parties to supplement their cases.

12 As it is totally clear on the basis of the record, the appellants

13 were notified of the fact that the Trial Chamber was not going to have

14 that witness heard as a Court witness, as had been expected and further,

15 the Presiding Judge notified the appellants of their right to have that

16 witness called during their case in chief, if they so desired, which the

17 appellants voluntarily decided not to do in the expectation that the Trial

18 Chamber would rely on the statements that had been admitted into

19 evidence.

20 Now, here we rely on this Appeals Chamber 8 May 2001 decision on

21 additional evidence:

22 "A Defence has no right to assume what a Chamber will or

23 will not accept in making its findings. It must put

24 forward its best case in the first instance."

25 The appellants were not misled into believing anything. The

Page 847

1 appellants made a conscious decision not to that that witness called in

2 their case in chief, and then they simply made a wrong assumption. That

3 is not a ground of appeal. That cannot be a ground of appeal before you.

4 It was perfectly open for the Trial Chamber to determine what weight, if

5 any, it would attach to that material.

6 The appellants should show the Trial Chamber abused its discretion

7 by not attaching any weight to the written statements, and we will simply

8 submit, for the sake of economy, that that decision was a perfectly

9 appropriate one and that no valid criticism may be raised.

10 Your Honour, there are more things that could be said on this

11 point. I will only make a brief reference to finish with Witness H, a

12 couple of minor points dealing with Witness H. One, the issue of whether

13 the Trial Chamber correctly followed the principles laid down in an

14 English case, Regina versus Turnbull.

15 At the outset, no Chamber of the International Tribunal is bound

16 to consider any case from any particular domestic jurisdiction, and that

17 is a solid point. This having been said, it is clear at paragraph 339 of

18 the judgement the Trial Chamber did consider the case in question, and it

19 did understand and share the principles laid down in the said decision and

20 was clearly alert of the dangers inherent in identification evidence.

21 The Trial Chamber's conclusion by accepting Witness H was that

22 those dangers were simply not present in the instant case, and that is the

23 prerogative of the Trial Chamber which is the body in the best position to

24 determine whether those dangers were applicable to the case, to the

25 witness in question.

Page 848

1 The Trial Chamber, if it looks at other decisions taken in

2 relation to witnesses in the judgement, like a decision not to rely on the

3 evidence of Witness G or in the evidence of Witness C, will conclude that

4 the Trial Chamber did exactly what it had to do. In the cases where they

5 thought the identification was unreliable, it did not rely on the

6 evidence. Where the Trial Chamber considered that those dangers were not

7 present, it did rely on the evidence and no flaw can be identified in this

8 particular exercise.

9 One brief word about an allegation that was made on Monday as to

10 lack of compliance by the Prosecution with Rule 68. An allegation of

11 breach of Rule 68 is a serious matter. It cannot be raised

12 light-handedly. The only material that the Prosecution had in its

13 possession pertaining to Witness H was that statement which was disclosed

14 to the appellants together with other material related to other

15 witnesses. This allegation is raised with no substantiation whatsoever

16 for the first time last Monday on appeal.

17 The appellant had in his possession all the material during trial

18 that enabled him now to make this speculative accusation of lack of

19 compliance with Rule 68, exactly the same material. He -- the appellant

20 could have, if that was his position, compared the material that had been

21 disclose pertaining to other witnesses and the material that had been

22 disclosed in relation to Witness H and raised at least a concern as to

23 lack of compliance with Rule 68 during trial. The appellant did not do

24 it. There was never an allegation at trial of a lack of compliance with

25 Rule 68 in relation to Witness H, and the reason why there was none is

Page 849

1 because there was no breach of Rule 68. All the material that the

2 Prosecution had in its possession was duly disclosed, and I have confirmed

3 this between Monday and today.

4 I will finish this only by saying that allegations of this type,

5 with no substance whatsoever, simply should not be raised before the

6 Appeals Chamber of the International Tribunal.

7 There is one brief point raised by the appellants, and I will only

8 need to discuss that in one second, dealing with the presence of BiH

9 military units in Ahmici. That hasn't been -- that has been fully

10 discussed in our respondent's brief so I need not spend too much time on

11 this. But I will only say that the appellants appear to be arguing that

12 the Trial Chamber erred in not concluding that there was some military

13 presence in Ahmici on 16 April 1993.

14 Now, interestingly enough, the appellants do not attach any

15 consequence to this error. They do not explain what possible consequence

16 this error could have. In the light of the crimes the appellants were

17 convicted of, the Trial Chamber's finding was that what happened on 16

18 April 1993 was a persecutory attack directed against a civilian

19 population, and heard abundant and overwhelming evidence as to the fact

20 that the targets were the Bosnian Muslim civilians and that the property

21 burned was Bosnian Muslim civilian property and that all casualties were

22 Bosnian Muslim civilian casualties.

23 I need not entertain this matter any longer, just to say that the

24 Trial Chamber's findings on this particular issue are conclusive. The

25 appellants, other than pure speculation, are not offering anything, and,

Page 850

1 as I said at the beginning, they don't even explain what the consequences

2 of this error would be.

3 I will move now to the last ground of appeal that is common to

4 both appellants, and that one deals with the participating forces during

5 the 16 April 1993 attack.

6 Now, the appellants are claiming that, on the basis of the

7 evidence before the Trial Chamber, the Trial Chamber should have concluded

8 that only the military police and, within the military police, the

9 so-called Jokers were responsible for the attack, and that no regular HVO

10 forces, and notably the Vitez Brigade, would have been involved.

11 Now, there is absolutely nothing on the trial record that supports

12 such a conclusion. No error can be raised against the Trial Chamber's

13 decision -- the Trial Chamber's conclusion, rather, that there was a broad

14 range of HVO forces involved in the attack, including but not limited to

15 elements of the military police, and in particular the Jokers.

16 The appellants are relying on a number of orders and documents. I

17 shan't bother Your Honours with details. They are orders from Colonel

18 Blaskic, Exhibits D37 and D38. The appellants tried to construe an

19 argument on the basis of this order, saying that the orders were clearly

20 only directed to the military police. This doesn't hold water. The

21 orders are addressed to a number of brigade commanders, including the

22 commander of the Viteska Brigade, Mario Cerkez. Both orders include a

23 number of duties which should be performed by the different brigades,

24 including the Vitez Brigade. And further, Witness CI clearly confirmed

25 that -- at least Exhibit D38 was an order to occupy the defence region and

Page 851

1 to block the village, addressed to the commander of the Vitez Brigade,

2 Mario Cerkez.

3 In addition, the Trial Chamber had before it a certificate of

4 wounding, stating that the HVO Vitez Brigade member Nikola Omazic had been

5 wounded during the 16 April 1993 Ahmici operation, and the Trial Chamber

6 also had before it evidence showing clearly the involvement of the HVO

7 Home Guard Commander, Nenad Santic, during the attack and before the

8 attack.

9 All this evidence was before the Trial Chamber. The references to

10 the transcript are included in our respondent's brief so I need not waste

11 time now reading them out to Your Honours. But in any event, what is

12 clear is that the Trial Chamber had sufficient material before it to

13 enable it to conclude that HVO regular forces had been involved in the

14 attack.

15 As to this reliance in the Kordic Trial Chamber's findings that

16 the Vitez Brigade was not involved, the first thing is that particular

17 judgement is currently under appeal and one of the reasons is that

18 particular finding; and second, the relevant issue here is the Trial

19 Chamber's conclusions on the basis of the evidence before it. And against

20 that reliance on the Kordic judgement, I could, for instance, rely on the

21 Blaskic judgement where, at paragraph 400, it concludes clearly and

22 conclusively that the Viteska Brigade was involved in the Ahmici attack.

23 I will now turn to certain specific allegations raised by counsel

24 for Zoran Kupreskic dealing with the findings of the Trial Chamber as to

25 the appellant's military status.

Page 852

1 The first thing is the weight of the eight documents that have

2 been admitted by Your Honours. Our position is well known to Your

3 Honours. It was expressed in the -- during the Rule 115 litigation, in

4 particular during the 30 March 2001 hearing, and we stand by that

5 position. Those documents relate to a different and higher level of

6 military hierarchy.

7 The only argument that the appellant is advancing to support his

8 position that the documents render the verdict unsafe is that the name of

9 the appellant doesn't show in any of these documents. Our position is

10 that the name of the appellant need not appear in any of these documents

11 since the appellant was involved at a lower level of military hierarchy.

12 The interesting thing is that the appellant appears now to be

13 denying that such a level ever existed, which appears to contradict the

14 appellant's own position both at trial and on appeal. In his closing

15 brief, the appellant, after asserting that there could be different types

16 of commanders and several commanding levels - this is Registry page 5781

17 to 5782 - the appellant considered that he had had a role as a local

18 coordinator of the village guards, but he claimed that that role was

19 transferred to Dragan Vidovic sometime before the 16 April 1993 attack, an

20 argument that was raised again in the appellant's appeal brief.

21 The Prosecution's position is that the Trial Chamber had evidence,

22 significant evidence before it allowing it to conclude that there existed

23 a local level of command within the HVO structure. This evidence includes

24 the activities of Nenad Santic, the HVO Home Guard commander; the

25 appellant's signing as a representative of the HVO Santici of an agreement

Page 853

1 on 20 October 1992 with the Muslims of Ahmici, which was tendered as an

2 exhibit at trial; the involvement of Slavko Papic, who was the Vitez

3 Brigade 1st Company Commander with elements of the village guard. All

4 this showed, among other pieces of evidence, all this showed that there

5 was a local HVO structure and there was sufficient evidence, which I will

6 now move to, indicating that the appellant had a commanding role in that

7 HVO structure.

8 First thing, you have the evidence of -- as to this particular

9 point, the evidence of Witness JJ, the evidence of Witness B, that told

10 the Trial Chamber how Nenad Santic had clearly stated to him that the

11 appellant was the village commander or was the commander in that

12 particular area; the evidence of Abdulah Ahmic, the evidence of Witness I,

13 all evidence showing that the appellant had a commanding role within the

14 local HVO structure.

15 Now, there is one point raised by the appellant as to the fact

16 that all this evidence dealt with the 20 October 1992 conflict and the

17 aftermath of that conflict, but at the relevant time of the attack, the 16

18 April 1993 attack, there was no evidence showing that he still had a

19 leading or commanding position. That allegation is plainly wrong.

20 The evidence of Witness JJ clearly showed that approximately a

21 month before the attack, the appellant was an HVO commander with an area

22 of responsibility, being the chief person to organise the army in that

23 area, and issued weapons, and further, that the area included the village

24 of Ahmici.

25 So our position there is that it was perfectly open, on the basis

Page 854

1 of the evidence before it, to the Trial Chamber to conclude that a local

2 HVO structure existed, that the appellant had a leading or commanding role

3 in that HVO structure, and to conclude further, that that leading or

4 commanding role should attract enhanced punishment. The appellants have

5 failed to show any error in this respect. The eight documents adduced as

6 additional evidence cannot simply produce any effect whatsoever on these

7 conclusions.

8 Now that I mentioned JJ, and I think I will have to speed up and

9 finish my submissions within the next five to ten minutes -- five minutes,

10 hopefully, the video adduced in evidence also needs to be addressed. The

11 video, the appellants claim, reflects the same oath-taking ceremony

12 watched by Witness JJ. The appellant offers, however, no precision as to

13 the date and time of the ceremony registered on tape. The video was

14 simply proffered together with the appeal brief.

15 Now, only for the purposes of the argument, let us assume that the

16 video is precisely what it purports to be. What does that show? What

17 impact could that have on the verdict? If that video shows what it

18 purports to show, that would only imply that Witness JJ was wrong on this

19 particular issue. It would not affect the rest of Witness JJ's evidence,

20 much less would it affect all the other evidence that was before the Trial

21 Chamber pertaining to the appellant's command position.

22 As to how it would affect the evidence of Witness JJ, neither the

23 appellant while giving evidence at trial nor counsel for the appellant

24 today are submitting that she was an incredible witness, that she meant

25 ill, that she wanted to prejudice the appellant, that she was a compulsive

Page 855

1 liar, or any other serious flaw to her credibility.

2 The appellants' position while giving evidence was that the

3 witness had mixed up some things. You heard from counsel for the

4 appellant on Monday that she was confused about some things. Well, about

5 how many things can this witness be confused?

6 Let us assume that she was confused about the oath-taking

7 ceremony. Does that necessarily mean that she was also confused about the

8 admissions that the appellant made to her pertaining to his commanding

9 status? Does that also mean that she must have been confused necessarily

10 as to the ID that the appellant gave to her which said "Zoran Kupreskic,

11 Commander"?

12 She was clearly a credible witness, and it has not been alleged

13 otherwise. The appellants have only been able to indicate minor

14 inconsistencies in her testimony, such as the fact that she could not

15 remember which HVO commander had signed a particular certificate, or that

16 she could not remember whether Zoran's ID contained a photograph or not.

17 She recognised at all times the fact that the appellant had

18 asked -- had helped her out in difficult times, and she was grateful for

19 that. She testified about her problems coming to testify, including

20 pressures and threats once it was found out that she was going to come to

21 testify before the International Tribunal. There is nothing on the record

22 that shows that she was an inherently unreliable witness or that she had

23 any other flaw as to her credibility.

24 So our primary submission is that even accepting this video as a

25 video of the oath-taking ceremony, that only removes a tiny portion of the

Page 856

1 evidence before the Trial Chamber underpinning its finding as to the

2 appellant's command position. It doesn't affect the rest of the evidence,

3 including the rest of Witness JJ's testimony, and therefore that evidence

4 would not affect the verdict.

5 Having said this, it is our position that Your Honours may validly

6 ask yourselves whether this video, presented the way it was, would be

7 relied upon by any Trial Chamber. Your Honours stated on your 26 February

8 2001 decision on additional evidence while admitting this video:

9 "If the appellants are correct in this assertion, that

10 this video depicts the same oath-taking ceremony in Vitez

11 referred to by Witness JJ and, indeed, Zoran Kupreskic is

12 a spectator rather than a participant, then this evidence

13 could have had an effect upon the Trial Chamber's

14 findings at trial."

15 Paragraph 106 of Your Honours' decision.

16 Now, let's see how this video was proffered. There is not even a

17 letter, let alone an affidavit or any other form of evidence of the person

18 purportedly taking this video indicating when this video was shot, what

19 event was being recorded on video. It hasn't been authenticated by

20 anybody. There is not even a date in the video that would at least give

21 us a point of departure to make some assessment as to the reliability of

22 the evidence. There is simply no material whatsoever provided by the

23 appellants establishing that this is the same oath-taking ceremony

24 referred to by Witness JJ.

25 Now, I can't forecast what counsel for the appellants is going to

Page 857

1 say but we can ask for that material that if we wanted to have more

2 evidence on the video we could have done it. That completely misses the

3 point. It is for the appellants to demonstrate that the evidence would

4 render the verdict unsafe. It is for the appellants to present before the

5 Appeals Chamber the best material evidence of the highest quality that

6 would allow the Appeals Chamber to make a determination as to that

7 evidence would or would not render the verdict unsafe.

8 In our submission, Your Honours may validly conclude after looking

9 at the manner in which this video was proffered that this piece of

10 evidence falls into that low category of evidence that was eloquently

11 defined by my learned friend Mr. Clegg as evidence such that no reasonable

12 Tribunal could have been influenced by it.

13 Your Honours, I will very briefly move to one point because

14 there's not much more -- I don't have any time left -- raised by Mirjan

15 Kupreskic, and this pertains to the issue of mobilisation of the

16 appellant, his involvement within the HVO. There is absolutely nothing in

17 the appellant's submissions indicating any error by the Trial Chamber in

18 reaching its conclusions as to Mirjan Kupreskic's involvement with the

19 HVO, his position as a reservist, and his mobilisation for the purposes of

20 the 16 April, 1993 attack. The allegations contained in the appeal brief

21 had been advanced before Your Honour sorrily are simply recast submissions

22 that were placed before the Trial Chamber. Basically the same defeated

23 position, the same defeated arguments are being raised de novo before Your

24 Honours.

25 There are two minor things that I will say -- one, rather. The

Page 858

1 interpretation of the exhibits that showed the appellant was a reservist

2 and that the appellant was mobilised, or the appellant was in a list of

3 the HDZ, that was Exhibit 371, exactly the same allegations raised at

4 trial. Exactly the same line of argumentation. They are putting before

5 Your Honours that these exhibits meant something else, and that as told

6 that was a conclusive finding they could reach on the basis of the

7 evidence. That was a theory attempted by the Defence to explain the

8 documents. Some Defence witnesses gave evidence trying to discredit the

9 accuracy of these exhibits. They were vigorously cross-examined, and

10 their evidence was rejected by the Trial Chamber. There's nothing in the

11 appellant's submissions indicating an error of fact in the Trial Chamber's

12 decision.

13 I will give only one clear example: The appellant is telling you

14 that the fact that the appellant appears in a list of HVO members is in

15 contradiction with the fact that according to a different exhibit, he was

16 mobilised on the day of the attack. Well, actually, according to the

17 Defence witness, Dragan Majstorovic, the initial exhibit, the one of the

18 HVO list contained a list of reservists that were highlighted with a "P"

19 which involves were members of the village guards which were considered to

20 be reservists. The name of the appellant Mirjan Kupreskic indicating with

21 a P indication his condition of HVO reservist and probably his other

22 condition of village guard.

23 The subsequent exhibit simply indicates that the appellant was

24 mobilised on 16 April 1993. There is no contradiction whatsoever between

25 both exhibits, and the same witness I was referring to clearly established

Page 859

1 that a reservist had the status and been mobilised and became an active

2 soldier. There is, other than speculation, as to where the appellant

3 would have gone had he been mobilised other than raising again

4 interpretations of the evidence that were unsuccessfully attempted before

5 the Trial Chamber. There is nothing in the appellant's argument that

6 would justify appellate review of the judgement.

7 Your Honour, there is one last minor issue that I will need to

8 address in private session, only one or two minutes.

9 JUDGE WALD: Private session.

10 [Private session]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 860

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [Open session]

20 JUDGE WALD: Open session.

21 MR. GUARIGLIA: Thank you, Your Honour. This concludes my

22 submissions on both appellants, and I am available for questions if there

23 are any.

24 Questions from the Appeals Chamber:

25 JUDGE WALD: I have two questions for you.

Page 861

1 I want to understand -- in your argument about the indictment and

2 persecution, the beginning of your argument, I want to make sure I

3 understand: Is it your argument that if the indictment alleges

4 persecution in the form of killing civilians, burning houses, those kinds

5 of allegations, is it your submission that the indictment need not contain

6 anything more specific in the form of the incidents naming the people that

7 were killed or the houses that were burned, et cetera? It's enough to

8 just -- so long as you provide somewhere along the line in the trial

9 information saying, "We're going to rely on the fact that it was X's house

10 or that you appeared at Y's," but that doesn't -- none of that has to be

11 in the indictment? That seems to run a little bit counter of some of the

12 Tribunal's decisions that require annexes setting out specific incidents

13 to pinpoint what the general allegations are.

14 MR. GUARIGLIA: Mm-hmm. Let me put it this way: In the

15 Furundzija decision, vis-a-vis the decision was made between evidence

16 pertaining to the material facts contained in the indictment and the

17 material facts contained in the indictment, our position would be that --

18 especially with charges such as genocide or persecution which amount, you

19 know, a vast number of instances of different instances of victimisation,

20 it would not be practicable, it would -- in most of the cases it would not

21 be possible to put all evidence pertaining to those counts in the

22 indictment itself.

23 Now, in the case of murder, clearly, you need to put a list of the

24 individuals that you have killed. That's a natural consequence of the

25 crime that you are pleading as a Prosecutor. But as far as crimes of

Page 862

1 persecution are concerned, then basically the Prosecution -- the

2 indictment for previous requirements of providing notice by describing

3 which acts the Prosecution considered to amount to persecution, and then

4 it was a matter of disclosure of the evidence at trial or before trial

5 much.

6 Now, it may well be that the practice of the Tribunal has moved

7 into one of more detailed indictments, but the question before Your

8 Honours is was the indictment so pleaded fatal for the Defence, or was the

9 Defence in notice of what the nature of the persecution charge was. And

10 our position is, and I feel the record clearly reflects that, that the

11 appellants fully understood the nature of the persecution charge and it

12 was clear that the persecution charge involved the events in the Ahmic

13 house.

14 JUDGE WALD: You say it was clear they were on notice, but they

15 were on notice only from subsequent disclosures of information or from

16 things that happened in the trial, right, not from the indictment itself.

17 MR. GUARIGLIA: In the indictment, the indictment contained, as

18 one of the acts they were charged with, the expulsion of Muslims and --

19 JUDGE WALD: Right.

20 MR. GUARIGLIA: -- and the killing of Muslims. The pre-trial brief

21 told them clearly: We have received more evidence that is relevant for

22 the persecution count which we will basically disclose to you in time.

23 The evidence of Witness H or Witness KL was timely disclosed for the

24 appellants. The appellants were either charged with a murder count or

25 with a persecution count.

Page 863

1 Now, when evidence of Witness H was disclosed, that was clearly

2 not evidence for a murder count because it involved an altogether

3 different incident. It could only go to the persecution count. So the

4 mechanics of the process of indictment, notice in the pre-trial brief, and

5 disclosure of the evidence provided before trial sufficient notice for the

6 accused. And if there was any doubt, yes, those doubts should have

7 disappeared at the 14th day at trial and if there was -- if the appellants

8 thought that that the manner which the charge had been pleaded did cause

9 them prejudice, they should have asked for an adjournment. They should

10 have asked for any remedy before the Trial Chambers, not wait until the

11 end of the trial and then raise an appeal for the first time that

12 prejudice was caused.

13 JUDGE WALD: I'm sorry, we have to go into private session for my

14 next question. It will just be one.

15 [Private session]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 864

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [Open session]

14 MR. CARMONA: Your Honours, I have the benefit of being the

15 penultimate speaker with regard to this appeal, and I come at a time when

16 my colleagues have expressed various opinions on the law and in relation

17 to various witnesses. And this, to a large extent, may impact on the

18 breadth and scope of my submissions in that I will be trying to limit it

19 to pertinent issues relevant to the case of Vlatko Kupreskic and as far as

20 it impacts on the finding of the Trial Chamber in the final analysis.

21 I think it is important, however, that before I begin with an

22 analysis of what are the issues, that it is important to appreciate the

23 rule and responsibility of an Appeal Chamber a committance to the dictates

24 of the ICTY statute. To that extent, it is important to keep in mind that

25 the appeal proceeding in the Tribunal is of a corrective nature, and so

Page 865

1 far as the Statute is concerned, an appeal does not involve a trial de

2 novo.

3 The starting process of any appeal determination must be, and I

4 repeat must be that the decisions of a Trial Chamber of this Tribunal

5 unless reversed or revised on appeal are correct and, therefore, the party

6 that is exercising or invoking the endemic rights of an appeal or in the

7 capacity as an appellant must be able to establish the existence of an

8 error within the designated Article 25(1) of the Statute.

9 It is conceivable that sometimes there may be, indeed, an overlap

10 in terms of whether the particular appellant is putting forward

11 submissions in law or putting forward submissions that amount to error of

12 law or error of fact. It is my rather uncomfortable responsibility to

13 weigh through a plethora of facts since, in the case of Vlatko Kupreskic,

14 it is in fact an appeal that is based on an error of fact. In other

15 words, an error of the Trial Chamber relating to the factual conclusions

16 it drew from the evidence presented to it.

17 In other words, the trier of fact in the proceedings before the

18 Tribunal consisting of those three judges who issued written reason

19 decisions, the question on appeal is whether the evidence cited by the

20 Trial Chamber reasonably supports the Trial Chamber's conclusions and, if

21 so, the Trial Chamber's decision is entitled to deference even if others

22 might have reached a different conclusion on the same evidence. It is

23 only where the evidence cited by the Trial Chamber cannot reasonably

24 support the conclusion it reached that the Appeals Chamber must

25 appropriately intervene.

Page 866

1 I think to essentially skirt and circumscribe the role of the

2 Appeals Chamber, I think, it is important to simply quote from the Tadic

3 judgement that to my mind encapsulates our present role today and in the

4 last few days. If I may quote from paragraph 64 of the Tadic judgement,

5 "The two parties agree that a standard to be used when

6 determining whether the Trial Chamber's factual finding

7 should stand is that of unreasonableness, that is, a

8 conclusion which no reasonable person could have

9 reached. The task the hearing, assessing, and weighing

10 the evidence presented at trial is left to the judges

11 sitting in the Trial Chamber. Therefore, the Appeals

12 Chamber must give a margin of deference to a finding of

13 fact reached by a Trial Chamber.

14 It is only where the evidence relied on by the Trial

15 Chamber could not reasonably have been accepted by any

16 reasonable person that the Appeals Chamber can substitute

17 its own finding for that of the Trial Chamber. It is

18 important to note that two judges both acting reasonably

19 can come to different conclusions on the basis of the

20 same evidence. In other words, to satisfy this burden,

21 the appealing party would have to indicate clearly the

22 nature of the error in the Trial Chamber's decision and

23 to address fully the specific facts from the record of

24 the trial that support its claim of error. A failure by

25 the appealing party to discharge all or part of the

Page 867

1 relevant burden should result in the dismissal of the

2 ground of appeal.

3 In other words, the appellant who disputes the

4 conclusion on appeal must persuade the Appeals Chamber

5 that a conclusion is one which could not have reasonably

6 been made by a reasonable tribunal of fact so that a

7 miscarriage of justice has occurred."

8 It is important, however, to put into the correct context the

9 indictment of Vlatko Kupreskic. My learned colleague on the other side

10 was correct when he said that a case involving Vlatko Kupreskic is

11 different from the other appellants although, to my mind, in putting

12 forward his position, he convoluted that ratio because to a large extent,

13 the impression given in his submissions was that the evidence that is

14 required to prove co-perpetration is of a similar ilk that is required to

15 prove aiding and abetting.

16 It is important at the onset to appreciate what is meant by aiding

17 and abetting and what is meant by co-perpetration, because I think at the

18 onset I should indicate that the defence case of Vlatko Kupreskic was to

19 the effect that he was not present in the area when the persecutory

20 incidents occurred; the specific acts alleged could not have possibly

21 occurred; he did not consent to the use of his house by HVO soldiers; he

22 didn't know about the persecutory campaign before it commenced; he could

23 not have known of the preparations for such a campaign; he was not

24 physically able to have committed the crimes alleged; and most of all, he

25 was not the type of character that would have been involved in such a

Page 868

1 campaign. It is against this backdrop, but more emphatically against the

2 ingredients of the offence on the indictment that we would look at what,

3 in fact, the Prosecution had led in relation to Vlatko Kupreskic.

4 Aiding and abetting is a residual form of participation that

5 applies to all contributions of the criminal event that are not captured

6 by planning, instigating, ordering, or committing as reflected by the

7 language of Article 7(1). Although it is common to speak of aiding and

8 abetting, the two concepts are distinct, and this was reflected in the

9 Akayesu judgement at paragraph 484 to 485 -- my apology, paragraph 473,

10 where they indicated that aiding means giving assistance to someone;

11 abetting, on the other hand, would involve facilitating the commission of

12 an act by being sympathetic thereto. Either aiding or abetting alone is

13 sufficient to render the perpetrator criminally liable.

14 So that as much as, in fact, there is the argument that mere

15 presence cannot be an indicia or an indicator of complicity or cannot of

16 itself per se be considered to be an aspect of aiding and abetting, it

17 must be looked at in the context in which that evidence is led and all the

18 other pertinent areas and pertinent facts that are supplied by the

19 Prosecution in proof thereof.

20 Thus, if mere presence at the scene of a crime is not per se

21 sufficient to render an accused liable for aiding and abetting, presence

22 during the commission of the crime can constitute abetting if it has an

23 encouraging effect on the perpetrators or gives them moral support or

24 psychological support, or a significant legitimising or encouraging effect

25 on the principals. It is sufficient that the accused is aware of the

Page 869

1 substantial likelihood of the crime being committed by a member or members

2 of a particular class of persons against a member or members of a

3 particular class of potential victims.

4 So that when one looks at this case from its factual matrix, it is

5 important at the onset to indicate very categorically that a charge

6 against Vlatko Kupreskic is aiding and abetting and not as a

7 co-perpetrator. Granted, in fact, he was charged initially as being, in

8 fact, part and parcel of the entire exercise, but those charges were

9 dismissed. He was charged with aiding and abetting between the period of

10 October 1992 and April 1993. So that it is important for the learned

11 Tribunal to keep in focus the fact that the evidence that was led spread

12 over a particular time period.

13 As much as my friend has, in fact, indicated that this case is, in

14 fact, based on circumstantial evidence, in respectful deference, it is the

15 submission of the Prosecution that this case, apart from circumstantial

16 evidence, is also based on direct evidence. And the state will go on to

17 indicate why it is important to appreciate that it was, in fact, based on

18 direct evidence.

19 The indictment attributed three specific acts of persecution to

20 the appellant in the context of aiding and abetting: deliberate and

21 systematic killing of Bosnian Muslim civilians, the comprehensive

22 destruction of Bosnian homes and property, the organised detention and

23 expulsion from the Bosnian Muslim from Ahmici, Santici, and its environs.

24 I don't think anyone can question that what happened in Ahmici on

25 the 16th of April, 1993 involved gross persecutory acts. What has to be

Page 870

1 established is the individual liability in the context of their role, and

2 there are varying roles at that, because it is, in fact, the submission of

3 the Prosecution, as found by the Trial Chamber, that the role of Vlatko

4 Kupreskic was at a lower level, at an operative level, than what appeared

5 in relation to the other appellants.

6 It is important, however, to appreciate the difference between

7 direct evidence and circumstantial evidence, because if, for example, the

8 Tribunal is of the view that this case is based on circumstantial

9 evidence, then it is circumscribed by the ratio to be found in Celebici

10 with regard to how you interpret and to what extent you will give the

11 required weight to circumstantial evidence.

12 If I may refer the Court to page 5 -- to paragraph 986 to 987,

13 where it is indicated in Celebici that a circumstantial case consists of

14 evidence -- sorry, a circumstantial case consists of evidence of a number

15 of different circumstances, when taken in combination, point to the guilt

16 of the accused, because they would usually exist in combination only

17 because the accused did what is alleged against him.

18 Such a conclusion must be established beyond reasonable doubt. It

19 is not sufficient that it is a reasonable conclusion available from that

20 evidence. It must be the only reasonable conclusion available. If there

21 is another conclusion which is also reasonably open from that evidence and

22 which is consistent with the innocence of the accused, he must be

23 acquitted.

24 When one looks at the body of evidence that was adduced by the

25 Prosecution, it is the submission of the Prosecution that it amounted to

Page 871

1 direct evidence. And that evidence consisted in the main of, 1, the

2 unloading of weapons from a car in front of his home in October of 1992;

3 2, the fact that he was seen in front of the Hotel Vitez on the morning of

4 the 15th of April, 1993 and in the early evening when a number of soldiers

5 were seen in the vicinity of his house; 3, that there was troop activity

6 in and around the appellant's home on the evening of the 15th of April,

7 1993, and this observation was confirmed by various witnesses; 4, the

8 evidence of Witness H with regard to his role and in terms of his presence

9 on the 16th of April, 1993 in the vicinity of the home of Suhret Ahmic; 5,

10 that in fact he was involved in the preparations for the attack in his

11 role as a police operations officer; and 6, that the Trial Chamber did in

12 fact find that there was evidence that supported -- that he supported

13 actions of others.

14 It is important to note that all these contentious issues were, in

15 fact, raised at trial, were seriously litigated at trial. And if one

16 looks at the closing brief of Vlatko Kupreskic, one would appreciate that

17 the very issues that have been raised here today in relation to whether

18 the evidence is nebulous, is tenuous, was placed before the Trial Chamber

19 and rejected. I'm not saying that the appellant cannot come now and not

20 raise issues of fact in terms of the wrongful conclusions arrived at. The

21 question that has to be asked: Has he in fact brought before this Chamber

22 any additional evidence or any additional argument on the basis of the

23 evidence that was before the Trial Chamber? And there is a resounding

24 no.

25 We're not dealing with the 115 evidence, we're dealing with the

Page 872

1 case as is, because this is why, in fact, I have decided not to approach

2 it in this convoluted manner of chapters. I am dealing with the case in

3 terms of sections, the case as is and the case now. This is why it is my

4 intention to deal with the case now in open session and then possibly move

5 into closed session when dealing with the additional evidence.

6 JUDGE WALD: Let me just ask you one question, Mr. Carmona. I was

7 going to take a break around about now, but I can go till -- do you think

8 you will have concluded your presentation by 11.00? Because I can go to

9 11.00. Otherwise, I have to take a break at some point for the

10 translators.

11 MR. CARMONA: I think at this point in time I wouldn't mind a

12 break. I think, Your Honours, that given --

13 JUDGE WALD: All right. We can take a break now until 11.00. I

14 do want to remind the Prosecution generally that when we come back after

15 the 11.00 break, by my reckoning, you'll have an hour, approximately an

16 hour left for your entire presentation. Okay, that's what we'll do,

17 Mr. Carmona, till 11.00.

18 Mr. Clegg?

19 MR. CLEGG: May I just apologise for my late arrival this

20 morning.

21 JUDGE WALD: We understand the circumstances, Mr. Clegg, and we --

22 MR. CLEGG: Somebody erased my details from the relevant

23 computer. Ms. Rashid is under suspicion.

24 JUDGE WALD: Right. Well, so far it's only circumstantial

25 evidence, Mr. Clegg. But we accept your apology.

Page 873

1 We'll adjourn till 11.00.

2 --- Recess taken at 10.44 a.m.

3 --- On resuming at 11.06 a.m.

4 JUDGE WALD: Mr. Carmona, you can proceed. Go ahead.

5 MR. ABELL: Your Honour, might I interrupt to say this - I'm so

6 sorry, I don't want to interrupt my friend in mid-stride - but simply to

7 indicate, as Your Honours may be aware, that I have had that disclosure.

8 Would it be permissible, to give me a chance to take it in, if I were to

9 make --

10 JUDGE WALD: This is my proposal, anticipating that you might say

11 that. When the time, after an hour, comes to start on the rebuttal time

12 of all the appellants, I'm going to put you last on the rebuttal list.

13 That will take you past the lunch hour. I think that will be ample time

14 to --

15 MR. ABELL: Yes, I'm very grateful.

16 JUDGE WALD: Okay.

17 MR. ABELL: May I, before I sit down, pay tribute to the speed

18 with which the Tribunal has dealt with that application. I'm very, very

19 grateful to all concerned, if I may say.

20 JUDGE WALD: You should be thankful to our diligent legal

21 assistants and to the President.

22 Mr. Carmona, go ahead.

23 MR. CARMONA: Yes, Your Honours, I, in fact, at the break was

24 about to indicate that in the closing brief, the appellant at paragraph 7,

25 paragraph 26 to 31, 49 to 52, 60 to 64 in fact dealt with the whole issue

Page 874

1 with regard to his, the appellant's nationalist feelings and his role as a

2 operations officer. The Trial Chamber considered it in paragraph 796.

3 The Defence closing brief also dealt with evidence relating to the

4 appellant's presents in Ahmici on the 15th of April, 1993. This was dealt

5 with in the closing briefs, paragraph 14 to 19, 22 to 25, 53 to 55.

6 Again, the Trial Chamber considered this in paragraph 797.

7 The Defence closing brief dealt with the issue of the appellant's

8 role in the preparations of the attack by allowing his house to be used a

9 place for the troops in paragraphs 11 to 21, 56 to 62. Once more, the

10 Trial Chamber dealt with those issues at paragraphs 798 to 799.

11 In paragraph 802, the Trial Chamber concluded that the evidence of

12 the accused as a witness as to his alleged lack of participation was not

13 credible. In paragraph 803, the Trial Chamber summarises its

14 consideration and concludes that the appellant assisted in the preparation

15 and supported the attack carried out by the other accused, the HVO, and

16 the military police. The Defence closing briefs dealt with this in

17 paragraphs 35 to 46.

18 So that the entire Defence case that we are hearing being put

19 forward in the last two days with regard to evidence before the Trial

20 Chamber, those matters are, in fact being relitigated and there is no

21 additional argument in support of requesting the Court to decry the

22 conclusions and determinations arrived at by the Trial Chamber.

23 When one looks, for example, at Witness T, much as has been said

24 about Witness T in regard to the unloading of arms into his house back in

25 October of 1992. The fact of the matter is that the Appeals Chamber --

Page 875

1 the Trial Chamber, my apology, did make findings that there were, indeed,

2 skirmishes occurring between, in fact, the Muslim population and the

3 Croats. And if one may consider, if I may extend it further, to the kind

4 of fire power that came from Vlatko Kupreskic's house, from the warehouse,

5 one may well see, for example, the relationship between that sighting and

6 what occurred on the 16th of April, 1993.

7 The fact of the matter is that this particular issue was heavily

8 litigated. My learned friend has indicated that there was no explanation

9 for with regard to what the weapons were, but on a studied look at the

10 evidence given by T would reflect that the witness went on to indicate

11 that the witness was referring to guns and, additionally, that it was just

12 before dusk, it was some 50 metres away, and that, in fact, she saw the

13 weapons, the guns, going into Vlatko Kupreskic's house.

14 The fact that my learned friend has indicated and readily admitted

15 that there was no cross-examination on that issue, and based his arguments

16 on the premise that cross-examination ought to have taken place is, to my

17 mind, revisiting an issue that has already been litigated in the 115

18 motion that dealt with the issue of adversarial incompetence because my

19 friend cannot afford to fall prey to a 115 motion deja vu in returning to

20 issues that have been, in fact, adjudicated upon.

21 Because he says, for example, startlingly there was no cross-examination

22 of Witness T on the point to test the reliability of the observation. What

23 is he getting that when he said there was no CXC? What, in fact, is quite

24 obvious that the attorney then realised that to further clarify the issue

25 with regard to the weapons that was taking place would have been quite

Page 876

1 damaging to the appellant and as a result, rightfully or justifiably so,

2 given the unity of identity between counsel and client which the Tribunal

3 invokes upon on all occasions, they decided not to further

4 cross-examination. Because, let us be blunt here, the issue of flagrant

5 adversarial incompetence does not arise in these proceedings.

6 With regard to the issue of identification, reference has been

7 made to the sighting of Vlatko Kupreskic outside the Vitez police station,

8 the Vitez Hotel on the 15th between 2.00 and 3.00 in the afternoon. I do

9 agree with my friend that the Court, in its assessing of the evidence,

10 simply states what the evidence is in a very matter of fact way. Yes, he

11 was seen in the company of two or three soldiers outside Vitez. But,

12 again, I do besiege the learned Tribunal to have a read of these

13 individuals witnesses, I am talking about T, B, L, O. When one reads

14 these I transcripts, you recognise that what, in fact, the learned Trial

15 Chamber was doing was encapsulating the evidence on the particular

16 umbrella head.

17 When, for example, you read about a particular witness who said

18 that, in fact, she saw soldiers going into the basement, a very

19 significant piece of evidence that is not mentioned on the record but is

20 part of the evidence was to the effect that they were dressed in military

21 gear. "I saw them come out into the basement and they disappeared."

22 "Where did they go?" "There was a warehouse right next door." And when

23 one looks at the treatise of facts that were led by the Prosecution, one

24 would recognise that the greatest fire power came from those two

25 particular areas.

Page 877

1 My friend made mention of, in fact, the use of experts, Professor

2 Wagenaar in terms of the need to appreciate what, in fact, he was saying,

3 but the Trial Chamber did appreciate what he was saying. I bring to your

4 attention the fact that they did not believe Q who had said, for example,

5 that Vlatko was firing at some hapless victim because they appreciated

6 what Professor Wagenaar said with regard to distance and there was no

7 corroboration.

8 In the same vein they are expected to have appreciated what he was

9 saying in the evaluation of all the identification evidence so that the

10 fact that it is not mentioned per se does not necessarily mean that it

11 wasn't considered in the same way that one heavy weather is made of my

12 friend in relation to the fact that no mention is made of Mirko Vidovic,

13 but you would remember that the Trial Chamber had to deal with the similar

14 issue in relation to EE that, in fact, it dealt with the question of

15 inconsistent identification in relation to other individuals.

16 So the fact that it was not mentioned, however, the fact that it

17 was raised in very significant terms in the closing brief by the

18 appellant, and the fact that the Trial Chamber had to deal with the

19 similar issue in relation to the other appellant is an indication that

20 they were quite privy to the dilemma to that, in fact, whole question with

21 relation to identification and that they resolve it taking into

22 consideration the principles, the very principles invoked by my learned

23 friend.

24 In any event, the very principle of Turnbull is subject to

25 limitations because I have, in fact, lodged two other cases that

Page 878

1 illustrate quite succinctly that it is only to be dealt with cases of

2 fleeting glances and it is not to be considered as a type of catechism, a

3 type of mantra that the courts must follow at all times.

4 Your Honour, you would appreciate that given the constraints of

5 time I will have to indicate to the Court that I will be adopting my

6 arguments in its entirety in terms of issues in relation to what

7 transpired. Now, it is important to note that my friend, my learned

8 colleague cannot, in fact, lead evidence from the bar table. When the

9 witness says that, "I saw the individual outside the Vitez police

10 station," it cannot be suggested that because he has a supermarket down

11 there, he may have been there. Because that is not the evidence. The

12 evidence of the appellant is that "I was not there." And in that regard,

13 my learned friend cannot approbate and reprobate.

14 You cannot, for example, say, "Listen, if I was there is because I

15 was going to my supermarket. But if you believe, in fact, I was there, at

16 the same point in time, I was not there." The same thing occurs in relation

17 to the sighting of H -- by H of Vlatko Kupreskic at 5.30 in the morning.

18 My friend makes the suggestion from the bar table that: Well, it may be

19 that he was coming from the Verbeck shelter at around that time. He was

20 coming, and maybe that is why he was identified as being there at that

21 particular time but there is an error of fact on that proposition because

22 the witness is saying that I saw him at about 5.30 to 5.45 when Vlatko

23 Kupreskic was coming from the shelter. It was at 10.00 a.m. in the

24 morning.

25 THE INTERPRETER: Please slow down for the interpretation.

Page 879

1 MR. CARMONA: And the reason why my friend, in fact, is probably

2 putting forward that position, it may well be because of his belief that

3 the evidence against him is circumstantial. So there must be inferences.

4 There must be reasonable inferences. And based on that, definitely in

5 those circumstances, the inference most favourable to the accused you

6 would adopt, to the appellant.

7 But when one looks at the entire case in the context of the

8 preparations on that particular day, you would appreciate, Your Honour,

9 that as I said before, Witnesses T, B, L, M shows individuals arriving

10 there dressed as soldiers going into the house, being seen on the balcony

11 and all those other places.

12 I may say in passing that the only presence, the only presence

13 that has been advocated by AT has no real relevance to this particular

14 issue because AT was not there. And the only witness, in fact, who can

15 probably seriously confront that particular issue is ADA. And it is a

16 submission of the Prosecution that the very evidence of ADA fails on its

17 own admission. His was, in fact, an exercise in shifts.

18 I have, in fact, already mapped out in very incisive terms, my

19 friend refers to as, in fact, in the context of heat, but I do agree with

20 him it is a lot of heat and at the end of the day you would appreciate,

21 Your Honours, that that particular witness was one that in fact could not

22 be believed in the circumstances in terms of the kind of evidence that he

23 had. It is not my intention to go in en masse in terms of the type

24 of facts that he spoke about because I am pressed for time, but in my

25 brief, I have outlined some of those areas of concern.

Page 880

1 In passing, I should indicate that the Defence of the appellant

2 was indeed an alibi, and the Prosecution led evidence to rebut that

3 alibi. One would appreciate, for example, that the evidence in relation

4 to ADA, if I may start to impinge on that aspect of the case is -- has a

5 very selective process in that it is what is often referred to as negative

6 evidence. Because one would appreciate, and I have, in fact, left with

7 the learned tribunal a particular case on alibi that indicates what is

8 considered to be evidence in support of alibi. That is -- that has to be

9 something of an affirmative nature.

10 What is the position of the Prosecution is to the effect that the

11 evidence of ADA who says basically, listen, I did not see him. To all

12 intents and purposes, it is negative evidence. It is not as strong as the

13 affirmative evidence that was led by the Defence which was rejected by the

14 Trial Chamber by Ljubica Kupreskic, by Ivica Kupreskic, and by various

15 other witnesses.

16 And the case I refer to is R. And Johnson. It is part of my

17 brief. Your Honours, if I may in fact at this time request closed session

18 I am about to deal ...

19 JUDGE WALD: Private session, please.

20 [Private session]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 881

1

2

3

4

5

6

7

8

9

10

11

12

13 Pages 881-884 redacted private session

14

15

16

17

18

19

20

21

22

23

24

25

Page 885

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [Open session]

10 MR. CARMONA: I'm much obliged. You're dealing with juridical

11 minds, minds that, in fact, encompass a level of analysis that one would

12 not find among laypeople.

13 So that when, for example, the Trial Chamber, for example, puts in

14 very bullet form what the facts were, it is a far cry from saying that is

15 the evidence. We need to go further and look and see what -- how that

16 evidence came out and in what context. I'm not saying, by any stretch of

17 the imagination, that you ought to believe everything that a particular

18 witness says based on that approach; but certainly in looking at the

19 context in which it was said, one would, in fact, juridically determine

20 that when the Court said, "I saw him in front of Vitez," they were in fact

21 referring to that particular instant where the officer made rounds with

22 his car. He said, in fact, he was driving very slowly. Everyone looks at

23 the type of evidence led in relation to the preparation.

24 When you look at all these witnesses, you will appreciate that

25 half of the evidence that relates to the conflagration is not mentioned

Page 886

1 because it is all done under this bullet form. Obviously, the Trial

2 Chamber was in a position to look at the demeanor of witnesses as you have

3 been in a position to look at the demeanor of all the additional evidence,

4 and you can make a finding in terms of credibility.

5 It is the position of the appellant -- of the Prosecution that the

6 evidence that has been led so far in relation to the 115 is not of that

7 ilk, to disturb the determinative findings of the Trial Chamber. Because

8 when you bring evidence before an Appeal Chamber, it must be evidence that

9 has a particular bona fides. You cannot come and rationalise and say all

10 the witnesses are exaggerating, that that witness, in fact, was

11 eccentric.

12 When, for example, you cannot tell the Trial Chamber that this

13 witness is to be believed, it is an indication that you appreciate the

14 exceptional standards that are required before an Appeal Chamber can

15 reverse the findings of a Trial Chamber.

16 In those circumstances, it is the submission of the Prosecution

17 that -- as I said, I adopt en masse my submissions in the brief that the

18 Prosecution has filed, and it is the position that there is no merit in

19 the submissions by my learned friend that the particular evidence would

20 have vitiated or mitigated the evidence that the Trial Chamber would have

21 heard.

22 In any event, the bottom line, as I have said initially, the test

23 is reasonableness, the reasonableness in the evaluation process of a Trial

24 Chamber. Can we -- could we or can we fault them if, in fact, they have

25 heard that evidence? Because I can assure you it is the submission that

Page 887

1 had they heard the evidence of ADA, they would have, in fact, rejected it;

2 had they heard the evidence of AT, they would have, in fact, appreciated

3 that his knowledge would have, in fact, suffered from certain

4 delimitations.

5 Your Honours, this is essentially the arguments of the Prosecution

6 on this core.

7 JUDGE WALD: Thank you, Mr. Carmona.

8 MR. CARMONA: Any questions?

9 JUDGE WALD: Any questions? I think not. So the Prosecution can

10 proceed on to the next stage.

11 MR. CARMONA: I'm much obliged.

12 JUDGE WALD: Thank you.

13 MR. CARMONA: I just wish to introduce my learned colleague,

14 Mr. Guarigilia. He will, in fact, continue.

15 JUDGE WALD: We're well acquainted by now.

16 MR. GUARIGLIA: Thank you, Your Honours. I apologise to Judge

17 Nieto-Navia because he is totally out of my visual range.

18 Your Honours, I will deal very briefly, because the Prosecution is

19 indeed running out of time, with the appeal of Vladimir Santic. We will

20 not respond in detail to allegations made by the appellant during the

21 hearing. We stand by our previous position. The concessions made by the

22 appellant during his pleadings go to the core of his criminal

23 responsibility, as established by the Trial Chamber, and the evidence the

24 appellant is relying on for the purposes of alleging some error by the

25 Trial Chamber basically is incapable of affecting the verdict. And we

Page 888

1 direct -- we would draw to Your Honours' attention the Appeals Chamber 29

2 May 2001 decision.

3 In addition, all allegations of error raised independently of that

4 evidence are wholly unmeritorious. The appeal boils down to a single

5 position. Whether there was no direct evidence before the Trial Chamber

6 of the appellant's ordering subordinates crimes -- the commission of

7 crimes during the Ahmici attack, we respectfully submit that as a matter

8 of law there is no such requirement and that there was plenty of evidence,

9 overwhelming evidence, before the Trial Chamber allowing the Chamber to

10 make the inference that the appellant had ordered or had transmitted and

11 reissued orders from his superiors that amounted to persecutory acts

12 committed by his subordinates. We rely on the material as described in

13 the Prosecutor's closing brief during the Kupreskic trial and in the

14 judgement itself, where all this evidence is explained in detail.

15 So our position is there's really not much on the table to respond

16 to, and for the purposes of economy and saving time, we will not respond

17 to the allegations raised by the appellant, unless there is a particular

18 topic that the Appeals Chamber feels should be addressed, and then I will

19 be delighted to respond to any questions at the end of my submissions.

20 If we could move now to private session, I would deal with the

21 second part of the response.

22 JUDGE WALD: Private session.

23 [Private session]

24 [redacted]

25 [redacted]

Page 889

1

2

3

4

5

6

7

8

9

10

11

12

13 Page 889 redacted private session

14

15

16

17

18

19

20

21

22

23

24

25

Page 890

1

2

3

4

5

6

7

8

9

10

11

12

13 Page 890 redacted private session

14

15

16

17

18

19

20

21

22

23

24

25

Page 891

1 [redacted]

2 [Open session]

3 JUDGE WALD: Okay.

4 MR. GUARIGLIA: This concludes my submissions on the appellant

5 Vladimir Santic.

6 JUDGE WALD: Thank you.

7 MR. GUARIGLIA: Thanks a lot, Your Honours. I will now give the

8 floor to Mr. Yapa. He will give a common response to the sentencing

9 grounds of appeal raised by the appellants.

10 JUDGE WALD: Mr. Yapa.

11 MR. YAPA: I thank Your Honours.

12 In the limited time that is available to me, I propose to make

13 submissions on the submissions made by my learned friends individually on

14 the sentences imposed on the accused. I think the time, Your Honour, will

15 be sufficient, although my colleagues have eroded the time that I thought

16 I would have. But it does not matter. They were doing their best given

17 the task they were assigned.

18 What I propose to do during the short time available is to focus

19 on the individual submissions made by counsel on behalf of the appellants

20 on the issue of sentences.

21 Our submissions hitherto have been in support of the convictions

22 entered by the Trial Chamber. We have not appealed the sentences

23 imposed. It is our submission, other than in the case of Drago Josipovic,

24 that the sentences imposed should not be varied. But even in the case of

25 Drago Josipovic, we do not say that the variation that we are asking for

Page 892

1 should not be -- we do not say that it should be to his detriment. It is

2 a mere rectification that we are asking for, not an enhancement of the

3 sentence.

4 Normally in a criminal appeal, especially when an appeal is from a

5 convicted person, there is a ground of appeal against sentence. This has

6 been so in almost every appeal that has been up before Your Honours'

7 chamber. In terms of Article 25, it is open to the Prosecutor to lodge an

8 appeal against sentence -- against any sentence that is imposed. What is

9 of importance is that the appeal is under the provisions of Article 25,

10 and the grounds therein are those that could apply -- that would apply

11 even in respect of an appeal against sentence.

12 In the Celebici appeal, the Prosecution appealed the sentence

13 imposed on one of the accused persons and the appeal was upheld. Whether

14 the appeal is from a convicted person or the Prosecution, there is a basic

15 norm that has to be adhered to. Where either the Prosecution or the

16 Defence appeals against sentence, the Appeal Chamber cannot simply be

17 asked to substitute its own views for those of the Trial Chamber. The

18 scheme of the Statute and the Rules envisage that the discretion with

19 respect to sentencing is to be exercised by the Trial Chamber.

20 For the Appeals Chamber to intervene, it must be demonstrated that

21 the discretion has not been validly exercised, for instance, because the

22 sentencing process involved errors of substantive law or because there was

23 an abuse of discretion by the Trial Chamber, in the sense that the

24 sentence imposed is outside the range of sentences that was within the

25 legitimate discretion of the Trial Chamber.

Page 893

1 Your Honours, in all the judgements dealt with so far in the

2 substantive appeals in the Appeals Chamber, principles applicable to

3 sentencing have been pronounced, and we have referred to these in our

4 written submissions in response.

5 I may at this stage say that we have made extensive submissions on

6 the question of sentencing in part 6 of our respondent's brief and they go

7 into detail. In fact, in the latest Appeals Chamber judgement, I say it

8 is the latest Appeals Chamber judgement because it was dealt with this

9 month, on the 5th of July, in the Jelisic judgement on the 5th of July,

10 some of the issues raised here had already been dealt with. I refer to

11 paragraphs 96 to 132 of that judgement.

12 With reference to a recognised tariff or range of sentences, the

13 observations in paragraph 96 in that same judgement are very important.

14 My learned friend, Mr. Clegg, is quite familiar with this development from

15 the Tadic appeal case, because I think he had a part to play in presenting

16 the submission before the Appeals Chamber. Now, from the Tadic decision

17 onwards, we have had so many pronouncements in all the cases, in the

18 Furundzija case, in Aleksovski, in Celebici, and the Jelisic judgement, on

19 the issue of sentence.

20 As I made this reference to the Jelisic judgement, may I also draw

21 Your Honours' attention with respect to paragraph 124 to 126 of the same

22 judgement. On the question of substantial cooperation that has been

23 spoken of here, as is referred to in Rule 101(B)(ii), it is stated in that

24 judgement, and I'm referring to the Jelisic judgement:

25 "What constitutes substantial cooperation is not defined

Page 894

1 in the Rules and is left to the discretion of the Trial

2 Chamber."

3 In this instance, it will be the Appeals Chamber. Then again, it

4 is said:

5 "The Appeals Chamber notes that the determination of

6 whether the cooperation should be considered as

7 substantial and therefore it constitutes a mitigating

8 factor is for the Trial Chamber."

9 Again, here it would be for the Appeals Chamber.

10 Our position in regard to the grounds of appeal on sentence is

11 that the appellants have not satisfied the standard required for the

12 Appeals Chamber to intervene. The appellants have not shown that the

13 Trial Chamber committed errors of substantive law in its intent in

14 procedia. They are not demonstrated that the Trial Chamber imposed

15 sentences outside the discretionary framework provided by the Statute and

16 the Rules. As submitted by me earlier, the grounds of appeal relating to

17 the sentence imposed on the appellants have been dealt with extensively in

18 our response brief.

19 I will now briefly refer to the oral submissions that were made.

20 Mr. Clegg made a general submission on review of sentences by the Appeals

21 Chamber. I'm not in disagreement with some of the observations made

22 because they are in line with the jurisprudence of the Tribunal. However,

23 as regards his submission that in view of the number of cases that have

24 now passed through, both the Trial Chamber and the Appeals Chamber in the

25 Tribunal, that one is able now to discern a range of sentences. In

Page 895

1 response, I go no further than to refer Your Honours to paragraph 96 of

2 the Jelisic appeal judgement because that's a case that has dealt with the

3 cases that had been decided in this Tribunal before that judgement.

4 The -- and also the pronouncement in the Celebici judgement which were

5 dealing with on the 25th of February this year. In the Celebici

6 judgement, paragraph 758, the Appeals Chamber confirmed the observation

7 made earlier in the Furundzija appeal that at present, there does not

8 exist such a range or pattern of sentences imposed by the Tribunal.

9 Then it was also submitted that it is the duty of a Trial Chamber

10 in terms of Article 24 to satisfy itself that it has material before it as

11 envisaged before the passing of sentence. We are not in complete

12 agreement with this submission. When accused are defended, it is a matter

13 for counsel representing the accused to present whatever mitigating

14 circumstances that are available. It may be that counsel decides not to

15 present any mitigating circumstance. Such decisions may be considered

16 decisions -- may be considered decisions on the part of the Defence

17 counsel for various reasons.

18 In the case of an undefended counsel -- I'm sorry, in the case of

19 an undefended accused, there is no question that a Trial Chamber will take

20 that additional step of inquiring from an accused whether he has anything

21 to say before sentence is passed.

22 In regard to the appellant Vlatko Kupreskic, my learned friend

23 Mr. Livingston, in fact, drew attention to paragraphs of our response

24 brief to make his submissions. The mainstay of the argument was the low

25 level of the appellant and that he deserved a lower sentence than the one

Page 896

1 imposed. He was referred to as a low-level defendant. It is said that he

2 is an aider an abetter and his role in abetting, however serious it may

3 be, must not be elevated to a level which it does not warrant.

4 I do not want to go into the details, but I want to say that the

5 Trial Chamber has dealt with his involvement exhaustively as was pointed

6 out a little while ago and imposed a deserving sentence and it has to be

7 pointed out that he received the lowest sentence that was imposed.

8 In regard to the submissions made on behalf of the other

9 appellants, I think they have been covered in my general submissions. The

10 question of -- even in respect of Vlado Santic, I think the matter has

11 adequately been dealt with. Those are my submissions in respect of

12 sentences.

13 If Your Honours have any questions for me, I am willing to answer.

14 JUDGE WALD: No, Mr. Yapa, I think that -- does that conclude the

15 Prosecution's total presentation?

16 MR. YAPA: Yes, it completes our presentation. I should thank

17 Your Honours for the patient hearing given, and also I thank my learned

18 friends on the opposite side.

19 JUDGE WALD: Thank you.

20 MR. YAPA: Thank you.

21 JUDGE WALD: At this stage we will begin on the rebuttals and we

22 will go until approximately 1.00 and then we will break for lunch and

23 finish the rebuttals, the Prosecution rebuttal, and the Status Conference

24 later.

25 Each of the appellants has 15 minutes for rebuttal. We will keep

Page 897

1 to that time frame strictly because, as you can see, if one person is

2 allowed to overtake it, then everybody else will claim a similar right.

3 So I would ask you to plan your remarks so that they will stay

4 within the time framework of 15 minutes and with that, we will begin with

5 Mr. Radovic for Zoran Kupreskic.

6 Mr. Radovic.

7 MR. RADOVIC: [Interpretation] Thank you. I shall present the

8 argumentation for both of the Kupreskics, and my colleague is going to

9 speak about the content of the indictment. Since our time is limited, I

10 shall speak in telegraphic fashion.

11 The basis of our appeal is attacking the credibility of Witness

12 H. It would not be reasonable to believe that she spoke accurately. We

13 are not going into whether she, deep in her heart, believed that what she

14 was saying was true or not. However what she said to the Trial Chamber by

15 way of identify be the accused was untrue.

16 That this is so can be seen from the witness statement of Judge

17 Ajanovic. Her statements were illogical as when she said that she knew

18 Mirjan and Zoran Kupreskic well. And then this good knowledge of Zoran

19 and Mirjan boiled down to the following: That Zoran worked in a shop

20 where he never worked. Mirjan actually worked in that shop. But in that

21 period of time that she referred to, Mirjan wasn't working there either.

22 A third person was then working at the shop. That clearly shows that she

23 did not know them well at all.

24 She claimed she talked to them and she recognised their voices.

25 She could not have recognised their voices if she practically never had

Page 898

1 any contact with them because she could not con Zoran in the shop where he

2 never worked in his life.

3 In addition to that, she incorrectly stated what the visibility

4 conditions were which is basically concerned by the Prosecutor himself

5 when he said that Witness G said that there was visibility because the

6 houses were burning. The Prosecutor does not say that there was good

7 visibility because there was daylight.

8 In addition to that, we see inconsistencies in what this witness

9 said, and the Prosecutor said that the inconsistencies of the Defence are

10 dangerous for the Defence, but we claim that inconsistencies in witness

11 statements are dangerous for the authenticity and credibility of the

12 witnesses themselves. We dealt with this in detail in our submissions so

13 I don't want to repeat all of this.

14 There is one thing I wish to say, and that is that it is absurd

15 for the Prosecutor to claim that there was daylight in one part of the

16 village by a certain house, and then ten metres away, by another house,

17 the daylight was different. Until now, I always thought that sunlight and

18 daylight were the same for two neighbouring houses. This is the first

19 time in my life that I hear of this and I thank the Prosecutors for

20 acquainting me with new laws of physics.

21 In addition to that, only Witness H specifically spoke of a

22 specific period of time. Now, if all the witnesses who speak of this same

23 period of time say that there was no light then, she cannot say that all

24 of them have poor eyesight or did not wear their glasses. I think that

25 that would do as far as H is concerned. I don't want to go into further

Page 899

1 detail.

2 There's just one more thing I want to add. We have a proverb to

3 the effect that paper can suffer anything, but saying that there was

4 daylight when there was no daylight is really along the lines of this

5 proverb of ours.

6 Then as regards Witness SA, the Prosecutor has misstated what we

7 said, that we ordered the Chamber to do something, to call SA as a Court

8 witness. We just proposed to the Court that they call this person as a

9 Court witness, and it was up to the Trial Chamber to decide whether they

10 would accept our proposal or not. After all, this is what is done with

11 all other proposals made by the opposing parties.

12 Now I need a minute of private session, please.

13 JUDGE WALD: Private session.

14 [Private session]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 900

1

2

3

4

5

6

7

8

9

10

11

12

13 Page 900 redacted private session

14

15

16

17

18

19

20

21

22

23

24

25

Page 901

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [Open session]

24 MR. RADOVIC: [Interpretation] Unfortunately, I just remembered

25 something. Now I will be going back to AT so we do need to remain in

Page 902

1 private session because this really has to do with commanders again. I am

2 sorry.

3 [Private session]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [Open session]

24 JUDGE WALD: Okay.

25 MR. RADOVIC: [Interpretation] The Prosecutor also assaulted the

Page 903

1 videotape that you admitted. I can say that the -- that the Prosecutor

2 could actually refute this videotape by saying or proving that there were

3 several lineups of the Viteska Brigade not only one, and as conscientious

4 Prosecutor, he'd have to call JJ and ask whether that was the display that

5 she saw, the one that is on the videotape. And then he also could have

6 called the man who filmed this video footage because we gave the name,

7 surname, and address of this person when we actually wanted this to be

8 admitted.

9 Now, I would like to say a few words about sentencing. In the

10 system of sentencing that we come from, and according to the Statute, the

11 Tribunal should bear this in mind in terms of sentencing.

12 Elements of a criminal offence cannot be taken as an aggravating

13 circumstance; namely, if somebody was convicted of persecuting Muslims, et

14 cetera, and that is the crime of persecution, then that at the same time

15 cannot be an aggravating circumstance in terms of sentencing, because had

16 it not been for that, this person would not have been pronounced guilty at

17 all. And then there are other circumstances that come to the fore when

18 the extent of guilt is being measured. So it is important that elements

19 of a crime cannot be taken as aggravating circumstances, and that is what

20 is specifically referred to in paragraph 852 of the judgement.

21 It is true that we did not speak of mitigating circumstances, but

22 we did prove mitigating circumstances separately, just as the Prosecutor

23 proved persecution through a witness that was not named in the indictment

24 at all.

25 Through the proceedings, we sought to prove what Mirjan and Zoran

Page 904

1 Kupreskic were like as persons, and this resulted in the Prosecutor

2 saying, on page 6094, that until the 16th of April, 1993, the Kupreskic

3 brothers were good men and good neighbours and that they were not

4 ethnically prejudiced at all. We believe that this kind of a history that

5 they had, which also includes the fact that they had no criminal record,

6 should certainly be taken as a mitigating circumstance.

7 Let us prevent double standards from cropping up once again,

8 because for one of the defendants this was taken as a mitigating

9 circumstance, but not for the Kupreskic brothers.

10 It was also taken as an aggravating circumstance for them that in

11 March 1993 they were present at the celebration of Bajram; however, in

12 March 1993, nobody knew that there would be a war between the Croats and

13 the Muslims. And they took part in Bajram celebrations practically from

14 the very beginning of their activity within the culture and arts society

15 that was engaged in folk dancing, that is to say, folk songs and dances,

16 et cetera.

17 It is not only that they took part in these celebrations for

18 years. Because this was a religious holiday, they did this free of

19 charge, because this was their contribution to the coexistence between

20 Croats and Muslims. They made an effort to promote this coexistence, and

21 this is shown by everything Zoran Kupreskic did after the 20th of October,

22 1992. He did his very best to have the Muslims returned to the village,

23 and he could not guarantee what would happen six months later and he could

24 not -- he could not have known that there would be a decision to the

25 effect that the thrust of the attack would be focused on Ahmici.

Page 905

1 My colleague tells me that my time is up --

2 JUDGE WALD: Yes.

3 MR. RADOVIC: [Interpretation] -- but I am going to abuse yet one

4 more second. I want to say that as for the participation of the BH army

5 in Ahmici, the judgement did not take into account the diary of Witness V,

6 which was admitted into evidence.

7 JUDGE WALD: Thank you, Mr. Radovic.

8 All right, Ms. Glumac.

9 MS. SLOKOVIC-GLUMAC: [Interpretation] Thank you, Your Honour.

10 I would like to say a few things regarding the objections to the

11 form -- vagueness in the form of the indictment.

12 The indictment did not contain charges for specific attacks,

13 attacks on specific houses and persons, rather, and the Prosecutor claims

14 that this was because of the very number of such attacks. Mirjan and

15 Zoran Kupreskic have been convicted for the attack on a single house, so

16 they did not carry out a huge number of the attacks which could not,

17 therefore, be included in the factual descriptions contained in the

18 indictment.

19 We believe that the Trial Chamber, in the Celebici case, took a

20 different stand as regards the requests for making the indictment more

21 specific. The view was different to the one that the Prosecution

22 interpreted. In the Celebici case, the accused was charged with the

23 criminal offence of torture and inflicting serious suffering by inflicting

24 burns on the victim on his genitals with a slow-burning fuse. A large

25 number of witnesses were heard regarding this event, 15 in total, and the

Page 906

1 witnesses testified that the very same accused caused burns to the same

2 victim on his legs by setting his trousers on fire in the time period

3 which was included in the indictment, in the very same location that was

4 also relevant for the indictment, that is, the Celebici camp.

5 The Trial Chamber acquitted the accused of this criminal offence

6 because they, the Trial Chamber, deemed that unspecified accusations were

7 not a part of the indictment.

8 In this case, the Defence feels that because the accusations were

9 not specified, that the Defence was denied the right to a fair trial

10 which, of course, includes the right to prepare a defence. The factual

11 description of the offence must be such that it can be discussed. It must

12 not be overly general.

13 I also believe that the Furundzija case that my colleague

14 describes was not interpreted in a proper manner, because in this case,

15 the Trial Chamber prohibited the Prosecution from amending the indictment

16 as to include new events that happened in another room. The indictment

17 had been amended earlier.

18 The Defence, therefore, feels that we were not advised of the form

19 of the indictment, the contents of the indictment in the proper manner,

20 and the Prosecution informed the Defence that the events in the Suhret

21 Ahmic's house will be the factual underlying of the persecution charge

22 after the testimony by Witness H at the trial. Witness H is the only

23 witness whose testimony underlies the conclusion made by the Trial Chamber

24 regarding the material element of the Prosecution, that is, the actus reus

25 of the Prosecution, as regards Zoran and Mirjan Kupreskic.

Page 907

1 In the pre-trial brief, the Prosecution did not notify Zoran and

2 Mirjan Kupreskic that the charges for persecution will be extended to

3 include some other acts, but merely stated as regards all the accused that

4 after the accused were detained, that new witnesses have emerged which

5 would testify to some other acts. This was then new evidence and a

6 completely new investigation.

7 The Prosecution based the accusations regarding Suhret Ahmic's

8 house exclusively on Witness H's testimony and her statement given on the

9 17th of December, 1993. So this was not new material that emerged in the

10 course of the investigation, it was a statement that the witness gave in

11 December 1993, which the Prosecutor obviously had at the time when the

12 indictment was amended.

13 This statement was served on the Defence immediately before the

14 beginning of the trial, on the 17th of August, 1998. The trial began on

15 the 17th of August. The witness testified on the 2nd of September, and

16 after her testimony, the Prosecutor said that her testimony would be used

17 to prove this part of the charges of persecution relating to the attack on

18 Sukret Ahmic's house. Zoran and Mirjan Kupreskic then were not able to

19 prepare for the examination of this witness because they did not have this

20 information prior to this, and the Defence claims that the Prosecutor

21 expanded the indictment that had already been expanded even more to

22 include the events in Sukrija Ahmic's house.

23 As regards Witness H, the Prosecution claims that the

24 discrepancies pointed out by the Defence are peripheral and unimportant.

25 Since they do not deal with the behaviour of the two accused, they claim

Page 908

1 that the testimony in this regard is consistent. That is not correct.

2 Because in her statement of the 17th of December, 1993, the witness says

3 that she saw Zoran and Mirjan Kupreskic lighting a fire in the upper part

4 of the house, on the upper floor of the house. When testifying before

5 this Tribunal, she said that she never went to the upper floor and that

6 she did not see the two -- the accused setting fire -- setting the house

7 on fire. Zoran and Mirjan Kupreskic have not been charged with setting

8 the house on fire so her first statement is different as to the way that

9 the -- as to what the two accused were doing.

10 As regards the claims of the Defence that Witness H was unable to

11 recognise Mirjan Kupreskic because it was dark, the Prosecutor said that

12 the visibility was not the same in all places. It is unacceptable, but it

13 is acceptable to admit -- one can accept that visibility was not the same

14 inside of the house and outside of it. It was less inside. We cannot

15 accept as relevant the time period when the sun rose because there can be

16 some discrepancies here; but we can accept the claims made by witnesses

17 that it was dark when the attack began, regardless of when the actual

18 attack began. The attack on Sukrija Ahmic's house happened at the very

19 beginning of the attack.

20 The Prosecutor also made an inaccurate statement; namely, that

21 Witness H testified that she recognised Mirjan Kupreskic by his voice.

22 She never said that she recognised Mirjan Kupreskic by his voice but, as

23 is described in the appeal at a glance, she recognised -- she allegedly

24 recognised Zoran Kupreskic by his voice.

25 As regards Witness SA, the Defence once again claims that the

Page 909

1 Defence did not call this witness because the Trial Chamber accepted her

2 statement, and therefore we believed that her statements will be

3 analysed. We believed that it was up to the Trial Chamber to assess all

4 the documents that had been submitted and all the documents that had been

5 enter into evidence.

6 As regards the presence of other units in Ahmici, I would merely

7 like to say that the order issued by Colonel Blaskic referred to by my

8 colleague was issued only to the military police, and that only the

9 military police was tasked with carrying out the attack on the Ahmici

10 area. All the other units were assigned other areas to the south of

11 Ahmici.

12 The Trial Chamber, in its judgement, claims that Mirjan Kupreskic

13 was a member of the active force based on P353, a list of HVO members. We

14 hear that the Prosecution claims that this is not correct. They are, in

15 fact, refuting the conclusions of the Trial Chamber. They claim that this

16 list of HVO members was a list of HVO reservists - reservists. If,

17 indeed, it was a list of reservists, then the thesis is also accepted that

18 Mirjan Kupreskic did not have any active role in the HVO because

19 reservists are civilians in Yugoslavia. All men, after they do their

20 national service, are part of the reserve force. If they are mobilised,

21 they become soldiers.

22 The Prosecutor also claims that Mirjan Kupreskic was mobilised on

23 the 16th of April, 1993, and that that can be seen from a list of

24 mobilised persons. This is Exhibit 335. This is also not correct,

25 because this list does not indicate that Mirjan Kupreskic was mobilised on

Page 910

1 the 16th of April, 1993, but that Mirjan Kupreskic was mobilised in the

2 period between the 16th of April and the 28th of April.

3 JUDGE WALD: I think you've got about one minute more,

4 Ms. Glumac.

5 MS. SLOKOVIC-GLUMAC: Okay, thank you.

6 [Interpretation] If he had been mobilised, the Trial Chamber

7 concludes that he was mobilised on the 16th of April only on the basis of

8 the testimony of Witness H, because she allegedly saw him in an active

9 capacity in Ahmici on that day.

10 The Defence also claims that the contents of this document

11 indicate that Mirjan Kupreskic, that had he been mobilised on the 16th of

12 April, he would not have been a part of the first wave of the attack as

13 the document that I read yesterday clearly indicated.

14 My colleague Radovic also said something that is not correct.

15 Mirjan Kupreskic's Defence did refer to mitigating circumstances in their

16 appeal, and also in its closing brief as regards the personality of Mirjan

17 Kupreskic so these arguments were presented to the Trial Chamber and the

18 Trial Chamber was aware of that. Thank you.

19 JUDGE WALD: Thank you, Ms. Glumac.

20 Mr. Clegg, I think we'll hear about Mr. Josipovic now for 15

21 minutes.

22 MR. CLEGG: "Would" or "could." The submission by the Prosecutor

23 that the lower threshold of "could" is only applicable when there has been

24 trial by jury is, we submit, misconceived. It was never pleaded in the

25 respondent's brief. It has never been suggested in any written brief

Page 911

1 filed that the difference between the two tests is a reflection of the

2 absence of a reasoned judgement in a jury trial. No authority is cited

3 for the proposition advanced. Not one article by one academic quoted in

4 support of it. No dicta of any judge cited. It is bluntly a theory

5 obviously invented since the respondent's brief was filed. It proceeds on

6 a fundamental misunderstanding.

7 First, unlike the United States of America, there is no universal

8 right to trial by jury in the United Kingdom. Trials in Northern Ireland

9 have been proceeding without jury for over 30 years in what we call

10 Diplock courts. There, the judge hearing the trial gives a detailed

11 reasoned judgement in the same format as is done by a Trial Chamber in

12 these proceedings. That detailed reasoned judgement is subject to the

13 same test on appeal, the same "might" test.

14 The case of Clegg I quoted was one such case tried by judge

15 alone. You can see in the quotation that I quoted earlier how the Lord

16 Chief Justice of Northern Ireland Lord Carswell applied the "might" test.

17 In the Republic of Eire, special courts have been sitting in Dublin with

18 no jury for even longer, again applying the same test. The proposal in

19 the United Kingdom to abolish trial by jury for offences of serious fraud

20 is maintaining the same test on appeal.

21 Curiously, the only country that provides any support for the

22 "would" test is the United States of America where there is a

23 constitutional right to trial by jury, unlike those where the "could" test

24 does apply. Analysis reveals the argument is entirely fallacious. The

25 Trial Chamber never knew of the 115 evidence. Therefore, a reasoned

Page 912

1 judgement cannot help in assessing how they might have interpreted such

2 evidence which they didn't know existed.

3 Here, AT may have been believed by the Trial Chamber. He was

4 believed, certainly so far as the vast majority of his evidence is

5 concerned by the Trial Chamber in the Kordic case. But nothing from the

6 reasoned judgement that you have here will assist you in determining what

7 the Trial Chamber would have, in fact, concluded had they had the benefit

8 of that evidence or material before them. "Would," it is suggested, is

9 more responsive to the practice and nature of the Tribunal. Why, we're

10 not told? Why would it be more responsive? We have not been given any

11 explanation. What does responsive mean? We're not told and I, frankly,

12 don't know.

13 The example that I gave when I addressed you first demonstrated

14 the danger of injustice. It has not been suggested that that example was

15 flawed or that injustice would not have flowed from the example that I

16 gave. It is, of course, not irrelevant to remember that different people

17 and different judges can come to different conclusions on the same facts.

18 That is the rationale that lies behind the "might" test applied by the

19 common law. It's a rationale adopted by Lord Cross in the case of

20 Stafford and alluded to him specifically in the course of him opinion.

21 Finally Gallagher is no authority for the proposition advanced by

22 the Prosecutor. If read, it is clear that four of the five judges support

23 the "might" test that I have put forward. The one dissenting judge still

24 not going as far that would put it into the camp identified by

25 Ms. Rashid.

Page 913

1 The Prosecution have, we submit, confused the issues of weight and

2 credibility. They are not the same. Weight is a reflection of the

3 potential impact of fresh evidence on the body of material before the

4 Trial Chamber. It can be assessed by this Chamber. For example, there

5 might be compelling evidence of identification, but the fresh evidence

6 might say that contrary to what was said at trial, the appellant was

7 wearing a black coat and not a green coat, or had a beard as opposed to

8 being clean shaven.

9 Such evidence can be considered as to its weight by an appellate

10 Chamber. In other words you can say, well, even if that, they're right.

11 It's not to be compared with the whole body of evidence that identifies

12 him as being the perpetrator of the crime. It's nothing to do with

13 credibility.

14 Credibility is whether, in fact, the witness is telling the truth

15 when she says the coat is green or black. That is something you can't

16 assess unless you see the evidence, unless the evidence given is so

17 inconsistent with such a body of material perhaps, hypothetically, a

18 photograph, that the evidence could be rejected as being clearly

19 incredible. But absent that, the Appeals Chamber does not have the

20 material with which to assess credibility, but it can assess weight. They

21 are, we submit, quite different concepts.

22 Now, the evidence of AT, two matters must be considered.

23 JUDGE WALD: Do you have to go into private session?

24 MR. CLEGG: Not yet, but in a moment. First, it's said that you

25 cannot reconsider your earlier ruling even if it were to result in

Page 914

1 injustice. Even if it was decided per incuriam. Even if, on reflection,

2 you thought you were wrong you couldn't do anything about it. Res

3 judicata stops you. You have to proceed to an unjust determination of the

4 appeal. That is the submission that has been seriously advanced.

5 There is no Appeal Chamber in the world, that I'm aware of, that

6 proceeds on that basis. You are still seized of the case. It is frankly

7 disingenuous to suggest that you do not have the capacity to correct an

8 earlier error, if error you have made. Of course we submit that that is,

9 perhaps, only of academic importance.

10 It is perfectly clear that the evidence of AT is now on the

11 record, and the Appeal Chamber has held that all the parties and the Court

12 may avail themselves of it. To do otherwise would be absurd. There is no

13 authority for the proposition advanced that evidence can be admitted on to

14 the record in compartments. Joint trials mean joint evidence. Joint

15 appeals mean joint appeals.

16 In every jurisdiction that I'm aware of, evidence admitted where

17 people are tried together is admitted jointly in the trial generally.

18 There is no authority, no judicial support, no citation, no academic

19 argument to support the proposition that evidence can be admitted on to

20 the record compartmentalised. You can only look at it when you are

21 thinking about A; and then you will then look at that when thinking about

22 B; and only look at that when thinking about C. It's difficult to imagine

23 a route more designed to result in injustice.

24 And again, this is an afterthought. It's never advanced by the

25 respondent Prosecutor when the application was made to disclose the

Page 915

1 confidential closing brief in the trial of Kordic. They clearly acceded

2 to the request for us to be given the material there relating to the way

3 in which the evidence of AT was assessed by them at that stage because

4 they appreciated that I, acting on behalf of Drago Josipovic, would be

5 relying on such material in this appeal. If what they are now advancing

6 is concerned, that would be wholly irrelevant.

7 The interpretation that they put forward does violence to the

8 plain words of the 29th of May decision. The Appeal Chamber would, I

9 suggest, never have used these words, "Other parties and the Court may

10 avail themselves of the evidence," if what it was intending to say was:

11 "The other parties but certainly not Drago Josipovic and Mirjan Kupreskic

12 can avail themselves of the evidence. But you didn't say that because you

13 didn't mean it."

14 If you'd intended to depart from the standard practice of

15 admitting evidence on to the record for all parties to rely on, you would

16 have said so and you did say so.

17 In our submission, the example that Her Honour Judge Wald put by

18 way of question to the Prosecutor is a powerful demonstration of the

19 injustice that can result from the approach adopted by the Prosecutor. It

20 was, we submit, a desperate attempt to defeat this appeal by procedural

21 ambush. It reflects a complete absence in any faith they may have in the

22 merits of their appeal.

23 EE. In our submission, to suggest that the appellant is putting

24 forward a strange theory beggars belief. The Prosecutor's cases that the

25 witness has honestly mistaken who was standing next to her with a bomb in

Page 916

1 his hand, and was honestly mistaken who took her husband round the corner

2 and shot him, but was accurate in her identification of Drago Josipovic.

3 Now, if that's not a strange theory, I don't know what is. It was, of

4 course, one accepted by the Trial Chamber, and I must accept that. And I

5 introduce the evidence of AT and rely upon it in order, by that additional

6 evidence, to cast further doubt on the accuracy of the evidence of EE and

7 to thereby demonstrate that the conviction is unsafe.

8 May I go into closed session for just a moment?

9 JUDGE WALD: Closed session.

10 [Private session]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 917

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [Open session]

18 MR. CLEGG: I will be a quick as I can. Just in mitigation, may I

19 say, I have had to deal with matters that weren't pleaded before and I

20 couldn't deal with before.

21 So that leaves us in a position when, on the state of the evidence

22 of the four people that she is there describing, three of them could be

23 proved to be elsewhere, and AT is saying Drago Josipovic also was not part

24 of that group. Now, that evidence is credible. That evidence is

25 relevant. That evidence is believable.

Page 918

1 The Prosecution submit today that it was not relevant. We say the

2 evidence is relevant. I quote from a filing by Mr. Yapa on the 10th of

3 May, he says the evidence is relevant. What's happened to it since then

4 to render it irrelevant?

5 I say that the evidence is capable of belief; it's suggested it's

6 not. I say that it could have an effect on the verdict; Mr. Yapa, in his

7 pleadings, said that the evidence, and I quote, "could have an effect on

8 the verdict if made available at trial." This is Mr. Yapa's, the

9 Prosecutor's, pleading: "This evidence could have an effect on the

10 verdict if made available at trial," filed 10th of May, 2001, paragraph

11 9. Well, we're now told that it can't have an effect on a verdict, that

12 it should be rejected. What's happened since then? We submit, nothing.

13 The evidence is highly relevant. It is credible; it's been

14 advanced by the Prosecutor as being credible in the Kordic case. They've

15 urged the Court to accept it there. It is evidence which, although not

16 accepted in part, was only rejected as to his own personal involvement.

17 There was no determination about Zeljko Livancic or Drago Josipovic. And

18 the murder counts that that man who I represent, Drago Josipovic, the

19 murder counts in this case are entirely dependent on EE's evidence. If

20 the evidence of AT casts any doubt about it, then all accept those

21 convictions must fail. This is, on any view, a very, very weak case with

22 deeply flawed evidence.

23 I'm sorry if I've trespassed slightly over.

24 JUDGE WALD: Thank you, Mr. Clegg.

25 At this point I think we will adjourn for lunch and come back at

Page 919

1 2.00. After that, we will hear Mr. Santic's counsel and Vlatko

2 Kupreskic's counsel. The Prosecution will get a brief reply on its own

3 appeal. We will have the cumulative sentence appeal, and we will have a

4 brief Status Conference so that we can hear from the defendants themselves

5 as to any problems they may have.

6 So we will adjourn till 2.00.

7 --- Luncheon recess taken at 12.45 p.m.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 920

1 --- On resuming at 2.06 p.m.

2 JUDGE WALD: We will resume our proceedings for what appears to be

3 the final stage and I think, Mr. Pavkovic, it's your turn next for 15

4 minutes of rebuttal.

5 MR. PAVKOVIC: [Interpretation] Thank you, Your Honours.

6 It seems to me that it would be right to avail oneself of this

7 opportunity in order to respond to the Prosecutor's response to me. We

8 have all witnessed what the Prosecutor said today briefly and succinctly.

9 If I am repeating today what I have already said yesterday, then I am not

10 doing the right thing.

11 The Prosecutor raised three issues. The first issue is the

12 participation of my client in the events of the 16th of April, 1993. The

13 Prosecutor said, I hope that I shall be quoting him properly, "We abide by

14 our position that confessions of the accused pertain to the guilt as

15 established by the Trial Chamber." This is partly true. It is true that

16 by relying on Witness AT's statement, it turns out that my client

17 confessed this.

18 May I just say a few words in private session, please.

19 JUDGE WALD: Private session.

20 [Private session]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 921

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [Open session]

11 MR. PAVKOVIC: [Interpretation] Anything else I would say in

12 respect of this would be tantamount this repetition to what are already

13 said yesterday. The Prosecutor also raised another issue pertaining to

14 Rule 101(B)(ii). We fully agree with all the arguments presented because

15 we believe that the Prosecutor presented this succinctly, fairly, and

16 correctly. We have nothing to add to that.

17 The third issue that was raised in today's response was the

18 question of the sentence imposed by the Trial Chamber. Yesterday, I

19 referred to three groups of factors which all together and individually

20 have to be reflected in an appropriate sentence. When I refer to

21 appropriate sentence, I was referring to guilt and responsibility. If

22 this was not my view, I would appeal for acquittal.

23 One of the questions I raised yesterday were actually the facts

24 that the Trial Chamber did not assess rightly. I have yesterday -- I

25 analysed these factors yesterday. Also, there are the elements that we

Page 922

1 presented to the Trial Chamber, that is to say, that the Trial Chamber was

2 familiar with this but the judgement does not reflect their attitude

3 towards these elements, whether they were accepted or not. And we believe

4 that these circumstances cast significant light on the personality of the

5 accused and that is certainly one of the important factors for assessing

6 his responsibility.

7 The third group are the circumstances which, by the very nature of

8 things, could not have been considered earlier. Had the Trial Chamber

9 been in a position to look into this, it would certainly have had to pass

10 a decision which would be favorable to the defendant.

11 Finally, the Prosecutor and I agree that this is of significance.

12 Truth to tell, the Prosecutor did say, Your Honours, that it is for you to

13 judge the relevance of this. He does not invoke Rule 101(B)(ii). So that

14 is my response today to the Prosecutor's response.

15 As you can see, I have saved a considerable amount of time.

16 Perhaps it is a bit unusual, I thought that we could have some more time

17 off, but I have a request and I don't know what you're going to say about

18 this, namely, my client has expressed a wish to say a few words in closed

19 session and to address you directly.

20 I would kindly ask you to bear in mind the specific situation that

21 he is in and if nothing else, perhaps that could lead you to an acceptance

22 of that request of his; however, you will be the judges of that. Thank

23 you.

24 JUDGE WALD: Let me ask you, Mr. Pavkovic, though, I will

25 certainly consult with my colleagues on this, but let me ask you whether

Page 923

1 or not your client wishes to address us in relationship to the merits of

2 the case or as to something else.

3 MR. PAVKOVIC: [Interpretation] He wishes to address you on the

4 merits of the case, his responsibility. That is the core of the matter

5 but in a few brief sentences. That's what he told me.

6 JUDGE WALD: I will consult my colleagues and let you know before

7 the end of the proceedings.

8 Let's hear from Mr. Abell, and we'll get that portion. We'll got

9 the rebuttals completed and then let you know later.

10 Mr. Abell.

11 MR. ABELL: Your Honours, during the course of my learned friend's

12 response on behalf of the Prosecution, this or words very near to this

13 were said: When all the matters which we have raised in the Appeals

14 Chamber in these proceedings have all been litigated, that it was all

15 there before for the trial, there's been no additional material, there's

16 been no additional evidence that bears upon the issues.

17 In our respectful submission and with all due deference to the

18 Prosecution, we must submit that that is a fundamental misconception of

19 the way in which this appeal is put on behalf of Vlatko Kupreskic. A vast

20 portion of our appeal relates to additional evidence.

21 Let me, for the sake of clarity, just briefly reiterate the

22 position. There are three grounds of appeal. Ground A, as far as he is

23 concerned, is that the Trial Chamber erred in convicting him of aiding and

24 abetting on the basis of what we have submitted is tenuous evidence. In

25 other words, the evidence presented by the Prosecution at the trial was

Page 924

1 not sufficient for a reasonable Trial Chamber to convict upon.

2 Two very brief examples of that I reiterate. Witness L, leave

3 aside the extra evidence, additional evidence called on it, the

4 identification of Vlatko Kupreskic on the 15th of April is, we submit, on

5 the face of it, fatally flawed because at the same time and place that he

6 purported to have identified Vlatko Kupreskic, he also purported to

7 identify as present Mirko Vidovic who, I remind Your Honours, if I may,

8 was proved beyond any doubt whatsoever to be at the material time in

9 Germany.

10 Another example of the flaws in the Prosecution evidence was that

11 the two exhibits, Exhibit 377 and Exhibit 378, the two pieces of paper

12 that dealt with the involvement of Vlatko Kupreskic with the police was

13 really all the evidence available to the Trial Chamber in relation to that

14 topic, and we submit that the Trial Chamber placed far too much weight

15 upon those two pieces of paper in reaching the conclusions that they did

16 and without more available to them, they shouldn't have reached the

17 conclusions that they did.

18 That is ground A, and this is where, perhaps, there has been

19 misunderstanding in the way the Prosecution have dealt with their reply.

20 Grounds B and C are to be taken together. They are additional to ground A

21 and they are, if you like, in the alternative to ground A.

22 Grounds B and C depend upon the additional evidence which we

23 called, of course, over the evidentiary hearings which took place earlier

24 on this year. AT, ADA, ADB, ADC, and the statement of Miro Livancic, the

25 statement of Livancic. The real basis of that part of appeal is this:

Page 925

1 That this evidence, the additional evidence was not called at the trial

2 and it might have substantially changed the Trial Chamber's assessment of

3 the evidence upon which Vlatko Kupreskic was convicted. This, we submit,

4 renders the conviction unsafe and occasions a miscarriage of justice. It

5 is therefore not correct to say that no additional evidence has been

6 called which really bears on the issues.

7 Can I deal with some other inaccuracies? It was said in the

8 course of the response that Vlatko Kupreskic was, at one point, charged

9 with aiding an abetting persecution. As we understand the position, he

10 was never charged with that. The charge was Count 1: Persecution. He

11 was convicted of the lesser offence of aiding and abetting persecution.

12 I turn to what was said about ADA. It was said that because he

13 was a so-called negative witness, that he was of far less importance of

14 what was called a positive witness on alibi, and that that meant that his

15 evidence wasn't as important.

16 Can I demonstrate, I hope briefly, the falsity of that argument?

17 Alibi evidence can be a two-sided coin. One can establish an alibi

18 firstly by calling witnesses to establish that the accused was at a place

19 other than the scene of the crime; elsewhere. That, of course, is the

20 literal translation of the Latin word "alibi."

21 But the other side of the coin -- that first side is the so-called

22 positive witnesses, as my friend postulates it, but the other side of the

23 coin that one can establish the defendant's absence from the scene of the

24 crime by calling a witness who was at the scene of the crime and who would

25 be able to say that the defendant wasn't there, so-called negative

Page 926

1 witness. Evidence of that nature can be compelling. It is not right to

2 say that because that's a negative witness, it's of less importance.

3 Can I give an example of something that happened this morning?

4 Mr. Clegg was unfortunate enough to find himself about a quarter of an

5 hour late at the beginning of the proceedings this morning. Any of us in

6 this court who would be able to swear on our oaths that Mr. Clegg came

7 into court 15 minutes late would be able to provide compelling evidence of

8 his absence from this court. But we would, on the Prosecution's analysis,

9 all be negative witnesses because we can't say where Mr. Clegg physically

10 was during those missing 15 minutes. Negative alibi evidence can be

11 compelling.

12 ADA is, we submit, capable of being an important witness. The

13 weight that Your Honours attached to his evidence is a matter for Your

14 Honours, but we reject the view that because he's negative, he is in some

15 way to be devalued.

16 I turn to the police evidence and what was said about that. It

17 was suggested that what was called by the Defence in the Rule 115 hearing

18 in some way assisted the Prosecution and was inconsistent with the

19 appellant Vlatko Kupreskic's case. Again, we reject that. That simply is

20 not correct.

21 I will remind the Appeals Chamber of the reference of Vlatko

22 Kupreskic's evidence at trial in which -- it's transcript at page 11857.

23 I don't propose to take up time reading it out now, but from page 11857

24 onwards, he provides an explanation until 11862, approximately, he

25 provides an explanation unassisted by the documents that we were able to

Page 927

1 produce on his behalf on the Rule 115 evidentiary hearing that from his

2 recollection and memory as to how he came to be working in the police,

3 working on an inventory, et cetera, and how he was really doing no other

4 work and why the documents misdescribe him in the way that he does, in the

5 way that they do.

6 The evidence which we called on this in support of his case on

7 this not only supports him but amplifies what he has to say, because those

8 witnesses were able to speak directly to documents which supported their

9 account and thus his account as to his involvement with the police; for

10 example, the monthly logbook showing the wages paid which coincide with

11 what witnesses said about the dates that he worked. So it is, with

12 respect, a misrepresentation of the evidence to say that they did not

13 assist him.

14 Witness T, it was said that he had used the word "guns," he was

15 able to describe the weapons. We stand by what we said in our oral

16 argument yesterday. When he gave evidence at transcript page 2946, line

17 10 through to 19, he is asked to recall what he saw. "Yes, I remember.

18 It was in October. I saw him and his wife and somebody I don't know, a

19 man, taking out of the car, the make was a Yugo, and they took out weapons

20 and they were taking them into the house," and he says he was 50 metres

21 away and so on.

22 Yes, the word "guns" does appear later on in the transcript, but

23 this is the point: The word "guns" appears at page 2953, line 20 --

24 forgive me, at line 18: "Now, a moment ago you talked about seeing Vlatko

25 Kupreskic in 1992." Answer: "Yes." Then these words from the

Page 928

1 Prosecutor; if I may say, a classic example of a leading question.

2 Question: "Taking some guns out of his car and putting them into his

3 house," and then he was asked to look at a photograph. "It was here" is

4 his answer. He didn't even adopt that part of the leading question, and

5 then they move on to deal with another topic. Witness T never said that

6 he saw guns; he did not describe the nature of the weapons.

7 Witness H is described in my learned friend's reply as a witness

8 who sees Kupreskic on the morning of the attack, and it is said that that

9 is very persuasive evidence, et cetera, et cetera, of his involvement. We

10 must keep our feet on the ground here, with respect. The position is

11 this: that neither the Prosecution nor the Trial Chamber were able to

12 ascribe any role to Mr. Kupreskic. It wasn't suggested that he was doing

13 anything whatsoever, and indeed in the judgement it is made quite clear

14 that there is no evidence as to what he was doing. Conclusions were

15 formed from -- were arrived at from his presence. I repeat: It may well

16 be, given that at one stage he says he was fleeing his house and at a

17 later stage he says he was coming back, it may be that that presence is

18 consistent with innocence.

19 The point was made that there was a lot of firepower later on in

20 the day coming from Vlatko Kupreskic's balcony. I stress, nobody

21 suggested that Vlatko Kupreskic was there at that time. Evidence was

22 given at trial by Colonel Watters who indicated that the positioning of

23 Vlatko Kupreskic's house had some strategic importance to anyone who would

24 want to use that balcony to fire from, and he agreed that it was quite

25 possible that soldiers in this sort of situation would simply take over a

Page 929

1 house like that, take it by force. The mere fact that soldiers were

2 firing from that balcony cannot be evidence of itself that that was done

3 with permission.

4 Please could we go briefly into private session.

5 JUDGE WALD: We can, but it must be very brief because you've got

6 about two minutes more. But go ahead.

7 MR. ABELL: I would crave just a couple of extra minutes to deal

8 with the extra disclosure that I had which is of importance, if I may.

9 JUDGE WALD: I'm setting a limit right now for you of four minutes

10 more.

11 MR. ABELL: Thank you, Your Honour. Closed session, please.

12 JUDGE WALD: Are we in closed session?

13 MR. ABELL: Private session, rather.

14 JUDGE WALD: Private session, rather.

15 [Private session]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 930

1

2

3

4

5

6

7

8

9

10

11

12

13 Page 930 redacted private session

14

15

16

17

18

19

20

21

22

23

24

25

Page 931

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [Open session]

6 MR. ABELL: Can I really round it off now --

7 JUDGE WALD: Yes.

8 MR. ABELL: -- by saying this: We submit that there are -- there

9 were in this case various disparate strands of evidence which was

10 available to the Trial Chamber; that the additional evidence which we have

11 placed before the Court puts that evidence in a new light and that the

12 Trial Chamber should act -- the Appeals Chamber should act upon that fresh

13 evidence as having neutralised the evidence called at trial.

14 I end by reminding Your Honours of paragraph 986 to 7 of the

15 Celebici case dealing with circumstantial evidence: "It is not sufficient

16 that it is a reasonable conclusion available from the evidence." "A

17 reasonable conclusion available from the evidence." "It must be the only

18 reasonable conclusion available. If there is another conclusion that is

19 also reasonably open from the evidence which is consistent with the

20 innocence of the accused, he must be acquitted." We say that that

21 additional evidence opens the door to that extra interpretation of the

22 evidence called at trial.

23 JUDGE WALD: Thank you, Mr. Abell.

24 MR. ABELL: Those are my remarks.

25 JUDGE WALD: Mr. Yapa, the government has a brief opportunity to

Page 932

1 reply -- I'm sorry, the government, I was back in my home jurisdiction, I

2 apologise. The Prosecutor. The Prosecutor has a brief opportunity of

3 five minutes or less to reply to the responses to its appeal on the

4 cumulative conviction, although there seems, frankly, to be little dispute

5 going on. But if you have something to say on that, go ahead.

6 MR. YAPA: It will be a very, very short submission. It may not

7 need five minutes, but my learned friend here will make the submission.

8 MS. BOELAERT-SUOMINEN: Your Honour, I will be very brief.

9 The Prosecution seeks in its main appeal a reversal of the

10 acquittals of Drago Josipovic and Vladimir Santic on Counts 17 and 19 of

11 the indictment on the basis of the principles of concurrence of offences

12 governing in the legal system of this Tribunal.

13 In your order of the 30th of May, you requested that the

14 respondents respond to our amended appeals brief which was filed on the

15 15th of May. Counsel for Drago Josipovic did so and conceded in his

16 written response that the bulk of the arguments and authorities developed

17 or advanced by the Prosecution were legally sound, and in oral argument he

18 confirmed that concession.

19 Counsel for Drago Josipovic, however, took issue with an

20 additional error which the Prosecution said that was in the sentencing of

21 Drago Josipovic, but on other counts, persecution and murder, we hope that

22 we have been able to clarify the remedy which we seek on this point, it

23 would just be satisfied with an obiter dictum on this point.

24 As for the respondent Vladimir Santic, his counsel filed a

25 respondent's brief on the 2nd of July of this year, but as far as we can

Page 933

1 see, we were unable to determine whether the counsel for Vladimir Santic

2 had taken into account the new jurisprudence which had come out from this

3 Tribunal, especially from the Appeals Chamber since the judgement rendered

4 on the 20th of February in the Celebici appeal. We also responded to

5 that -- we replied to that as best as we could, and we submit that his

6 written response should be rejected. We have heard no further oral

7 argument on this question so we would just confirm our written reply in

8 reply to his response.

9 There is one additional matter, if you allow me Your Honours.

10 There was one other issue relating to the question of concurrence of

11 offences which arose during the briefing of this case, and this relates to

12 a ground of appeal raised by counsel for Drago Josipovic relating to the

13 cumulative convictions between persecution and murder and persecution and

14 inhumane acts. This relates to two offences, two pairs of offences under

15 Article 5 of the Statute. But when we read the reply brief, we understood

16 that this ground of appeal had been abandoned and we heard no further oral

17 submissions on this point.

18 This concludes the Prosecution's reply in relation to its own

19 appeal. If there are no further questions, I will stand down.

20 JUDGE WALD: Thank you.

21 Let me just clarify: Mr. Santic, are you -- sorry. Mr. Pavkovic,

22 are you now going to clarify the business of whether that ground has been

23 abandoned? Very briefly, just tell us whether or not it's still a ground

24 or whether or not you've abandoned it. I'm sorry.

25 MS. BOELAERT-SUOMINEN: Your Honour, it was counsel for Drago

Page 934

1 Josipovic who --

2 JUDGE WALD: Oh, I'm sorry. All right. Well, let me get that

3 straightened out. I'll talk to you in just a minute. Let me find out

4 from Mr. Clegg if that ground has been abandoned it or not.

5 MR. CLEGG: Yes, as indicated in our written brief, we abandoned

6 the ground.

7 JUDGE WALD: All right. Thank you.

8 Now, Mr. Pavkovic, do you have something other than your pending

9 request for Mr. Santic to speak?

10 MR. PAVKOVIC: [Interpretation] No. I just wish to respond to the

11 Prosecutor that we also --

12 JUDGE WALD: Go ahead. Well, that you also what?

13 MR. PAVKOVIC: [Interpretation] I wish to respond that we also

14 espoused this, that this is the position of the Defence of Vladimir

15 Santic, the most recent judicature regarding cumulative charges.

16 Actually, as my colleague Mr. Clegg had put it in his written

17 submissions.

18 JUDGE WALD: All right. That's fine. Now, let me respond to your

19 earlier request. The Appeals Chamber will hear Mr. Santic, but just for

20 about three minutes.

21 MR. PAVKOVIC: [Interpretation] Thank you.

22 JUDGE WALD: But I do want to ask you, do you think that requires

23 private session or not?

24 MR. PAVKOVIC: [Interpretation] Yes, certainly, by your leave,

25 could it please be a private session?

Page 935

1 JUDGE WALD: All right.

2 [Private session]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 936

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [Open session]

6 JUDGE WALD: Mr. Zoran Kupreskic, if he wishes to say anything

7 concerning conditions of detention.

8 THE APPELLANT Z. KUPRESKIC: [Interpretation] Your Honours, I have

9 nothing to say relating to the conditions of detention; however, I do have

10 something else to say if I may be allowed to do so.

11 JUDGE WALD: Well, actually, this is -- the Rule 65 bis Status

12 Hearing is generally concerning the conditions of detention rather than

13 anything to do with the merits of the proceedings. So I think perhaps you

14 should limit yourself to that. Do you have any complaints about the

15 conditions in which you are being held?

16 THE APPELLANT Z. KUPRESKIC: [Interpretation] No, I have no

17 complaints. Can I just ask one question?

18 JUDGE WALD: Yes.

19 THE APPELLANT Z. KUPRESKIC: [Interpretation] When asked on a

20 previous occasion, I was able to let you know as to the manner in which we

21 are informed in our own language of the proceedings. You have promised us

22 that you will do all that you can -- I think it was sometime in March or

23 perhaps February -- to alleviate that, and after my remark and after your

24 response, everything went on as it had before.

25 I have here a file detailing how we get documents in our

Page 937

1 language. We get them so late that we -- they are of no use to us. This

2 whole year has been such that we were absolutely unfamiliar with the

3 proceedings apart from what was going on during the actual hearings, and

4 the lawyers cannot inform us about it because they do not have enough time

5 to translate the documents they receive in English and to discuss those

6 issues with us. So we have not been involved in the whole process at

7 all. I repeat I have already said that it was about three or four months

8 ago.

9 I know this is now too late, but I still want to go on record and

10 to let you know that the preparations for this appeal -- for the appeal

11 proceedings went on without our direct involvement.

12 JUDGE WALD: Mr. Kupreskic, I appreciate your raising it again.

13 It did not go ignored. After the March conference, we did speak to the

14 counsel and to the registry to see if we could in some way facilitate the

15 translation of your documents.

16 Apparently, the process of inquiry as to that is still going on.

17 I'm sorry it has not produced any more expeditious results. It is

18 probably a very complex process by which documents are filed and to get

19 them to the translation, and still in time for the proceedings to go on.

20 I believe that in most cases, we have counted on a part of the Defence

21 team being able to fulfil that function, but I'm glad you raised it

22 again. We will not abandon it. We will keep seeing if there is some way

23 in which we can make it more facilitous [sic] so that even if you don't

24 benefit from it, the next group of defendants will. Thank you.

25 THE APPELLANT Z. KUPRESKIC: [Interpretation] This is precisely why

Page 938

1 I wanted to say that. I know that it will be of no use to us, but I do

2 not want to see other accused face the same difficulties and the same

3 level of unfairness in the proceedings. This is why I raised this issue.

4 JUDGE WALD: Thank you.

5 Mr. Mirjan Kupreskic. Do you have any complaints, comments, about

6 the conditions in which you are being held?

7 THE APPELLANT M. KUPRESKIC: [Interpretation] Your Honours, no, I

8 have nothing to add to what Zoran said, and as regards conditions of my

9 detention, I have no complaints. I would like to thank you for your

10 concern.

11 JUDGE WALD: Thank you. Mr. Vlatko Kupreskic.

12 THE APPELLANT V. KUPRESKIC: [Interpretation] Your Honours, since

13 this is the very end of my trial, Your Honours, I wish first of all to

14 thank you for listening so carefully to my Defence, for all the attention

15 you have accorded to it. I would also like to sincerely thank you for all

16 the decisions you have rendered in my case.

17 My family, my friends, and myself are convinced that your final

18 decision will be good for me. We are deeply convinced of this because I

19 simply am not guilty. Thank you very much.

20 JUDGE WALD: All right. Mr. Josipovic.

21 THE APPELLANT JOSIPOVIC: [Interpretation] Your Honours, I have no

22 complaints to the conditions in the detention unit. I would like to

23 merely join in with -- to what Zoran has said.

24 JUDGE WALD: Thank you. I'll make note of that.

25 And finally, Mr. Santic, do you have anything to say about

Page 939

1 detention conditions?

2 THE APPELLANT SANTIC: [Interpretation] Your Honours, no, I have no

3 complaints. Thank you.

4 JUDGE WALD: Thank you. Well this concludes, then, the appeals

5 stage. As you know, the Judges will work very expeditiously, as

6 expeditiously as they can, and we would hope to have the decision on

7 appeal within the next few months. Thank you. Court is adjourned.

8 --- Whereupon the Appeals Hearing adjourned at

9 2.50 p.m. sine die

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25