Tribunal Criminal Tribunal for the Former Yugoslavia

Page 940

1 Tuesday, 23 October 2001

2 [Judgement]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 1.50 p.m.

6 JUDGE WALD: Good afternoon, ladies and gentlemen. The Appeals

7 Chamber of this International Tribunal is meeting today pursuant to a

8 Scheduling Order issued on the 8th of October designating this date of

9 October 23rd, 2001 as the day for delivery of judgement in the appeals of

10 Prosecutor versus Zoran Kupreskic et al.

11 The registrar will make copies of the written judgement available

12 to the parties toward the end of this hearing. I will not read out the

13 text of the judgement except for the disposition, but following the

14 practice of this Tribunal, I shall limit myself to a summary. But I

15 emphasise that the only authoritative account of the Appeal Chamber's

16 conclusions and its reasons are to be found in the written judgement.

17 First I would like to ask the counsel for the parties to identify

18 themselves, beginning with the Prosecution.

19 MR. YAPA: Thank you, Your Honour. I'm Upawansa Yapa, appearing

20 for the Prosecution. With Mr. Anthony Carmona, Mr. Fabricio Guariglia,

21 Ms. Sonja Boelaert-Suominen, and Ms. Norul Rashid. Mr. Wolfgang Sakulin

22 is our case manager. Thank you.

23 JUDGE WALD: Thank you. I would like the Defence counsel to

24 begin. You may begin, Mr. Radovic.

25 MR. RADOVIC: [Interpretation] Good afternoon, Your Honours. My

Page 941

1 name is Ranko Radovic, Defence counsel for Zoran Kupreskic, and with me is

2 Mr. Tomislav Pasaric, the co-counsel.

3 JUDGE WALD: Thank you.

4 MS. SLOKOVIC-GLUMAC: [Interpretation] Good afternoon, Your

5 honours. My name is attorney Jadranka Slokovic-Glumac for Mirjan

6 Kupreskic and co-counsel lawyer Desanka Vranjican.

7 MR. ABELL: Good afternoon, Your Honour. I appear on behalf of

8 Vlatko Kupreskic, Anthony Abell, together with my co-counsel, Mr. John

9 Livingston.

10 MR. PAVKOVIC: [Interpretation] Good afternoon, Your Honours. My

11 name is attorney Petar Pavkovic. I am Defence counsel for Vladimir

12 Santic.

13 MR. CLEGG: William Clegg and Valerie Charbit for the appellant

14 Josipovic.

15 JUDGE WALD: Thank you. I would next like to be assured that all

16 of the defendants are able to hear these proceedings by their microphones

17 in the language that they can understand. If you would just nod, to make

18 sure that ... Thank you.

19 Now, before beginning to read out the summary, I would like to

20 express my thanks to both the Prosecution and Defence counsels for their

21 cooperation during this appeal, and I'd also like to take this opportunity

22 to thank Mr. Yapa, because he is appearing, as I understand, before this

23 Chamber for the last time as the senior appeals counsel and will move on

24 within the Prosecutor's office to a different position of senior trial

25 attorney. Thank you all.

Page 942

1 I will now begin the summary of the judgement.

2 Around dawn on the morning of April 16, 1993, Bosnian Croat forces

3 engaged in a surprise attack on the Bosnian Muslims inhabitants of Ahmici,

4 a small village located in Central Bosnia. The Trial Chamber found this

5 was not a lawful combat operation but, rather, a deliberate attack on

6 civilian Muslims by the Croatian Defence Council, otherwise known as HVO,

7 as part of a campaign to cleanse the village of Ahmici of its Bosnian

8 Muslim inhabitants, which in turn was part of a broader strategy of

9 expelling Bosnian Muslims from the Lasva River Valley region.

10 Specifically, the Trial Chamber found that over 100 civilians, including

11 women and children, were killed in Ahmici that morning, and that 169

12 Muslim homes were destroyed along with the two mosques in the village.

13 The Presiding Judge of the Trial Chamber said this:

14 "... what happened on April 16th in Ahmici has gone down in

15 history as comprising one of the most vicious illustrations of man's

16 inhumanity to man. Today the name of that small village must be added to

17 the long list of previously unknown hamlets and towns that recall the

18 abhorrent misdeeds and make all of us shudder with horror and shame:

19 Dachau, Oradour sur Glane, Katijn, Marzabotto, Soweto, My Lai, Sabra and

20 Shatila, and so many others."

21 This case is one of several emanating from the Ahmici massacre,

22 some of which have involved high-level civic and military leaders from the

23 region.

24 The Trial Chamber had before it six Bosnian Croat

25 defendants all of whom were inhabitants of Ahmici or the surrounding

Page 943

1 area. Only one held a formal military command position. The rest worked

2 in the local area. They were store owners, factory workers, and the like,

3 who up until the war lived out their lives in relative harmony with their

4 Muslim neighbours. Two of the defendants Zoran and Mirjan Kupreskic are

5 brothers, and a third, Zlatko Kupreskic, is their cousin.

6 One of the defendants, Dragan Papic, was acquitted of all charges

7 following the trial. The remaining five defendants were all convicted of

8 persecution as a crime against humanity. Zoran, Mirjan, and Vlatko

9 Kupreskic were acquitted of the remaining counts against them which had

10 alleged murder, cruel treatment, or inhumane acts as crimes

11 against humanity or violations of the laws or customs of war. They were

12 sentenced to ten, eight, and six years imprisonment respectively. In

13 addition to persecution, Drago Josipovic, and Vladimir Santic were each

14 found guilty on one count of the murder and one count of inhumane acts

15 both as crimes against humanity but acquitted on one count of murder and

16 one count of cruel treatment as violation of the laws or customs of war.

17 They were sentenced to a total of 15 and 25 years imprisonment

18 respectively.

19 Today the Appeals Chamber decides the appeals brought by the

20 Prosecution and each of the defendants against the judgement rendered by

21 the Trial Chamber two years ago. The Prosecution's appeal is confined to

22 the legal issue of whether the Trial Chamber erred in declining to

23 convict Josipovic and Santic for violations of the laws or customs of war

24 under Article 3 as well as for crimes against humanity under Article 5 of

25 the Statute based on the same underlying conduct.

Page 944

1 Deciding the challenges levied against convictions and sentences

2 by the five Bosnian Croat villagers who were almost two years ago found

3 guilty by the Trial Chamber has proven to be a fact-intensive exercise.

4 This appeal was also characterised by an extremely complex pre-appeal

5 process in which 26 separate motions to introduce new evidence on appeal

6 were disposed of under Rule 115 of the Tribunal's Rules of Procedure and

7 Evidence.

8 The conviction of one defendant, Vlatko Kupreskic, hinges upon a

9 finely woven web of circumstantial evidence that was accepted as proof

10 beyond reasonable doubt by the Trial Chamber. In the case of the

11 remaining four defendants, each of the guilt of each one has been

12 determined principally on the basis of a single witness who placed them at

13 a particular location when a murder or expulsion occurred. Most of these

14 accused disputed the identification evidence given by the witnesses

15 against them and claimed that the critical witness testimony was too

16 slender a reed upon which to establish their participation in the Ahmici

17 attack. Thus the Appeals Chamber has been confronted with an issue that

18 domestic jurisdictions have struggled with over centuries: The

19 circumstances in which it is reasonable for a finder of fact to rely upon

20 identification evidence given by a single witness.

21 In addition to their main contention that the evidence was too

22 weak to support their convictions, several accused raised procedural

23 challenges which they claim cast serious doubt upon the fairness of their

24 trial.

25 The function of this Tribunal is to decide the guilt or innocence

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1 of individual accused according to standards of procedure and evidence

2 that commend themselves to all civilised nations. Its Statute requires

3 that the accused be "informed promptly and in detail ... of the nature and

4 cause of the charges against him" and the Tribunal has adopted a "beyond

5 reasonable doubt" standard for conviction. Above all, it has striven to

6 follow the principle laid down by the First Chief Prosecutor at Nuremberg

7 that we must "establish incredible events by credible evidence." It is

8 with these cautions in mind we have examined the voluminous Trial Record

9 on which the convictions of the five accused before us were based and have

10 come to the following conclusions:

11 The judgement commences with a section in which we consider

12 general issues common to all or several of the appeals brought by the

13 defendants. The Appeals Chamber underscores that its function is not to

14 carry out a trial de novo but, rather, is limited to considering specific

15 errors of law or fact occasioning a miscarriage of justice. The appeal

16 procedure is not a forum for parties to air complaints they have about the

17 trial or the judgement regardless of how immaterial these matters might be

18 to the findings reached by the Trial Chamber.

19 In the judgement, we discuss at length the standards for Appellate

20 Court review of factual findings by a Trial Chamber. We believe the time

21 has arrived for a thorough discussion of this aspect of appellate review.

22 It has become clear that more and more appeals before this Tribunal are

23 focusing on the factual basis underpinning the judgements rendered by the

24 Trial Chambers as increasingly the overriding legal issues become more

25 settled with escalating trials and appeals.

Page 947

1 As to the circumstances in which an Appeals Chamber will intervene

2 to overturn factual bindings made by a Trial Chamber. We will reiterate

3 the Trial Chamber must be given a margin of deference and that the Appeals

4 Chamber will intervene only if the evidence relied on by the Trial

5 Court --

6 THE INTERPRETER: Kindly slow down for the interpreters.

7 JUDGE WALD: Thank you. -- could not have been accepted by any

8 reasonable Tribunal or where the evaluation of the evidence is wholly

9 erroneous. Nonetheless, we emphasise that a Trial Chamber is expected to

10 be especially alert to the vagaries inherent in identification evidence,

11 particularly where the purported identification has been made under

12 difficult conditions. A common denominator in the approaches adopted by

13 domestic jurisdictions around the world is the need to exercise extreme

14 caution before proceeding to convict a defendant on the basis of a single

15 identification witness. Where a finding of guilt is made on the basis of

16 identification evidence given by a witness under difficult circumstances,

17 the Trial Chamber must rigorously implement its duty to provide a reasoned

18 opinion.

19 A significant issue in this appeal has been the standards

20 governing reconsideration of the Trial Chamber's findings in light of

21 additional evidence admitted on appeal. During the past few years, the

22 changing political climate in some states of the former Yugoslavia,

23 resulting in the opening of war archives and the release of documents

24 formerly unavailable to the parties at trial, has prompted a deluge of

25 applications for the admission of additional evidence under Rule 115. The

Page 948

1 Appeals Chamber therefore takes this opportunity to clarify some of the

2 standards governing the application of Rule 115. In particular, the

3 standard to be applied by the Appeals Chamber in finally determining

4 whether in light of additional evidence admitted a miscarriage of justice

5 has occurred was a subject of strenuous debate by the parties. After

6 careful conversation, the Appeals Chamber has decided against importing

7 tests from domestic jurisdiction such as a so-called "would" or "could"

8 test. Rather, the relevant standard is whether the appellant has

9 established that no reasonable tribunal of fact could reach a conclusion

10 of guilt based on the evidence before the Trial Chamber together with the

11 additional evidence admitted during the appeal.

12 We turn now to the specific appeals against conviction and

13 sentence of the five individual defendants before. First Vladimir

14 Santic.

15 At trial, Vladimir Santic vigorously contested his guilt, relying

16 upon a defence of alibi. He was, he said, not in Ahmici during the

17 16th April attack. Since his conviction, Santic has admitted that he was

18 the commander of the 1st Company of the 4th Battalion of the HVO military

19 police and that he was a member of one of the groups that descended

20 upon Ahmici in the early morning hours of 16 April.

21 However, he maintains his objections to certain findings made by

22 the Trial Chamber regarding the extent of his participation in the Ahmici

23 events. The Appeals Chamber considers that there was ample credible

24 evidence before the Trial Chamber that Santic was both commander of the

25 1st Company of the 4th Battalion of the HVO military police and the

Page 949

1 anti-terrorist unit known as the Jokers that was formed within the 4th

2 Battalion. It was therefore reasonable for the Trial Chamber to infer,

3 given the participation of these units in the Ahmici attack, that Santic

4 carried out a command role. It was also open to the Trial Chamber to

5 conclude, as it did for the purposes of sentencing, that as part of his

6 command role, Santic passed on orders relating to the attack from his

7 superiors to subordinates.

8 Therefore, the Appellate Chamber rejects Santic's claim that the

9 evidence of Witness AT, admitted as additional evidence on appeal, casts

10 doubt upon the Trial Chamber's findings regarding his command role. For

11 the purposes of Santic's appeal, Witness AT is not a credible witness

12 whose testimony impugns the basis of the Trial Chamber's verdict. The

13 Appeals Chamber emphasises further that the interposition by Santic of a

14 new Defence after trial through the testimony of Witness AT must be viewed

15 with extreme scepticism.

16 However, the Appeals Chamber does accept that the Trial Chamber

17 was mistaken in inferring for the purposes of sentencing that Santic was

18 involved in the overall strategic planning of the attack. Simply put, the

19 Prosecution adduced no evidence at trial that Santic was amongst the

20 architects of the Ahmici assault strategy and this fact should not have

21 entered into his sentencing decision.

22 A related ground of appeal raised by Santic is that the amended

23 indictment did not allege that he held a command position or played a

24 command role during the attack. The Appeals Chamber emphasises that it

25 would have been preferable to allege in the amended indictment that Santic

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Page 951

1 held a command position, rather than simply describing him as an HVO

2 soldier. However, the charges brought against him were based upon his

3 individual participation in the attack and not on a theory of command

4 responsibility. While it is true that the Trial Chamber nonetheless

5 relied upon his command role as an aggravating factor for sentencing,

6 there is no legal requirement that the Prosecution plead aggravating

7 factors in an indictment. Furthermore, the Appeals Chamber underscores

8 that even after knowing the Prosecution had adduced evidence about his

9 command role during the trial, Santic made no effort to dispute it but

10 instead continued to defend himself by relying upon a false alibi.

11 The Appeals Chamber also rejects Santic's claim that the Trial

12 Chamber erred in its assessment that he played an active role in the

13 attack on the Puscul home on the morning of 16 April. For reasons

14 discussed in the judgement, Witness AT's claim that Santic did not

15 participate in the attack but held back and leaned against the wall is not

16 sufficiently reliable to cast doubt on the Trial Chamber's determination

17 in this regard.

18 Turning to sentencing matters, Santic has argued that since his

19 conviction he has accepted guilt and expressed sincere remorse for his

20 participation in the attack and that he has cooperated substantially with

21 the Prosecution by assisting them with their investigations. The

22 Prosecution has verified Santic's cooperation. The Appeals Chamber

23 accepts that Santic has, to a limited degree, accepted responsibility for

24 his role in Ahmici. Furthermore, although there is nothing in the Statute

25 or Rules of this Tribunal expressly addressing the issue, the Appeals

Page 952

1 Chamber finds that, in appropriate cases, cooperation by an accused

2 between conviction and appeal may justify a reduction in the sentence,

3 depending on the circumstances of each case and the degree of cooperation

4 rendered. In the present case, we find that a reduction in sentence is

5 justified.

6 In sum, we find that the Trial Chamber erred only in inferring

7 that Santic assisted with the strategic planning of the attack, and

8 considering this as an aggravating factor in his sentencing. In

9 combination with his acceptance of partial guilt and his substantial

10 post-conviction cooperation with the Prosecution, the Appeals Chamber

11 considers him eligible for a reduction in sentence. The Appeals Chamber

12 has found no merit in any other ground of appeal regarding conviction and

13 sentence.

14 Drago Josipovic. Drago Josipovic advanced four grounds in support

15 of his appeal. First, he complained that the Trial Chamber erred by

16 returning a conviction for persecution based on the evidence of Witness

17 DD, who testified that Josipovic was a member of the group that attacked

18 the house of Nazif Ahmic on 16 April. This attack was not pleaded in the

19 amended indictment. Zoran and Mirjan Kupreskic make a similar argument,

20 to which we will turn later, regarding the vagueness of the persecution

21 count in the amended indictment. It is therefore appropriate at this

22 juncture to clarify some of the relevant general principles governing

23 pleading practices before the Tribunal.

24 Each and every accused person brought before this Tribunal has the

25 right to be informed of the nature and cause of the charges against him

Page 953

1 and to have adequate time and facilities for preparation of his defence. This

2 guarantee enshrined in Article 21 of the Statute is at the very heart of

3 an accused person's right to a fair trial. In each indictment the

4 Prosecution must set out the material facts underpinning the crimes

5 alleged in enough detail to clearly inform the accused of the charges

6 against him and allow him to prepare his defence. In contrast, there is

7 no requirement to include in the indictment reference to the evidence by

8 which such material facts are to be proved.

9 Precisely what constitutes a material fact so as to require its

10 inclusion in the indictment cannot be determined in the abstract. Where

11 the Prosecution allege that an accused personally committed a discrete

12 number of criminal acts, the material facts will include matters such as

13 the identity of the victim, time and place of the events, and the means by

14 which the acts were committed. There may, however, be other cases in

15 which the sheer scale of the alleged crimes makes it impracticable for the

16 Prosecution to include this kind of detail. An example would be where the

17 Prosecution alleges an accused participated as a member of an execution

18 squad in killing hundreds of men, or where in exercising command

19 authority, an accused ordered an attack on a town, resulting in hundreds

20 of civilian deaths. The nature of such a case would not demand each and

21 every victim be identified, although the Prosecution should attempt to do

22 so to the extent it is able. The present case, however, does not fall

23 into that category.

24 In relation to Josipovic, the allegations against him in the

25 amended indictment were broad-ranging. He was accused of persecution

Page 954

1 based on systematic killing of Bosnian Muslims and the comprehensive

2 destruction of their property, as well as the organised detention and

3 expulsion of Muslims from the area of Ahmici-Santici. However, at trial,

4 the Prosecution sought only to prove that he participated in attacks on

5 three specific Bosnian Muslim houses in Ahmici. The Prosecution could and

6 should have included specific details in the indictment about the handful

7 of attacks in which it sought to implicate Josipovic.

8 Admittedly, persecution, as a crime against humanity under Article

9 5, is a broad offence, often comprising a series of acts. However, the

10 so-called umbrella nature of the crime does not release the Prosecution

11 from its obligation to specifically plead in the indictment the material

12 facts on which the persecution charge is based with the same detail

13 required for other crimes. The crime of persecution cannot be regarded as

14 a catch-all for any criminal conduct on the part of the accused that

15 emerges during the trial and is not pleaded in the indictment. The

16 Prosecution must particularise the material facts of the alleged criminal

17 conduct of the accused that in its view define the defendant's role in the

18 persecution.

19 If it fails to do so, the indictment suffers from a material

20 defect, since such an omission precludes or at least impacts negatively on

21 the ability of the accused to prepare his defence. The Appeals Chamber

22 finds that without doubt, Josipovic's alleged involvement in the attacks

23 on the homes of Muzafer Puscul and Nazif Ahmic were material facts

24 underlying the charge of persecution. Neither of these attacks were

25 specifically pleaded as part of the persecution count. They should have

Page 955

1 been.

2 The Appeals Chamber does not, however, exclude the possibility

3 that in some instances a defective indictment can be cured if the

4 Prosecution provides the accused with timely, clear, and consistent

5 information setting out the factual basis of the charges against him. In

6 this case the Appeals Chamber accepts that Josipovic did have sufficient

7 notice of his alleged involvement in the attack on the house of Muzafer

8 Puscul. Although that attack was not specifically referred to in the

9 persecution count, it was pleaded elsewhere in the amended indictment as a

10 basis for a charge of murder. In that situation, the Appeals Chamber

11 finds the failure to specifically plead the Puscul attack as part of the

12 persecution count did not materially prejudice Josipovic in the

13 preparation of his Defence. Josipovic's participation in the attack on

14 the house of Muzafer Puscul can, therefore, serve as a legitimate

15 foundation for the persecution conviction. By contrast, the Appeals

16 Chamber does not accept that Josipovic received sufficient notice of his

17 alleged participation in the attack on the house of Nazif Ahmic, which was

18 omitted from the amended indictment all together. For that reason, the

19 Appeals Chamber accepts Josipovic's argument that the Trial Chamber was

20 not at liberty to rely upon his participation in that attack as part of

21 the persecution conviction.

22 The second ground of appeal advanced by Josipovic is that the

23 Chamber erred in accepting the evidence of Witness EE as a reliable basis

24 upon which to conclude that he participated in the attack on the house of

25 Muzafer Puscul. In particular, the Trial Chamber accepted Witness EE's

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1 evidence, notwithstanding that she was found to be clearly mistaken in her

2 identification of two other men whom she knew well among the attackers.

3 Josipovic has not argued that the Trial Chamber failed to direct

4 itself to any material aspect of the record that undermined the

5 credibility of Witness EE. Rather, it is obvious from the trial judgement

6 that the Chamber was fully aware that Witness EE was mistaken in her

7 purported identification of at least two of the six attackers at the

8 Puscul house, but that it, the Trial Chamber, nonetheless chose to accept

9 her evidence. Rather, Josipovic asks the Appeals Chamber to adopt a

10 different conclusion on Witness EE's credibility from that of the Trial

11 Chamber.

12 A Trial Chamber is at liberty to reject part of a witness'

13 testimony while accepting the remainder. In this case, the Trial

14 Chamber's decision to rely on Witness EE's identification of Josipovic as

15 a participant in the Puscul attack is supported by various other aspects

16 of the trial record. Most significantly, the Trial Chamber had before it

17 evidence that Josipovic had participated in an additional attack of a

18 similar nature occurring in the same neighbourhood during the same time

19 period. The Appeals Chamber has already determined that the fact that

20 Josipovic participated in the attack on the house of Nazif Ahmic cannot

21 serve as a legitimate basis for his persecution conviction, because that

22 incident was not pleaded in the amended indictment. However, Witness DD's

23 evidence of his participation in that attack can be considered as evidence

24 corroborating his participation in the attack on the house of Muzafer

25 Puscul.

Page 958

1 Josipovic has pursued only one challenge to the credibility of

2 Witness DD, and that based upon a statement made by Witness CA admitted as

3 additional evidence. The Appeals Chamber doesn't accept that this

4 additional evidence undermines Witness DD's credibility to the extent it

5 renders her identification of Josipovic as one of the attackers unsafe.

6 In sum, we have heard no argument on appeal that would expose as

7 unreasonable the Trial Chamber's reliance upon Witness DD for

8 corroboration purposes.

9 Another factor supporting Witness EE's credibility is Santic's own

10 subsequent admission that he was present during the Puscul attack,

11 demonstrating that EE was correct in her earlier identification of him as

12 one of the group of attackers. The Appeals Chamber finds no justification

13 for interfering with the Trial Chamber's assessment of Witness EE's

14 credibility and no ground for overturning its finding that Josipovic

15 participated in the Puscul attack.

16 The fourth ground of appeal raised by Josipovic is that the

17 additional evidence of Witness AT admitted under Rule 115 calls into

18 question the safety of his conviction. Witness AT previously testified

19 before the Kordic Trial Chamber that he was present during the attack on

20 the house of Muzafer Puscul and that Witness EE was mistaken about a third

21 person she identified amongst the attackers. Witness AT also claimed

22 categorically that Josipovic was not among that group. The Appeals

23 Chamber rejects Josipovic's argument that this new evidence fatally

24 undermines the Trial Chamber's conclusion that he was involved in the

25 attack. In admitting Witness AT's evidence, the Appeals Chamber

Page 959

1 emphasised that it was credible insofar as it concerned the preparation

2 and planning of the Ahmici attack. However, the Appeals Chamber also

3 takes note of the Kordic Trial Chamber's determination that Witness AT did

4 not tell the full truth about the extent of his own involvement in the

5 attack. The Appeals Chamber concludes that insofar as AT's evidence

6 relates to other participants in the attack, it is similarly unreliable.

7 He has failed to establish no reasonable tribunal of fact could have

8 reached the conclusion of guilt based upon the evidence before the Trial

9 Chamber together with the additional evidence admitted during appeal.

10 Thus in the case of Josipovic, we find that the Trial Chamber

11 erred in only two respects, in returning a conviction for persecution

12 based in part on his role in the attack on the house of Nazif Ahmic, not

13 pleaded in the amended indictment, and in making a factual finding that he

14 held a command position vis-a-vis other soldiers involved in the attack.

15 For these reasons, the Appeals Chamber considers that the sentence imposed

16 upon Josipovic should be reduced. The Appeals Chamber has found no merit

17 in any of the other grounds of appeal.

18 Zoran and Mirjan Kupreskic. Throughout the trial and in the trial

19 judgement, the cases of the brothers Zoran and Mirjan Kupreskic were

20 closely linked as based upon similar allegations of participation in the

21 Ahmici events. Their appeals raise many joint issues and we will address

22 them together.

23 Zoran and Mirjan Kupreskic have argued that the Trial Chamber

24 erred in convicting them of persecution based upon material facts not

25 contained in the amended indictment. In particular, the Trial Chamber

Page 960

1 accepted the evidence of Witness H that the brothers were present in the

2 house of Suhret Ahmic shortly after he and Meho Hrstanovic were killed and

3 shortly before the surviving occupants of the house were expelled and the

4 house set on fire. The amended indictment was utterly silent as to the

5 alleged participation of Zoran and Mirjan Kupreskic in these events on

6 16 April.

7 The principles of pleading detailed earlier apply equally here.

8 The attack on the house of Suhret Ahmic was a material fact in the

9 Prosecution case against Zoran and Mirjan Kupreskic. At trial, it was one

10 of only two incidents as to which the Prosecution alleged their

11 participation on that fateful day. The Trial Chamber itself rejected

12 their participation in the other attack, thus their involvement in the

13 attack on the house of Suhret Ahmic became the nucleus of the persecution

14 conviction. The omission of any reference to the Ahmic attack in the

15 amended indictment constitute a material fact. The Appeals Chamber notes

16 the Prosecution expressly chose not to further amend the indictment to

17 include that attack in the interests of expediency. The goal of

18 expedience can, however, never be allowed to override the fundamental

19 rights of the accused to a fair trial.

20 The Appeals Chamber concludes then that the trial of these two

21 defendants was rendered unfair as the result of defects in the amended

22 indictment. In particular, the Appeals Chamber is not persuaded by

23 Prosecution arguments that any defect was remedied by providing Zoran and

24 Mirjan with adequate notice of the allegations prior to trial. The

25 pre-trial brief so heavily relied upon by the Prosecution during the

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1 course of argument on appeal is extremely general and makes no reference

2 to particular attacks and murders implicating the Kupreskic brothers.

3 Even during its opening address at trial, the Prosecution made no

4 reference to the attack on the house of Suhret Ahmic. Indeed on the

5 second to last day, the Presiding Judge was still struggling to understand

6 the precise relevance of Witness H's evidence to their case. On the other

7 hand, Defence counsel consistently objected to the form of the amended

8 indictment throughout the trial proceedings. In this case, the vagueness

9 of the persecution count in the amended indictment goes to the heart of

10 the substantial safeguards that an indictment is intended to furnish to an

11 accused, namely to inform him of the case he must meet.

12 The Appeals Chamber, having upheld the objections of Zoran and

13 Mirjan Kupreskic based upon the vagueness of the amended indictment, then

14 confronted the question whether the appropriate remedy would be to remand

15 the matter for retrial. The Appeals Chamber might understandably have

16 been reluctant to allow a defect in the form of the indictment to

17 determine finally the outcome of the case in which there was strong

18 evidence pointing toward the guilt of the accused. However, Zoran and

19 Mirjan Kupreskic have raised a number of objections to the factual

20 findings of the Trial Chamber which fatally undermine the evidentiary

21 basis for their convictions. We turn now to these objections.

22 Foremost among their concerns is Witness H, who was 13 years old

23 at the time of the attack and a few years older at the time she gave

24 evidence before the Trial Chamber, was not a sufficiently reliable witness

25 from which to conclude that they had participated in the attack on the

Page 963

1 house of Suhret Ahmic. The Trial Chamber's decision to accept the

2 evidence of Witness H was very heavily influenced by her confident

3 demeanour in court and her personal certainty that she was correct in her

4 identification of the Kupreskic brothers that morning. There was no other

5 evidence deemed credible by the Trial Chamber to directly corroborate

6 Witness H's observations.

7 Witness H is a young woman, who in the wake of the Ahmici

8 massacre, has assumed a significant degree of responsibility for her

9 family, and her undeniable courage was reflected in her testimony. That

10 such a witness should make an enormous and positive impression upon the Trial

11 Chamber is not surprising.

12 However, after a careful review, the Appeals Chamber must conclude

13 that the Trial Chamber's assessment of Witness H's evidence was critically

14 flawed. This was a witness who purported to identify the defendants under

15 extremely difficult circumstances. The attackers descended upon her house

16 in the early morning hours while she and her family were sleeping. Her

17 father was killed as she and other occupants hid in the basement. The

18 attackers had masked their faces with paint in order to camouflage

19 themselves. In such circumstances, it was clearly incumbent upon the

20 Trial Chamber to proceed with extreme caution prior to accepting

21 Witness H's identification evidence as the basis upon which to conclude

22 that the defendants were involved in the attack on the house. Although

23 Witness H was a confident and impressive in-court witness, a Trial Chamber

24 must take into account the fact that when it comes to identification

25 evidence, the degree of certainty expressed by a witness is not

Page 964

1 necessarily an indicator of its reliability. Rather, a Trial Chamber must

2 thoroughly and carefully consider the evidentiary record as a whole prior

3 to reaching a conclusion about the credibility of the witness. Such

4 caution is not sufficiently reflected in the treatment accorded to

5 Witness H's evidence.

6 Most significantly, the Trial Chamber failed to direct itself to

7 another material piece of evidence, namely the statements made by

8 Witness SA, a close relative of Witness H, also present during the

9 attack. Throughout the trial, Zoran and Mirjan Kupreskic were insistent

10 that Witness SA be called to testify. She was, they said, the only other

11 eyewitness who could shed light upon events in the Ahmici house, and she

12 had made prior statements that cast some doubt upon important aspects of

13 Witness H's in-court testimony. At first it appeared that the Prosecution

14 would itself call Witness SA as part of its own case. Later when the

15 Prosecution abandoned that, the Trial Chamber, acknowledging the reality

16 that the Kupreskic brothers would have little chance of securing her

17 attendance as a Defence witness, named SA as a court witness. However,

18 the Trial Chamber subsequently retracted that decision upon being informed

19 by a staff member of the Victim's and Witnesses Section that SA could not

20 attend for health reasons. In so doing, the Trial Chamber fell into

21 error. Although the Rules of this Tribunal provide a Trial Chamber with

22 wide discretion in deciding who it will name as a court witness, having

23 decided to call SA, the Trial Chamber should not have retracted the

24 decision to the detriment of the Defence in the absence of certification

25 from a qualified health professional demonstrating that she was indeed

Page 965

1 medically unfit to attend.

2 In an attempt to compensate for SA's non-appearance before the

3 Tribunal, the Trial Chamber agreed to admit six of her prior written

4 statements. The trial judgement reveals, however, that it subsequently

5 reviewed these six statements only to see if they provided support for

6 Witness H. The Trial Chamber failed to take the critical step of

7 considering whether the statements of SA cast doubt upon the

8 identification evidence of H. The Appeals Chamber finds that they do.

9 Among other things, these statements raise a distinct possibility that

10 Witness H's identification of Zoran and, particularly, Mirjan Kupreskic as

11 participants in the attack on her house gradually developed in the months

12 following the April 1993 atrocity. The Trial Record reveals that

13 immediately following the attack, there was extensive speculation among

14 the Bosnian Muslim members of Ahmici, in particular Witness H's family,

15 about the involvement of their Croat neighbours in the attack. The Trial

16 Chamber should have evaluated the possibility that Witness H, a child at

17 the time, was influenced in her belated identification by this speculation

18 within the family circle.

19 The Trial Chamber also failed to direct itself to material

20 discrepancies between Witness H's in-court testimony and prior statement

21 that she herself made which, among other things, cast some doubt upon her

22 claim of inadequate opportunity to identify the Kupreskic brothers during

23 the early morning attack. Additionally, Witness SA's statements provide

24 no support for Witness H's claim that she had such an opportunity. The

25 Trial Chamber omitted to make any specific factual findings about these

Page 966

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1 and other crucial matters affecting H's credibility such as her outright

2 denial that she had made a prior somewhat inconsistent statement to an

3 investigating judge in Zenica and her mistaken claim that she recognised

4 Zoran Kupreskic as an employee of a shop she frequented. The Trial

5 Chamber also did not account for the distinct likelihood, stemming from

6 Witness H's description of the brothers' physical appearance that day,

7 that she may have mistaken them for two members of the Jokers unit of

8 which they were not members. We did not find that sufficient attention

9 was paid to these crucial identification questions by the Trial Chamber to

10 permit us to conclude that its obligation to provide a reasoned opinion

11 had been fulfilled. The Appeals Chamber has also had the benefit of the

12 additional evidence of AT which has illuminated certain matters regarding

13 the organisation of the Ahmici attack and served to highlight some of the

14 difficulties associated with the Trial Chamber's treatment of Witness H's

15 evidence.

16 The task before this Trial Chamber in this case was difficult. It

17 was confronting problems triggered by a trial record that contained

18 important omissions such as the live testimony of SA, a key eyewitness. A

19 Trial Chamber must proceed with great caution before convicting an accused

20 person based upon a trial record that contains patent omissions. The

21 difficulty of obtaining all the relevant evidence, unfortunately inherent

22 in many cases that come before the Tribunal, cannot and does not reduce

23 the Prosecution's burden of proving the guilt of an accused beyond a

24 reasonable doubt.

25 To recapitulate, we recall that the Kupreskic brothers were

Page 968

1 prejudiced as a result of first, the Prosecution's failure to allege the

2 attack on Witness H's house in the indictment, and second, the late

3 disclosure of her earlier statements. The Defence had only a few weeks to

4 prepare for the cross-examination of this witness, who turned out to be a

5 lynchpin in the case against them.

6 If Witness H's testimony is discounted, the cases against Zoran

7 and Mirjan Kupreskic cannot stand. The Trial Chamber drew some support

8 for their participation in the Ahmici attack from the evidence of

9 Witness JJ, who said that on that day, under threat by the Jokers, Zoran

10 Kupreskic had said that he shot into the air in the pretense of shooting

11 at civilians. However, without witness H's evidence, Witness JJ's

12 observations are an insufficient basis upon which to attribute criminal

13 responsibility.

14 Finally, the Appeals Chamber can find no basis for the Trial

15 Chamber's finding that the two brothers were involved in a persecutory

16 campaign stemming back to October 1992. The Trial Chamber provided no

17 description of what illegal conduct it attributed to the defendants during

18 the period from October 1992 to 15th April 1993, when they were alleged to

19 have been involved in the preparation of the 16th April attack. Hence

20 this finding must be rejected due to the absence of any evidentiary basis

21 to support it. In totality, the Appeals Chamber concludes the convictions

22 of Zoran and Mirjan Kupreskic have occasioned a miscarriage of justice and

23 must be reversed.

24 Vlatko Kupreskic. Among all five defendants before the Appeals

25 Chamber, the evidence to support the conviction of Vlatko Kupreskic was

Page 969

1 the least compelling. The Prosecution did not allege he was directly

2 involved in any specific attacks on Bosnian Muslim homes on the morning of

3 16th April. Rather, his convictions were based on a web of circumstantial

4 evidence grounded on the Trial Chamber's findings he was a police

5 operations officer. This led the Trial Chamber to conclude that he had

6 aided and abetted the preparation of the Ahmici attack.

7 On appeal, Vlatko Kupreskic has argued the Trial Chamber's factual

8 findings about his involvement in the attack had no basis in the evidence

9 to begin with, and second, additional evidence admitted on appeal served

10 to underscore the extreme weakness of the case against him.

11 We accept that on the basis of the trial record, it was reasonable

12 for the Trial Chamber to conclude that Vlatko Kupreskic was at one time a

13 police operations officer. The trial judgement suggests that finding,

14 however, was an important factor in its decision to convict him of

15 persecution. From his status as a police officer, the Trial Chamber

16 inferred that conduct innocent in its own right was directed toward

17 assisting, encouraging, or lending moral support to the crime of

18 persecution. However, the totality of the evidence, the trial record, and

19 the additional evidence submitted overwhelmingly suggest that any police

20 duties undertaken by Vlatko Kupreskic ceased in February 1993. There is

21 no satisfactory evidence that his employment with the police continued

22 until the time of the April attack.

23 As to the Trial Chamber's finding that Vlatko Kupreskic assisted

24 the attack by providing his house as a base for attacking troops, we

25 accept that this too was reasonable on the basis of the original trial

Page 970

1 record. The evidence of troop movement in and around the defendant's

2 house came from four separate sources. However, the Appeals Chamber

3 admitted additional evidence on this point. The evidence of Witness ADA,

4 who said he was sitting on a hill outside Vlatko Kupreskic's store

5 throughout the afternoon and early evening of 15 April and saw neither

6 Kupreskic nor any troop activity was not in and of itself compelling.

7 However, the evidence of Witness AT that the plan to attack Ahmici was not

8 announced until the afternoon of the 15th April and that troops were not

9 deployed to the bungalow until late into the night between 15th and

10 16 April makes it highly unlikely another set of troops would have been

11 dispatched to Vlatko Kupreskic's house much earlier in the day to prepare

12 for the attack. Consequently, the Appeals Chamber must conclude there is

13 serious doubt as to whether there were troops at Vlatko Kupreskic's house

14 in the early evening of the 15th preparing for the attack.

15 The remaining evidence against Vlatko Kupreskic provides an

16 insufficient basis upon which to conclude that he aided and abetted

17 persecution. At trial, a witness gave evidence that in October 1992, he

18 saw Vlatko Kupreskic unloading weapons from his car, taking them into his

19 house. There was no evidence of what kind or how many the weapons were,

20 nor that they were ever used during or had any connection with the 16th of

21 April attack which occurred six months later. In the Appeals Chamber's

22 view, it was unreasonable for the Trial Chamber to infer, on the basis of

23 this scant evidence, Vlatko Kupreskic had engaged in acts specifically

24 directed to assist, encourage, or lend moral support to persecution acts

25 against the Muslim neighbours six months later.

Page 971

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Page 972

1 The Trial Chamber also found Vlatko was in the vicinity shortly

2 after the attack on Suhret Ahmic's house and thereby concluded he was

3 ready to lend assistance in whatever way he could to the attacking

4 forces. This finding was based on the evidence of Witness H, corroborated

5 by Witness KL, who testified to seeing Vlatko Kupreskic after the attack

6 on the Ahmic house, in front of the garage. In the Appeals Chamber's

7 view, this evidence, even if believed, is an insufficient basis for the

8 Trial Chamber to conclude Vlatko was assisting in the attack. He lived in

9 the village. In the context of such a small town as Ahmici, it is risky

10 to draw inferences of guilt simply from the fact that a person was seen in

11 the area of an attack especially close to his own home. It constitutes

12 only the merest of circumstantial evidence that he was a participant in

13 the attack and is an insufficient basis upon which to found his conviction

14 for persecution.

15 We conclude, on the whole, that the conviction of Vlatko Kupreskic

16 has occasioned a miscarriage of justice and must be reversed.

17 We turn finally and briefly to the Prosecution's appeal.

18 The least contentious of all issues before the Appeals Chamber was

19 the Prosecution's claim that the Trial Chamber erred in failing to enter

20 convictions for Josipovic and Santic under Article 3 based on the same

21 conduct as their convictions under Article 5. In the intervening period

22 between the rendering of trial judgement and the hearing of the appeal,

23 the issues of cumulative charging and convictions have been clarified

24 considerably in the Tribunalís jurisprudence. Following the appeal

25 judgements in Celebici and Jelisic, it is now beyond dispute that

Page 973

1 cumulative charging is generally allowed and that cumulative convictions

2 under Article 3 and Article 5 are permitted. For that reason, we uphold

3 the Prosecution's appeal and find the Trial Chamber erred in failing to

4 convict Josipovic and Santic of murder and cruel treatment as violations

5 of the laws or customs of war under Article 3. However, given that the

6 Prosecution specifically stated it was only seeking a reversal of the

7 acquittals and not any increase in the terms of imprisonment, these

8 additional convictions have not been considered as laying the basis for

9 any change in sentencing.

10 Now I will read the formal orders made by the Appeals Chamber in

11 the disposition section of the judgement.

12 Zoran and Mirjan Kupreskic, will you please stand.

13 The Appeals Chamber unanimously allows your ground of appeal

14 objecting to the Trial Chamber's decision to return convictions under

15 count 1 of the amended indictment on the basis of material facts not

16 pleaded therein, namely participation in the attack on the house of Suhret

17 Ahmic; allows your ground of appeal objecting to the Trial Chamber's

18 decision to rely upon the identification evidence of Witness H to conclude

19 that you participated in the attack on the house of Suhret Ahmic on

20 16 April, thereby committing an act of persecution under count 1; in light

21 of additional evidence admitted on appeal, allows your ground of appeal

22 objecting to the Trial Chamber's finding that you provided local knowledge

23 and the use of your houses as bases for the forces attacking Ahmici.

24 Zoran Kupreskic, we allow your ground of appeal objecting to the

25 Trial Chamber's finding that you bear criminal responsibility for

Page 974

1 persecution stemming back to October 1992, under count 1 of the amended

2 indictment, and we apply this finding also to Mirjan Kupreskic.

3 We dismiss or decline to consider all other grounds of appeal.

4 Accordingly, the Appeals Chamber reverses your convictions for

5 persecution under count 1 and finds each of you not guilty on this count.

6 You may both sit down now. You may both sit down.

7 Vlatko Kupreskic, will you please stand.

8 The Appeal Chamber unanimously, in light of additional evidence

9 submitted on appeal, allows your ground of appeal objecting to the Trial

10 Chamber's finding that you were an operations officer at the time of the

11 16 April attack; allows your ground of appeal objecting to the Trial

12 Chamber's finding that you assisted with the 16 April attack by unloading

13 weapons from your car in 1992 October.

14 Allows your ground of appeal objecting to the Trial Chamber's

15 inference that by virtue of your presence outside Hotel Vitez on 15 April,

16 you aided and abetted persecution; in light of additional evidence

17 admitted on appeal, allows your ground of appeal objecting to the Trial

18 Chamber's finding that there were troops at your house early evening 15

19 April and that you thereby aided and abetted persecution.

20 Allows your ground of appeal objecting to the Trial Chamber's

21 inference that, on the basis of witness' testimony placing you outside the

22 house of Sukret Ahmet after it was attacked, you were ready to lend

23 assistance to the attacking forces and you thereby aided and abetted

24 persecution.

25 Accordingly, the Appeals Chamber reverses your conviction for

Page 975

1 persecution under count 1 of the amended indictment and finds you not

2 guilty on that count. You may sit down now.

3 Drago Josipovic, will you please stand. The Appeals Chamber

4 unanimously allows your ground of appeal objecting to the Trial Chamber's

5 decision to return convictions under count 1 on the basis of material

6 facts not pleaded, namely, participation in the attack on the house of

7 Nazif Ahmic, but finds no remedy except with respect to your sentence.

8 Allows your ground of appeal objecting to the Trial Chamber's

9 inference you were in a position of command during the Ahmici attack;

10 dismisses all other grounds raised by you against your conviction.

11 Accordingly, the Appeals Chamber affirms the convictions entered

12 by the Trial Chamber against you on count 1, count 16, and count 18. But

13 as to your appeal against your sentence, the Appeals Chamber unanimously,

14 having previously found that the Trial Chamber erred in concluding that

15 you played a commanding role during the attack on the house of Nazif

16 Ahmic, finds that the Trial Chamber erred in relying upon that factor in

17 aggravation of your sentence; having previously found the Trial Chamber

18 erred in considering your participation in the attack on the house of

19 Nazif Ahmic as part of your persecution, finds that the bases for your

20 conviction are now reduced; dismisses all other the grounds raised by you

21 against your sentence.

22 Accordingly, the Appeals Chamber revises your total sentence from

23 15 years of imprisonment to 12 years. You may sit down.

24 Mr. Santic, will you please stand. The Appeals Chamber

25 unanimously allows your ground of appeal objecting to the Trial Chamber's

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Page 977

1 implicit finding that you assisted in the strategic planning of the

2 attack; dismisses all other grounds raised by you.

3 Accordingly, the Appeals Chamber affirms your convictions under

4 counts 1, 16, and 18. As to your sentence, the Appeals Chamber

5 unanimously, having previously found that the Trial Chamber erred in

6 finding that you assisted in the strategic planning, allows your ground of

7 appeal objecting to the Trial Chamber's consideration of this factor in

8 aggravation of your sentence; allows your ground of appeal based on the

9 argument that your sentence should be reduced in light of your acceptance

10 of guilt and your substantial cooperation with the Prosecution; dismisses

11 all other grounds of appeal raised by you against your sentence.

12 Accordingly, the Appeals Chamber revises your total sentence from

13 25 years of imprisonment to 18 years. You may now sit down.

14 The Appeals Chamber unanimously allows the Prosecution's appeal

15 against the Trial Chamber's ruling that counts 17 and 19 were improperly

16 charged cumulatively with the counts containing Article 5 charges for

17 murder and for inhumane acts; allows the Prosecution's appeal against the

18 Trial Chamber's acquittal of Josipovic and Santic under counts 17 and 19.

19 So accordingly, we reverse the Trial Chamber's acquittal of

20 Josipovic and Santic under counts 17 and 19, find them guilty under these

21 counts.

22 The Appeals Chamber, finally, dismisses Drago Josipovic's ground

23 of appeal by which he complains he was impermissibly charged and convicted

24 cumulatively of murder and other inhumane acts as crimes against humanity

25 because the two charges were, in fact, based on different facts; dismisses

Page 978

1 as abandoned during argument and the final brief on appeal his original

2 ground of appeal by which he complained he was impermissibly charged with

3 both murder and persecution as a crime against humanity based on the

4 underlying conduct.

5 Pursuant to Rule 101(C), an accused is entitled to credit for time

6 spent in custody "pending surrender to the Tribunal or pending trial or

7 appeal." Accordingly, both Drago Josipovic and Vladimir Santic are

8 entitled to credit for the time they have spent in custody since their

9 surrender on 6 October 1997.

10 In accordance with Rules 103 and 107, the Appeals Chamber orders

11 Drago Josipovic and Vladimir Santic to remain in the custody of the

12 Tribunal pending the finalisation of arrangements for their transfers to

13 the States, where their respective sentences will be served.

14 In accordance with Rule 99(A) of the Rules, the Appeals Chamber

15 orders that Zoran, Mirjan, and Vlatko Kupreskic be released immediately

16 from the United Nations Detention Unit. The Appeals Chamber reasons for

17 these orders are now published, and with that we now adjourn this

18 proceedings.

19 THE APPELLANT ZORAN KUPRESKIC: [Interpretation] Your Honours, may

20 I say something?

21 JUDGE WALD: No, I'm sorry. We have concluded our proceedings.

22 We are adjourned.

23 --- Whereupon the Judgement adjourned at 2.48 p.m.

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