1 Tuesday, 17 July 2001

2 [Kvocka Defence Closing Statement]

3 [Open session]

4 --- Upon commencing at 9.25 a.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] Please be seated.

7 Good morning ladies and gentlemen. Good morning to the technical

8 booth and the interpreters, the Registry staff, the Prosecution and

9 Defence counsel. As you can see, Judge Fouad Riad is absent. He has a

10 medical appointment but he will be available as of 11.00. So we have

11 decided, in keeping with Rule 15 bis, to continue the proceedings and

12 Judge Riad will be returning after the break.

13 Having said that, I give the floor without further ado to

14 Mr. Krstan Simic for his closing argument. Mr. Krstan Simic, you have the

15 floor.

16 MR. K. SIMIC: [Interpretation] Good morning, Your Honours.

17 Your Honours, in paragraph 3 of the final brief, we indicated the

18 possibility that people in certain situations and under certain events can

19 experience different events and interpret them differently, and these

20 possibilities are -- we can expect, realistically, with individuals of

21 lower intellectual levels, especially when they find themselves in a

22 situation where professionalism is required. There are different motives,

23 different underlying circumstances, and it is quite certain that the

24 conditions in an investigation centre or camp, depending on the

25 terminology which we adopt, can lead precisely to that kind of thing.

1 Confirmation of this I heard yesterday from my colleague, learned

2 colleague, Ms. Susan Somers. In a portion of her statement, she

3 recognised that with a certain number of witnesses, there could have

4 been -- they could have given the impression that Mr. Kvocka, for a

5 certain period of time in the Investigating Centre of Omarska, was in the

6 status of commander there. However, at the same time, Ms. Somers, in her

7 introduction, saw many events differently and interpreted them differently

8 and, therefore, this makes it incumbent upon me in our closing statement,

9 which we believed would be brief, for us to react to her comments and

10 respond to them and certain interpretations of some events which were

11 based and founded on the same evidence and the same facts.

12 Yesterday, my learned colleague spoke about the establishment of

13 the system of security in the Omarska Investigation Centre and on the

14 occasion, and we agree there, she stressed that the system of security,

15 that is to say, the guard posts and everything else was established before

16 the people from Omarska came to the Omarska business complex, commercial

17 complex. However, in analysing evidence and proof linked to the first

18 arrival of the members of the police from the Omarska Police Department,

19 the situation occurred that I described a moment ago. It was interpreted

20 differently. And it is in this direction that Mr. Kvocka definitively

21 testified that as a professional policeman at his work post as leader of

22 the patrol sector on the 28th -- between the 28th and 29th of May 1992,

23 according to his customary schedule which was drawn up by the komandir or

24 leader of the police station, and not the police station department,

25 performed the function of duty officer.

1 In the morning hours of the 29th of May 1992, in the customary

2 fashion, according to the system that is well-established in all police

3 forces throughout the world and also in the present police force of the

4 Prijedor municipality, a radio link existed. As the duty officer, he

5 received an order from the komandir of the police station of Prijedor, the

6 only individual who had the -- a command position in the police station,

7 and was together with the chief of police in the Prijedor public security

8 station, was told to come to the Omarska business complex. That was an

9 order by a superior to an officer policeman on duty.

10 Of course, Mr. Kvocka executed the order. He went there, and this

11 was not brought into question by any of the testimonies. And there he

12 received the first information that on that location, there would be

13 formed or, rather, that it was already functioning, an ad hoc

14 investigation centre. And on that occasion, Mr. Kvocka was told this by

15 his superiors. He was told that the centre would be in existence for

16 several days, until the people who were being criminally processed were

17 seen to be guilty or not. And that was the first notions and information

18 that Mr. Kvocka had had about the investigating centre which had been

19 functioning for several hours. So the Investigation Centre of Omarska had

20 been functioning between 24 and 28 hours before the members of the Omarska

21 Police Department received any information along those lines.

22 Also, this fact which was presented by Mr. Kvocka, that he was

23 informed that it was a provisional investigations centre, a temporary one,

24 that people would be there until they were investigated and then released,

25 this is borne out by Witness AK who also was very decisive and resolute in

1 stating that when he was arrested, he was told that this would only last a

2 few days; that people would be interrogated and then sent home. And other

3 witnesses spoke about that as well.

4 Witness AK and Witness P coincide in their testimonies and state,

5 both of them, that that indeed was what the situation was like for the

6 first ten days. People were interrogated and sent home en masse. They

7 were released en masse after they had been questioned. Witness AK,

8 moreover, says that people went voluntarily to be questioned, because if

9 they were questioned earlier on, they would be released home earlier on

10 and would be relieved of their dilemma as to whether they would be

11 released or kept.

12 I wanted to indicate this in order to show that the first

13 knowledge that Mr. Kvocka had on the existence of the investigations

14 centre was as a duty officer, a policeman on duty that night. After his

15 contacts with the komandir of the police station and the chief of police,

16 he received an order that as a duty officer he should return to the police

17 station department, and according to customary rules and regulations and

18 customary procedure that exists in every police force throughout the

19 world, that he should contact and form -- engage a number of people. And

20 there was no need to inform the komandir of the police department for this

21 action. If the komandir would have to be woken up for everything that

22 occurred, then I don't know where this police system would lead to. The

23 police has the right to proceed in this way, and Mr. Kvocka, as a

24 professional policeman himself - as Mr. Vujic said, the first educated and

25 trained policeman and not special policeman, as my learned colleague,

1 Ms. Somers, referred to him, he was the first educated policeman - and as

2 we heard, Mr. Kvocka was the first policeman who came to work in Omarska,

3 having graduated from a secondary police academy, school.

4 Now, was this a specific feature? Was the secondary school

5 anything specific? I don't know. Ms. Somers insisted upon that point.

6 But Mr. Kvocka alerted the policemen in the usual, customary fashion. He

7 followed the orders of his superior - and in the police force,

8 subordinates must always act upon the orders of their superiors - in going

9 about his regular police officer duties. Because the rules of procedure

10 on the conduct of the regular police force provide for extraordinary

11 security, and that is strictly regulated by the rules and regulations.

12 So the information that Mr. Kvocka received and the order that he

13 was given was a customary form of order and in no way differed from the

14 standard police task which is strictly provided for by the rules and

15 regulations of the police force.

16 Mr. Meakic appeared on the scene because he was informed in the

17 usual way, in the customary way, of the activities that took place during

18 the night, because always when the komandir appears, it is quite

19 understandable that the duty officer informs him of his events that took

20 place during the time he was on duty and what happened while he was on

21 duty.

22 My learned colleague also says that it seems that Mr. Meakic

23 learnt for the first time then and there about the investigations centre,

24 and this is something that Mr. Kvocka testified to. Mr. Meakic found

25 himself taken aback too, because as the komandir of the police department,

1 he thought that this was a big task, to provide security with only a

2 police station department.

3 So on that day, as Mr. Kvocka testified, on several occasions he

4 went to Prijedor during the day to ask the people in authority for more

5 information and to try to prevent him being the sole responsible person

6 for the task in hand, because it was such a vast task and he lacked the

7 necessary manpower. According to the testimony of Mr. Kvocka, which was

8 not challenged in any way, he said, "I could do nothing. We will have to

9 provide security as best we can because that is the task that we have been

10 given." And he repeated the same thing that Witness B had said, and

11 Witness AK, that this would last for about ten days and that he would do

12 the best he could for those ten or 15 days, until all the people had been

13 questioned and interrogated.

14 Mr. Radic testified to the same effect, along with a number of

15 other witnesses. Therefore, I wish to draw Your Honours' attention to the

16 fact -- to this fact which is related to an issue which will be brought up

17 later on, that is, the issue of the theory of common purpose. We agree

18 that the first information, the first knowledge reached the komandir of

19 the Police Station Department in Omarska in the early morning hours on the

20 29th of May, 24 to 28 hours after the investigation centre had already

21 started its operation, and after detainees had already been put up there

22 and the security system established together with the appropriate

23 communication system.

24 A question arises here. How can we speak about a common purpose

25 theory and a common plan theory if a komandir of a police station

1 department, through the duty service, learns about such a major event

2 which my learned colleague has described as a part of a common plan whose

3 objective was persecution, murder, and ill treatment of a number of people

4 in which Mr. Meakic, as komandir of the police station in Omarska together

5 Mr. Kvocka and others, intended to participate and help with the

6 organisation and the preparation of this plan.

7 Furthermore, Your Honours, I must emphasise that my learned

8 colleague, an excellent lawyer by all means, insisted on using the term

9 "komandant" yesterday, "commander." The Prosecution has all the

10 necessary documents related to the organisation of the police force. They

11 have the structural organigramme, and appropriate documents have been

12 tendered into evidence with respect to the duties of the leader of the

13 patrol sector. I am afraid that in this way, the situation regarding the

14 status of these people can be blurred. The issue can be clouded.

15 Your Honours, the police force in the former Yugoslavia, and I

16 believe in other police forces in the world as well does not know, does

17 not recognise the term "commander" or "komandant." It's a term which is

18 used by the military, by various armies throughout the world, that is the

19 term of "komandant."

20 You have heard the testimony of Mr. Bujic, an experienced police

21 officer, on whose testimony my learned colleague, Ms. Somers, has relied a

22 number of times and justly so when he spoke about various professions

23 within the police force. The komandir of police station and his deputy,

24 together with several assistants to the commander of the police station,

25 and I have to stress here that the assistants have specific issues to deal

1 with and their number, as was indicated by Mr. Bujic, depends on the

2 strength of the police station, that is, on how large the area in question

3 is.

4 Finally, there is also the post of the komandir of the police

5 station department. And as we have seen, a police station department is a

6 portion, a part of a police station which is located in an area which also

7 falls under the area of jurisdiction of that particular police station. I

8 don't think it is disputed that the responsibilities of these individuals

9 can relate only to the members of the police force, the police force which

10 is under their command.

11 Your Honours, during the trial, we have heard a number of

12 witnesses. A large amount of evidence was called regarding the issue of

13 the status of the police force in Omarska, and I am using the term, the

14 "status of the police force in Omarska" consciously. However, my learned

15 colleague yesterday, in her closing argument, put forward a case according

16 to which there was no Police Station Department in Omarska, but that at a

17 certain point in time, it actually became a police station, a police

18 station proper.

19 The purpose of this argument is not difficult to discern. I

20 believe that the Chamber, or any other participants in these proceedings,

21 are quite clear as to the existence of a komandir of a police station

22 department only as a komandir. The department only has one such post, a

23 komandir. A police station department does not have assistants, deputies,

24 or shift leaders. A number of witnesses have been heard to this effect.

25 Mr. Milutin Bujic, who was actually the komandir of this particular police

1 station department, and who worked -- who was replaced by Mr. Meakic

2 during the month of April in the police station department.

3 In addition to Mr. Bujic, this fact was confirmed, was

4 corroborated by Bogdan Delic, chief of the public security station in

5 Prijedor after Simo Drljaca; Dragan Popovic, who was a member of the

6 reserve police force within the Police Station Department in Omarska;

7 Brane Bolta, a police officer; Lazar Basrak; Zdravko Samardzija, lawyer,

8 and chief of the State Security Service. Their testimonies, which have

9 not been challenged in any way, and I must point out with a certain amount

10 of satisfaction that my learned colleague, Ms. Somers, did not challenge,

11 in any way, their testimonies during her closing arguments, that is the

12 witnesses of Mr. Kvocka. Their testimonies have been corroborated by

13 appropriate documents as well.

14 Your Honours, on the 17th of June 1992, that is, at the time of

15 the existence of the Omarska centre, the chief of centre for public

16 security services issued an order whereby Mr. Kvocka was assigned to a

17 newly-established Ministry of the Interior, specifically to the post of a

18 leader of the patrol sector. Let me emphasise the date once again, the

19 17th of June, and the appropriate order was brought by the head of the

20 Security Services Centre. That is the highest police authority in the

21 entire region. I am referring to document D1/9.

22 In that document, the chief of the CSB says that Mr. Kvocka will

23 be assigned to the post of the leader of the patrol sector and that he

24 will be posted within the Banja Luka Public Security Station as public

25 Security Station Prijedor -- police station in Prijedor and the Police

1 Station Department in Omarska. The head of the Public Security Services

2 Centre in Banja Luka issued a specific order whereby he assigned police

3 officer Mr. Miroslav Kvocka to a specific duty and the order makes mention

4 of specific post that he was to take by virtue of this order.

5 Likewise, we had an opportunity to see a document which was

6 tendered by the Prosecution and which was marked 3/186. Your Honours, the

7 said document constitutes a list of police officers and their schedule for

8 the month of July with the date indicated the 15th of July, and the

9 document makes mention of the Police Station Department in Omarska in its

10 heading.

11 Furthermore, Mr. Drljaca, on the 29th of May 1992, submitted a

12 report to the Security Services Centre in which he informs that in the

13 area of Prijedor within the composition of the police station, three

14 police station departments are operational, Omarska, Kozarac, and

15 Prijedor, I'm sorry, and Ljubija.

16 Furthermore, he states that in these police station departments,

17 the posts of the komandir has been filled with the exception of Kozarac

18 where, unfortunately, in an unfortunate circumstances, on the 25th or 26th

19 of May 1992, the then komandir perished in tragic circumstances. We have

20 heard his name a number of times in this case, Osme Didovic.

21 It is true my learned colleague from the Prosecution challenged

22 this evidence with a document, the famous order issued by Mr. Simo Drljaca

23 on the 31st of May, 1992, in which he states in paragraph 6 that the

24 security of the collection centre, which was the term used by Mr. Drljaca,

25 the security system, the security of the collection centre would be

1 provided by the Police Station Department Omarska.

2 I must point out that Mr. Drljaca is not a career police officer.

3 He was appointed to that position for political reasons after the takeover

4 on the 30th of April, 1992. Furthermore, he is an individual who was not

5 familiar with the organisational structure of the police. Bearing in mind

6 the evidence indicated so far, this can be considered as a work product of

7 a layperson.

8 Had you visited Omarska, Kozarac, Ljubija before these events,

9 none of the citizens would have told you that it was a Police Station

10 Department in Omarska. For everybody down there, the commonly used term

11 was "the police station." It was a widespread term that was used by the

12 local population in general, by laypersons.

13 You have heard the same term being used by a number of witnesses,

14 and some of them who were guards also used the term "guard." But the

15 police force does not know, is not familiar with the term "guard" as

16 such. But most of them had done their military service and they have

17 simply applied the same term to the civilian service. Instead of using

18 the correct term, "a member of the security personnel," they would use the

19 term "guard," which was used not only by witnesses but also by police

20 officers themselves.

21 In conclusion, Your Honours, it is our submission that enough

22 evidence has been led before this Chamber which doubtlessly confirms that,

23 during the relevant period of time, in Omarska there was a Police Station

24 Department Omarska.

25 Along these lines, we wished to stress, and we have already done

1 so with respect to the information as to the establishment of the

2 investigation centre, that the Police Station Department of Omarska had

3 been given the task of providing security. Extraordinary security tasks

4 are strictly regulated by Articles 142 to 146 inclusive of the Rules of

5 Service, rules and regulations for public security. The Defence dealt in

6 detail with those provisions in its written closing arguments, in

7 paragraphs 171 to 177 of the closing brief, final brief. However, the

8 Prosecution, on several occasions, referred to document 3/249, and it is

9 precisely in that document that one particular individual signs himself as

10 the komandir of security, because the rules provide for that.

11 But we should like to stress that a komandir of security did not

12 have any command responsibility within the chain of command. Why?

13 Precisely because the rules of procedure for the establishment of

14 extraordinary security, security in extraordinary circumstances, clearly

15 provide for and envisage who is authorised to provide extraordinary

16 security. It was not up to the komandir of the police station department,

17 and Mr. Zeljko Meakic, in no situation was he able to determine -- was he

18 able to provide and decide to provide extraordinary security.

19 In the order of the 31st of May, 1992, an order of this kind could

20 only be issued by Simo Drljaca, as we have seen. The rules also provide

21 for a security plan, the way in which security is to function and all the

22 details related to security. The security komandir, according to the

23 signature found on document 3/249, is only an individual who puts this

24 security plan into practice.

25 You can see that there was no dispute when the members of the

1 Omarska Police Station Department came to Omarska. All the witnesses

2 testified to that. A plan was already in existence and a communication

3 system and the guard posts and the shifts, the way in which food was to be

4 supplied, the interrogations conducted and the reporting done.

5 For things to be clearer to all of us, we mentioned the Law on

6 Internal Affairs, the law governing Internal Affairs, which was adopted by

7 the Assembly of the Serb people and which was applied and in force. That

8 is the law which was published in the Official Gazette, 4/92. The expert

9 witness Mr. Lakcevic expounded on that law and referred to Article 37,

10 which is decisive in proclaiming the following, and I quote: "The

11 komandir of the police station is directly in charge of a police station."

12 And in the text to follow, "The komandir will be referred to as the

13 komandir of the police station."

14 I wish to underline here that the Police Station Department in

15 Omarska was a component part of the Police Station of Prijedor, and the

16 only superior officer in that chain of command was the komandir of the

17 police station.

18 Your Honours, we have heard testimony from many witnesses, we have

19 seen many documents which clearly drew the distinction between the camp

20 organisation and the internal security of the camp itself or, rather, the

21 investigation centre as a part of that camp. The Defence does not contest

22 the fact that the security and only a segment, a portion of that security

23 to which Mr. Kvocka belonged was a part of the organisation of the

24 investigations centre or camp of Omarska; we are not challenging that.

25 But we cannot equate the Police Station Department of Omarska with the

1 camp organisation. I have the feeling that my learned colleague attempted

2 to do precisely that yesterday.

3 From her closing argument, when she speaks about the commander,

4 when she uses the word "commander," I don't know, and I'm sure the Judges

5 don't know either, whether she is talking about the commander of the

6 Prijedor Police Station, as my learned friend claimed, or commander of the

7 Police Station Department, as we say, or whether she is referring to the

8 camp commander. So I think that the evidence was clear on that point

9 throughout.

10 We have heard witnesses testify, and they have come from all the

11 different sections of camp organisation. We heard testimony from

12 Mr. Jesic, who was the coordinator of the group for state security, for

13 instance. We also heard Mr. Ljuban Andzic's testimony and testimony from

14 another witness, Dr. Slobodan Gajic, and they stressed that the system of

15 health care in the Omarska Investigation Centre was an independent and

16 autonomous one.

17 Your Honours, we have also heard the testimony of witness Pero

18 Rendic, the komandir of the Quartermaster Platoon in charge of food

19 preparation. He, too, clearly underlined the fact that the preparation of

20 the food and distribution of meals had nothing to do and was not linked

21 with the police station department, and that is quite a normal thing. It

22 is logical and customary. Mr. Rendic testified that Mr. Meakic never even

23 entered the area where the food was cooked and prepared, and he didn't

24 have any authority to do so either. Furthermore, we have heard from

25 Mr. Rendic himself that he had his commander in the unit to which he

1 himself belonged.

2 Your Honours, you heard two witnesses from the system of the work

3 obligation, Rosic Branko and Vuleta Cedo, who were workers in the mine

4 complex of Ljubija. They were employees of the mine and were in charge of

5 maintenance for the system. They, too, had their superior.

6 You also saw that the coordinators of the groups, and they were

7 appointed, had an individual to which they reported back, to whom they

8 reported back, and that was Mr. Simo Drljaca. You also heard and saw from

9 document D1/17 that this same obligation and duty was what the security

10 had.

11 Your Honours, there is truly no dilemma to the Defence team, and

12 that this Trial Chamber has seen a sufficient amount of evidence and proof

13 presented here which coincide. They bear each other out and do not

14 challenge each other. They tally with respect to the existence of the

15 organisation of an investigation centre or the Omarska camp. So within

16 that system, the Defence is not saying that the Omarska Police Station

17 Department whose employee Miroslav Kvocka was, was assigned the post of

18 leader of the patrol sector and that they did indeed provide the internal

19 security of the camp.

20 This internal security was security for the buildings, the

21 facilities, and there was a circle of security provided by the members of

22 the Territorial Defence as well, and they had no connection with the

23 police station department. They had nothing to do with the police station

24 department. And Witness Pusac, Novak Pusac, testified to that fact who

25 was a member of that particular security.

1 You have also heard the testimony of many witnesses which were

2 called by the Prosecution who said that during the first two weeks in the

3 security system of the camp, in the centre itself for the facilities and

4 buildings, there was a special detachment or platoon of the special police

5 from Banja Luka. You have been presented with a document which Simo

6 Drljaca dispatched on the 13th of June in which he cautions and warns that

7 these people are escaping any kind of control, that they have got out of

8 hand and that he was unable to -- that his komandir Strazivuk, himself,

9 was unable to control them, and Mr. Drljaca was seeking assistance and

10 intervention, back-up, from his superiors.

11 Your Honours, to conclude and round off this issue, I think that

12 sufficient evidence has been provided for the Trial Chamber to become

13 fully acquainted with the organisational structure of the Investigation

14 Centre of Omarska, and that within that -- within that organisational

15 structure, it will be able to pinpoint and ascertain the position and

16 status of the accused, Miroslav Kvocka.

17 My learned colleague yesterday persistently used the term

18 "commander," "komandant," and in doing so, at least as far as I was able

19 to understand, she spoke about the camp commander, and she always located

20 and placed Mr. Meakic within that post by stating that his deputy -- and

21 stated that his deputy was Mr. Miroslav Kvocka. However, in her

22 presentation yesterday before this Honorable Trial Chamber and all the

23 other people attending this trial, my learned colleague showed a film, a

24 video. We all looked at these video clips and we all heard that a

25 journalist, a lady journalist who had visited the Omarska Investigation

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1 Centre took the pictures that have toured the world, and she represents

2 Mr. Simo Drljaca as the commander of the camp. We saw all that and heard

3 all that yesterday. Mr. Drljaca, the camp commander says, "It is not a

4 camp." He says, "It is a collection centre."

5 Now, it is difficult for me to understand and follow the thesis

6 put forward by my learned colleague given those facts and I raise the

7 question once again and ask whether the indictment charges Mr. Kvocka as

8 deputy komandir of the police station of Omarska for the responsibilities

9 of a deputy because of what the members of the police station, for the

10 actions of the members of the police station, as my learned colleague

11 says, but we maintain that it is a police station department, or whether

12 she is charging Mr. Kvocka as the deputy camp commander who was superior

13 in the camp to everybody except to Zeljko Meakic.

14 From this, we would deduce that Mr. Kvocka was superior both to

15 Mr. Jesic and to Mr. Mijic and to Lieutenant Colonel Majstorovic, and all

16 those other individuals who made up the Omarska Investigation Centre. I

17 have seen no proof, with all due respect, or evidence of any of this.

18 Quite the contrary, Witness J laughed when I asked her whether Mr. Kvocka

19 could have issued an order of any kind to Mr. Mijic, who was the chief of

20 the crime sector or -- in the police station or to Mr. Majstorovic. She

21 just laughed. We also asked other witnesses who worked in Omarska whether

22 Mr. Kvocka could have issued an order to Engineer Babic, for example, the

23 manager of the unit in Omarska and they all said no. Their answer was

24 no.

25 Therefore, let us narrow down this issue and take a look at what

1 the true role of Mr. Kvocka was and in order to do so, we shall have to

2 refer to document 1/17, because in one of the paragraphs and points, it

3 stipulates who is in charge of implementing this decision and supervising

4 its implementation.

5 Your Honours, in the course of the trial, we showed decision D1/17

6 to many of the witnesses so there is no need for us to present it once

7 again. But you saw, and you will see at the end of the order, the order,

8 the 31st of May 1992 to who the addressees were, who the order was

9 intended for. You will see that it says "Security." It does not say that

10 it was dispatched to the commander or manager or deputy manager of the

11 camp. It says one, to the Crisis Staff; two, to the CSB, Banja Luka;

12 three, to Mijic; four, to Majstorovic; five, to the mine management. The

13 order is being dispatched to the people, the decision is being dispatched

14 to the people whose duty it is to act upon that decision sent to them.

15 It is sent to the leader of security precisely in the way provided

16 for by the rules of service, by the rules and regulations. And through

17 testimony of Mr. Radic and Mr. Kvocka which coincide, we have identified

18 on the basis of that same document, that Mr. Mijic received the document

19 in fact. And bearing in mind the organisational level of the police

20 station department, Meakic, I meant, not Mijic, I apologise, Meakic.

21 Bearing in mind the organisational level of the police station department,

22 it is quite understandable that the komandir of the police station

23 department was also the leader of security, the head of security. Because

24 that security, as my learned colleague said, was engaged for the most part

25 all the members of the police force both active duty and reserve.

1 And let me underline, we do not wish to say that Mr. Meakic has

2 command responsibility because we've already said that the komandir of the

3 police station department was not in the chain of command and had no

4 powers with respect to the security because all the elements of that

5 security were defined and determined by the rules and regulations. He was

6 only there to implement that security.

7 Your Honours, the Prosecution abandoned the allegation that for a

8 period of time, Mr. Kvocka was a camp commander. They admitted, in view

9 of that, that certain witnesses could have gained an erroneous knowledge

10 of the fact, and that his conduct could have given them an erroneous

11 impression of his status. On the other hand, my learned colleague made a

12 submission which is contrary to the Defence, and it also runs contrary to

13 the general regulations applicable to the police force. Ms. Somers

14 claimed that a police station department, that the police station

15 department, at one point in time, became a police station and that

16 individual members of the police force became something else, that they

17 became superior officers.

18 In view of this, I have to quote my learned colleague,

19 Mr. Niemann, who made an introductory statement in this case and we agreed

20 with him that the police force is a strictly-regulated hierarchial

21 system. Mr. Niemann spoke about that in very specific terms when he

22 addressed the issue of the organisational structure of the police, and I

23 should like to quote one of his sentences from page 16. Mr. Niemann is

24 speaking about a document D1/17, page 16, I quote: "From this document,

25 Your Honours, we can see beyond any doubt that the information went along

1 the command lines upwards and downwards, that the information was kept

2 secret for obvious reasons."

3 Mr. Niemann spoke about this very strict police hierarchy on a

4 number of occasions, and it is concurrent with the allegations made by the

5 Defence. Judges themselves, Their Honours, often ask witnesses questions

6 about specific police rules and regulations. Her Honour Judge Wald asked

7 Witness Bujic at one point whether a policeman must intervene, is supposed

8 to intervene, if another police officer would engage in a criminal offence

9 or any other illegal matter and the response was "yes." And to that

10 response, Her Honour Judge Wald stated that it was, by all means, a

11 universal rule of the police force.

12 That is why we were somewhat surprised when we were faced with an

13 allegation which was contrary also to the introductory statement,

14 according to which a police station department could, by itself, de facto

15 become a police station, and that Mr. Kvocka was actually able to usurp

16 the position of a deputy commander and start acting as a deputy

17 commander. That submission cannot be sustained in any way.

18 Your Honours, you have seen that, on a daily basis, every 24

19 hours, people from Omarska were required to submit a report. You were

20 able to see, for example, that Mr. Zupljanin, who was the head of the CSB,

21 issued an order on the 17th of June, 1992 in which he states that

22 Mr. Kvocka was a leader of the patrol sector. We have to ask a question,

23 therefore. Was it not possible for Mr. Zupljanin to issue a decision in

24 which instead of leader of the patrol sector, Mr. Kvocka would have been

25 described a deputy commander of the police station?

1 You have also heard, Your Honours, the testimony of Mr. Bujic who

2 says that a police department commander, komandir, is supposed to go to

3 the seat of the police station every day to take his appropriate duties

4 for the day. Would it be possible, in view of that organisation, of that

5 very well-structured system, for a police department to become a police

6 station, without anyone responding, reacting to that in any way, and

7 people to start behaving as they please?

8 I must stress once again that the Prosecution, in its case, was

9 never clear as to whether he was the commander of the police station

10 department or the deputy commander of the camp.

11 We often speak about a commander or komandir. Let us try to

12 define the term itself. If we do not have actual information about his

13 status, we need to have certain elements on the basis of which his

14 position, his capacity as such can be identified. One such element is the

15 capacity to issue orders and the capacity to ensure that such orders are

16 implemented, that is, that such an individual should have enough authority

17 to make sure that his decisions and orders are implemented.

18 Your Honours, we have heard many witnesses in this case who spoke

19 about orders issued by all of the accused. I have to ask a question here

20 and I truly believe that you yourselves would be asking yourselves the

21 same question. Have we ever heard in this courtroom any single witness

22 who would have spoken about the contents of an order, of a specific order

23 here? I haven't.

24 Once again, we are faced with the problem of a certain amount of

25 absurdity in testimony, the issue which I will address later on. It is

1 true that orders were -- that they all claimed that orders were being

2 issued, that they listened to those orders. When you asked those

3 witnesses as to the contents of the order, they would often -- they would

4 always reply, "I didn't hear." That is why the whole issue seemed to be

5 somewhat absurd. Let me illustrate this example of witness Sefik Zjakic.

6 Mr. Zjakic was heard by the Chamber and he spent almost half a day

7 talking about Kvocka, how he walked about the camp, how he talked to the

8 people, how he helped some people, those who asked for his help. And

9 finally, in response to one of my questions and in response to a question

10 asked by Judge Fouad Riad, that Mr. Zjakic, on only one occasion

11 throughout his stay in Omarska did he see Mr. Kvocka. When? It was on

12 the first day when he was brought to Omarska, on the 30th of May, 1992,

13 when he left the bus and when he entered Mujo's room; whereas his brother,

14 Emir Zjakic, remained on the bus. Emir Zjakic, who several moments later

15 would become the victim of the shooting, the incident which occurred on

16 the 30th of May, 1992 that we have spoken about. Your Honours, we spent

17 half a day discussing the issue of orders, and finally we had a witness

18 who only once throughout those 23 days when he was here saw Mr. Kvocka

19 there.

20 I could give you a number of such examples. In certain cases, it

21 was the fault of the examining parties in this case. We were all aware of

22 those facts. Of course, our common purpose is the truth, and I still wish

23 to believe that we share the same common goal, that is, the truth.

24 Your Honours, my learned colleague stated at one point that

25 certain witnesses could have been under an erroneous impression; however,

1 couldn't they have been under this erroneous impression also as regards to

2 the deputy commander? Why? A moment ago I submitted, and I hope that you

3 will be able to establish that through the transcript, that we never, ever

4 heard the contents of any single order. What could de facto be shown in

5 connection with the deputy commander if not a specific order?

6 I will give you now, I will enumerate certain elements which go to

7 the issue of erroneous impression.

8 Within the security system of the Investigations Centre of

9 Omarska, they were only three professional police officers; namely,

10 Mr. Meakic, the commander of the police station department; Mr. Kvocka, a

11 leader of the patrol sector; and Mr. Radic in his capacity of a senior

12 police officer or milicioner, as they were referred to officially in those

13 days. All others were members of the reserve force.

14 Is that not the first element of erroneous impression? Is it not

15 a sufficient basis for those people to believe that the individuals in

16 question have a different status?

17 Mr. Kvocka testified, just as a number of witnesses did, that when

18 you have members of the police, of the reserve police force, and members

19 of the professional reserve police force, you would always structure the

20 shifts, the groups, so as to have one professional officer and others in

21 that group. On paper, they have the same obligations and the same duties;

22 however, in reality, they do not have the same expertise and the same

23 experience.

24 It is perfectly understandable that in every job, and the job of a

25 police officer is no different from other jobs, that those who have longer

1 experience and better expertise have an obligation to help, to lead, to

2 provide advice. And that was the practice which was applied in that

3 system where you had both members of an active and reserve police force.

4 That element could have created an erroneous impression or illusion with

5 those people, with those witnesses.

6 Further on, Mr. Kvocka, in his testimony, he stressed that within

7 the system of extraordinary security, he was a duty officer. A number of

8 regulations were quoted to that effect, and they specifically envisage the

9 existence of permanent duty service. So Mr. Kvocka, together with a

10 number of other individuals, was a member of a duty service, and by virtue

11 of that fact, this also could have created an erroneous impression with

12 the witnesses.

13 There was a room in which there was a duty officer. That room had

14 appropriate equipment. I mean, there was a radio station there, but it

15 only had the connection with the police station department and nothing

16 else. There was a local, an internal telephone which could only be used

17 within the compound. And now you have my learned colleague using the term

18 "commander of the camp" or "deputy commander of the camp," whereas in

19 reality, he didn't even have a telephone. In view of the extraordinary

20 war conditions, war circumstances, he was not even able to call his wife

21 to tell her that he would stay on duty later.

22 My learned colleague has invoked a number of symbols of power,

23 symbols of the commander. Your Honours, it was indeed a very small room,

24 which you can see on the model, a room in which five or six duty officers

25 would stay at the time; the room in which Mr. Zeljko Meakic, the commander

1 of the police station department, stayed. According to the majority of

2 the witnesses, Mr. Meakic was almost permanently at the camp, because he

3 was perfectly aware of the complexity of the situation and the difficulty

4 of his task.

5 In view of the shortage of space, Your Honours, regulations

6 applicable to the duty room were violated. Such duty room is off premises

7 for other individuals, and you have seen that two typists were also

8 located in that room. These ladies made appropriate notes, records, on

9 the work of the investigators. Whether they came with already drafted

10 documents or whether they drafted those documents on the spot, this was

11 testified about by witness Markovska and D10. And this, Your Honours,

12 tells you enough about the importance and the significance of this

13 security system and the duty room in general.

14 In the report of the CSB about the conduct of the members of the

15 Special Detachment of Banja Luka, the report which was signed by

16 Mr. Drljaca, mention was made of Mr. Jesic, Mr. Majstorovic, and other

17 investigators. No mention was ever made of the commander of the police

18 station department or the manager or warden of the camp; furthermore, no

19 mention was made of the commander of the extraordinary security force.

20 That was the kind of significance and importance that these individuals

21 had in Omarska.

22 We're perfectly aware of how complex the issue of Omarska is.

23 However, this is a story about people. But the people here were not major

24 players in that story, did not play any significant role in it. The fact

25 that these people merely worked there and were on duty there could also

1 have created the wrong impression; that they were some different people,

2 people who were not simple guards but who had some other authority as

3 well.

4 You have had an opportunity to see how central to the story this

5 duty officer was. So if a witness saw that the duty officer was there,

6 that he was on the phone in contact with others, they could have reached

7 an erroneous conclusion as to their status.

8 Mr. Kvocka stated at one point that he should have stayed apart,

9 away, that he should have closed his eyes and made sure that nobody

10 notices them. However, as a policeman and as a human being, he always

11 reacted. If he saw a police officer, member of the reserve police force,

12 he would warn him, and that particular fact could have created a wrong

13 impression with a layperson, who would then conclude that he was some kind

14 of superior officer.

15 He also warned the members of the special police force, but it was

16 not possible. Mr. Bolta testified about how they violated the regulations

17 of the rules, and this was also testified about by Mr. Sivac. If he had

18 not reacted, if he had not doing anything about it, nobody would have

19 reacted. However, because of the fact that he did react, many witnesses

20 were left with the impression that he was a superior.

21 He brought packages. He brought parcels publicly in broad

22 daylight, sometimes even several times a day. You heard a number of

23 testimonies about that. He did it publicly because he believed that those

24 people had the right to be informed, to have fresh clothes, basic

25 necessities, food. This is not something that he attempted to hide in any

1 way. That, as well, could have created this wrong impression because he

2 acted as a professional.

3 Some of the witnesses stated that they had seen Kvocka when he

4 came to work to take over duty from one of the shifts. The Defence does

5 not challenge that. We do not contest that. On several occasions, it is

6 true that Mr. Kvocka found himself there. However, Your Honours, it is

7 one of the basic duties of the duty officer. It is the duty officer who

8 is required to have appropriate information as to the presence of the

9 personnel, whether everybody is here, whether the superiors should be

10 informed about the fact that five people, for example, haven't showed up

11 for work and whether five additional individuals are needed in order to

12 establish appropriate security system.

13 Whether this is a position of a superior officer, whether this is

14 something that could also have created the wrong impression of the status

15 of the individual in question, no, the police is a very strictly-organised

16 system, and that is why we believe that the same way as a -- the wrong

17 impression could have been created amongst the witnesses that Kvocka is

18 the commander, again, I don't know of what, that wrong impression could

19 also have been created in connection with his status as some kind of

20 deputy of the commander.

21 My learned colleague, in attempting to create this erroneous

22 illusion which is not based on evidence and proof, referred especially to

23 two pieces of evidence. She refers to the interview which Mr. Kvocka

24 allegedly gave to Mr. Chris Bennett. Kvocka testified at length about

25 that.

1 The interview was recorded as Exhibit 3/201 and 3/202. We have

2 already said that Mr. Kvocka did not give Chris Bennett an interview.

3 That Chris Bennett, the deputy head of the crisis group or group for

4 crises, that he was not a journalist of the Slobodna Bosna paper.

5 However, we're not challenging the fact that Mr. Kvocka spoke the truth,

6 that he -- that Chris Bennett was in his house on two or three occasions

7 and that he talked to him. That interview was never authorised.

8 Mr. Kvocka saw the interview for the first time here when he was

9 detained.

10 However, we are ready to repeat and to support the view presented

11 by my learned colleague where Kvocka was interpreted in the interview as

12 saying that in the same situation, she interpreted it as him saying that

13 he would have done the same in the same situation. In talking to

14 Mr. Kvocka in preparation for my closing argument, he said, "I would, but

15 I was -- when I said that, I had in mind exclusively my own personal

16 attitude, my own personal conduct. I would still take packages to

17 people. I would still, in any situation whatsoever, if I were to notice

18 any irregularities or if I were to see that people were being mistreated,

19 yes, I would react in the same way. I would caution people. I would

20 reprimand them. I would try to prevent what they were doing. I would,

21 again, stand in front of a rifle barrel and use my body to protect the

22 lives of people as I did on the 30th of May 1992."

23 That is what Kvocka meant when he talked to the journalists on

24 that topic and he repeats that today. He repeats the same thing. If that

25 is a crime, Your Honours, that somebody is ready to do what he did then,

1 to stand in front of a rifle barrel to prevent somebody from being hurt

2 and to safeguard a man who had been suffering because his brother had been

3 killed, and under the effects of alcohol, Rosic Branko, Rosic Milenko,

4 Andzic Ljuban testified to that, an affidavit that we had by Knezic

5 Miroslav, you were able to see certificates from doctors on the injuries

6 of Zjakic Mirovan and the other man.

7 Then, even to the detriment of Mr. Kvocka, Zjakic Emir appeared

8 before this Trial Chamber to tell the story as it happened, that this

9 story occurred, that this thing occurred. Had it occurred in the United

10 States of America from where my learned colleague comes, you can be sure

11 that the heroism of Mr. Kvocka would have been the subject of films

12 where -- and what he did on the 30th of May 1992. That story would have

13 been turned into a heroic film.

14 Your Honours, unfortunately, on that occasion, Mr. Kvocka was too

15 late by several fractions of a second and was not able to prevent the

16 death of three or four men. He was not able to prevent the wounding of

17 Emir Zjakic. He was not able to prevent the wounding of Miroslav Nisic,

18 but he did manage to stop a man being blown asunder by standing in front

19 of a barrel and saying, "Shoot at me."

20 Your Honours, that was an impressive act, an event whose weight

21 cannot be viewed from a time distance of almost nine years. We cannot

22 view it from the distance of the relationships that prevailed at the time

23 there, the fear, the hatred. My learned colleague yesterday mentioned

24 that there was an escalation of nationalistic feelings, extreme

25 nationalism. I agree with her there, but that escalation of nationalism

1 occurred on all three sides. I would like us to have the necessary time,

2 at one time, for some men of science to take those three months and to

3 hear the news bulletins from Zagreb, Belgrade, and Sarajevo. They were

4 not news bulletins. They were centres of hatred, a hatred which was

5 projected in Bosnia-Herzegovina and led to the SDA, the SDS, and HDZ.

6 Unfortunately, here we were in a position of seeing all those

7 relationships just from one side because Ms. Sophie Greve, when she speaks

8 of those events, she focused her investigations on just one side. You

9 cannot make any great comment to the findings of Ms. Greve and the Defence

10 does not wish to do so, but we cannot make criticisms and we don't wish to

11 do so. But we do think that if one wants to be realistic, then one would

12 have to have the same approach to all three sides, all three centres.

13 Your Honours, would this be an opportune moment to make the break,

14 perhaps?

15 THE INTERPRETER: Microphone, please, Judge.

16 JUDGE RODRIGUES: [Interpretation] I was saying, Mr. Krstan Simic,

17 this is indeed a good moment to take the break. We will adjourn for half

18 an hour.

19 --- Recess taken at 10.50 a.m.

20 --- On resuming at 11.28 a.m.

21 JUDGE RODRIGUES: [Interpretation] Please be seated.

22 We now have Judge Fouad Riad with us again. Mr. Krstan Simic, you

23 have the floor for the continuation of your closing argument. Go ahead,

24 please.

25 MR. K. SIMIC: [Interpretation] Thank you, Your Honour.

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1 Your Honours, may we go into private session for a brief moment at

2 this point.

3 JUDGE RODRIGUES: [Interpretation] Yes, let us move into private

4 session for a few moments.

5 MR. K. SIMIC: [Interpretation] Your Honours --

6 JUDGE RODRIGUES: [Interpretation] Not yet, not yet. Just a

7 moment, please.

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8 [Open session]

9 MR. K. SIMIC: [Interpretation] Your Honours, my learned colleague

10 very frequently referred to Mr. Kvocka's interview. It is a partial one,

11 and she states that from the interview, it emerges that Kvocka became the

12 deputy of Mr. Meakic. She draws that inference. Meakic's request for

13 assistance under the given circumstances, in the affairs he had to

14 conduct, she says that she takes that to be his appointment to the

15 position of komandir. This is untenable. Mr. Meakic is an educated

16 policeman. He knows how far his competencies and authority stretches.

17 And he is a man of the police force.

18 But let me return to the relationship de facto and de jure. De

19 facto, the superior must be recognisable and tangible, and de jure, he has

20 a source and foundation for his power. But not de facto. It is factual,

21 it must be seen, and it must be manifest.

22 Now, I ask the following question: Did any witness at any time

23 during the trial show Kvocka's power? No, they did not. My learned

24 colleague tried to present this power of Kvocka's, or maybe she

25 experienced this sort of power in his relationship to his

1 brothers-in-law. It is true that Mr. Kvocka, on the 30th of May, 1992, on

2 his own initiative, violating the rules and regulations, took his

3 brothers-in-law to his own home. That was the 30th of May, the first day

4 of the existence of the investigation centre. And it is quite

5 understandable that Mr. Kvocka, bearing in mind the fact that on the

6 morning of the 29th, he heard about the information for the first time,

7 that that's where the camp would be and that it would last for about 20

8 days. He could not have known what kind of conditions would prevail in

9 Omarska.

10 Quite simply he personally knew his brothers-in-law, and in his

11 testimony he was resolute. He said, "It was not their fault. They were

12 not guilty. I know them. I can guarantee for them," and he was

13 revolted. And in the absence of their guilt, he acted in the way he did.

14 Your Honours, you have heard the witnesses testify that Mr. Kvocka

15 had to take his brothers-in-law back which shows the absence of his power,

16 of any power on his part, and he had to return them in a demeaning way.

17 On the 23rd of June 1992 which was the time until which he performed his

18 duties in Omarska, he was on duty in Omarska. It is true that Mr. Kvocka,

19 in his interview, said that administratively, he was transferred to the

20 reserve police force at Tukovi as a police officer who believed and

21 thought that he was acting correctly, that his conduct was proper. He

22 could not have -- the idea could not have dawned on him that he had been

23 sacked. Simo Drljaca told him, "Go home and wait."

24 From Mr. Kvocka's testimony, and his wife's testimony, you heard

25 just how many times he went to see what his fate would be. On the 1st of

1 July, he received orders to report to a reserve police station which was a

2 marginal section station where he was the only active policeman.

3 When the Prosecution disclosed evidence, only then did Mr. Kvocka

4 realise that on the 23rd of June, he had, in fact, being relieved of his

5 duties, sacked from his job. But the change that led up to this, that led

6 to the fact that Kvocka was told to report to duty on the 1st of July was

7 an order by the chief of the CSB, the Security Services Centre. This is

8 contained in document D1/39 which stated that persons who did not declare

9 themselves as individuals who support the policy of the SDS should be

10 relieved from their duties at places where they would come into contact

11 with certain information and knowledge, but that individuals of that kind

12 must not be sacked without the knowledge and specific order from the chief

13 of the Security Services Centre, the CSB.

14 Mr. Kvocka saw document D1/17 in this courtroom for the first

15 time. It was an order signed by Simo Drljaca on the 31st of May 1992.

16 Mr. Kvocka, here in the courtroom, for the first time, saw that order

17 by -- the order by Mr. Zupljanin, and it was only after granting the

18 interview that Mr. Kvocka came to realise what he had, in fact,

19 experienced during those days. And in his own mind, he just could not

20 accept and believe that he had been sacked. What he wanted to believe was

21 that he had been transferred. But, no, Kvocka was sacked but the order

22 from this high authority prevented the execution of it and enabled

23 Mr. Kvocka to appear in the reserve police station at Tukovi.

24 My learned colleague further states that he went there as an

25 assistant komandir. Your Honours, you have heard the testimony of

1 Mr. Lazar Basrak who was the assistant of the komandir at the police

2 station in Tukovi. You also have an affidavit by the jurist Drazic Mile

3 who was the komandir of the police station at Tukovi.

4 There is absolutely not a single shred of evidence that Kvocka

5 went there as an assistant and he took up a post of any kind there. On

6 the contrary, Kvocka did administrative jobs there. He had no information

7 or knowledge to the fact that on the day when he arrived at the Tukovi

8 police station, the komandir of the Prijedor police station called up the

9 Tukovi police station and informed the assistant komandir of the reserve

10 police station of Tukovi to monitor him because he was a traitor that they

11 were getting a traitor in their midst.

12 Your Honours, at that time, the greatest -- the worst type of

13 qualification was that one of the three warring parties should designate

14 one of their members as a traitor. Kvocka's superior, the komandir of the

15 police station, when he was -- when he had to keep him there, because he

16 had received an order from the CSB chief, informed the staff of the police

17 station of Tukovi who they were getting. This explains post-factum why

18 Mr. Kvocka sat in a small room and did a bit of writing. He was not

19 allowed to go out because he was not trusted. My learned colleague says

20 that this was an advancement for Mr. Kvocka. If I was to follow her

21 logic, then I would show how this advancement developed in keeping with

22 the thesis put forward by the Prosecution.

23 The Prosecution alleges that in June, Kvocka was the deputy

24 commander or the deputy of the komandir of the police station of Omarska.

25 He goes to Tukovi. He becomes an assistant komandir, a step down the

1 ladder. Although Mr. Kvocka, in his cross-examination asked by

2 Ms. Somers, he answered three times that she should stop trying to put

3 words into his mouth that he was an assistant there. He said that he was

4 there doing the work of a sort of assistant, but on several occasions, my

5 learned colleague wanted to receive an answer -- extract an answer to that

6 question.

7 It is not disputable that Mr. Kvocka, during October 1994, and

8 we've presented documents in that respect, became the shift leader in the

9 Prijedor police station, a police station in which, according to its

10 structure, there was the post of shift leader. That is another step down

11 the ladder. And my colleague says, my learned colleague says that he had

12 a brilliant burgeoning career upwards.

13 When we talk about the post of shift leader, let me stress that in

14 October 1994, it was the year of peace when negotiations were being

15 conducted and when certain institutions had been established, and when

16 Mr. Drljaca had left the public security station, and that another man

17 came to head the public security station who held highly the professional

18 qualifications of Mr. Kvocka who was one of the rare educated and trained

19 policemen at the time. And it was at that time that Mr. Kvocka engaged in

20 a very dangerous operation action, and he testified to his participation

21 in that with an -- and so did Bojic through an affidavit. And he, in

22 fact, led the operation on behalf of the Ministry of the Internal Affairs

23 for these individuals to be arrested. Mr. Bojic was the assistant

24 minister at that time.

25 So this arrest was so significant that an assistant minister and

1 head of the Crime Service in the MUP was assigned this task, and for his

2 collaborator, he selected Mr. Kvocka, who was a professional. That is how

3 they were able to undertake that action, and that is when Mr. Kvocka

4 became the shift leader. That is the first, how shall I put it, how shall

5 I say, a slight rise in the career of Mr. Kvocka. But that was in the

6 year of 1994.

7 So Mr. Kvocka was sent off from Omarska with the words that Simo

8 Drljaca said to him, "Kvocka take down your pants to see if you were

9 circumcised by the Muslims when they sucked your brain out." So those

10 were the words, his farewell words, the farewell words of the chief of the

11 public security station to Mr. Kvocka. Let me remind you that many of the

12 Prosecution witnesses testified to how, on the 23rd of June, Kvocka came

13 to leave Omarska.

14 I would also like to mind you and quote the testimony of Witness

15 F, and she said the following. She said this to Ms. Hollis. It is in the

16 records, the transcript, for this Tribunal. "He was sacked because he was

17 good for you but bad for us." Witness F explained that when she said

18 "good for us," it meant for us Muslims, and "bad for you," that she meant

19 for the Serbs. Bad for the Serbs and good for the Muslims. She also

20 confirmed that she got this confirmation from the guards.

21 We heard this, Your Honours, in this very courtroom, and we heard

22 it from many witnesses. So, therefore, Mr. Kvocka had to bear the burden,

23 the brunt of his conduct. Not only his conduct towards his

24 brothers-in-law and his political options. You heard that he supported

25 the concept of the reformist forces, and my learned colleague acknowledged

1 that too.

2 We have had affidavits from Ratko Danovic about that, Milorad

3 Dodik was another, and Milan Racic as well, affidavits before this

4 Tribunal. You have documents that all three parties, the SDS, SDA, and

5 HDZ said this unison that leftist parties cannot be allowed to take power,

6 especially the reformists. That was yet another reason for the

7 persecution of Mr. Kvocka who did not fit in to the concept of a policy

8 and politics which was being asserted at that time.

9 My learned colleague just mentioned that Mr. Kvocka was married to

10 a Muslim lady. That was not the only reason. There were many people who

11 were married to a people of other ethnic groups and religious creeds, and

12 they behaved differently. So we're not asking the Trial Chamber to look

13 at the marriage as a marriage. We are appealing to the Chamber to look at

14 Mr. Kvocka's conduct and behaviour to the members of other nationalities

15 and ethnic groups.

16 Your Honours, you would be surprised if you were to learn just how

17 many marriages in this national hysteria were destroyed and fell through.

18 Mr. Kvocka and his wife remain together, married, in wedlock. You have

19 had occasion to hear the positions of everybody about mixed marriages.

20 You have seen documents presented here, testimony presented, affidavits of

21 Mira Skaric, Mrs. Kvocka, Miroslav Kvocka, and the kum, the kumship in a

22 mixed marriage, when people would be kums to a Muslim and a Serb and

23 support this kind of marriage.

24 Your Honours, whether these were elements of discrimination which

25 are deemed by the Prosecution, whether in the relationship Mr. Kvocka

1 wanted to abuse on religious or ethnic grounds, you have heard Racic

2 Milan, a witness who testified that Kvocka, in very difficult situations,

3 sought a job for Mr. Hasan Oklopcic, his kum, wanting to help him.

4 Perhaps from this distance in time and place, it is difficult to perceive

5 what that actually meant. But at the time it meant a great deal, indeed.

6 The packages. It is around packages that the wrong impression was

7 also given. The question of packages arose many times. Questions were

8 asked whether packages were only brought in to people you knew, to

9 friends. No. Mr. Kvocka, and you heard this from many witnesses, brought

10 packages and handed them to the people they were intended for. Mr. Kvocka

11 himself lived under difficult conditions. He could give something that

12 his family had to others. But people would bring packages to his own

13 house, to his own family, to his mother-in-law, who was an old Muslim lady

14 in Prijedor, and he transported these packages.

15 So the packages did not have any discriminatory roads or paths.

16 Anybody wanting to send packages in to the camp could do so, and he took

17 packages for people that he never knew. He didn't know who the packages

18 were from, but he took them and handed them around. So all this is the

19 kind of picture that did not fit in to the Prosecution's case properly.

20 If we look at Mr. Vasif's statement, and if you look at the

21 Samardzija's testimony - his testimony was very impressive here, I have to

22 say that - that he was asked that Mr. Kvocka be monitored as a hostile

23 element, as an enemy, by Simo Drljaca; that same Simo Drljaca, that he had

24 asked him to watch Mr. Kvocka.

25 So all these events speak of an all-embracing, comprehensive

1 relationship and the type of circumstances that Mr. Kvocka had to pass

2 through. It is through this prism that we should look at his relationship

3 towards the members of other ethnic groups. And finally, that there is

4 some symbolism in the lives of people. And finally, may I say that

5 Mr. Kvocka's only daughter married a Croat.

6 Your Honours, today in Bosnia-Herzegovina, one of the pivotal

7 questions is the establishment of the constitutive establishment of all

8 three peoples, the Serbs, the Croats, and the Bosniaks. Mr. Kvocka was a

9 forerunner for the establishment of this, because in his family, he has

10 all three constituent nations in his own family.

11 Is there any greater cynicism, Your Honours, that a man behaving

12 in this type of way, in asserting principles of this kind, is now being

13 charged for persecution, precisely for the persecution of the Muslims,

14 Bosniaks, and Croats? But life writes strange stories, especially in the

15 regions that we come from, and very often it is difficult to understand

16 all those stories and circumstances.

17 My learned colleague often emphasised that there was no coercion,

18 they did not do what they did under duress. I'm talking about Kvocka.

19 No, there was not. But let me ask a question: What kind of choice did

20 Mr. Kvocka have, faced with a situation of this kind?

21 You have seen from the many testimonies, the testimony of Stupar

22 Djordje, another man from a mixed marriage, with a mixed marriage. Banja

23 Luka and Prijedor were hermetically sealed up until the 28th of June,

24 1992. Quite simply, nobody was able, in any way whatsoever, of the Serbs,

25 to leave Banja Luka or Prijedor, for example. There was an encirclement.

1 On the 28th of June, the corridor was broken through at Brcko, and that

2 was for the first time that people had the physical possibility of

3 leaving.

4 You have seen what Djordje Stupar had to go through and experience

5 in order to leave. You have seen the consequences that he has had to bear

6 today. And Stupar Djordje is somebody who had the necessary financial

7 means to be able to leave. He had somewhere to go. But the others who

8 were in the Bosnian boiling pot had no way out.

9 To leave the police force would have meant mobilisation into one

10 of the units and being sent off to the battlefields where people were

11 killed. And you heard that people were coming back from Gradacac, from

12 the witnesses. To be in the reserve police force during an armed conflict

13 was a privilege, a great privilege. Unfortunately, through force of

14 circumstance, it was not for these people, because they were assigned to a

15 place they did not know would even be established, until they got there

16 and saw what it was and what was going to happen there. Did they have a

17 choice? Are they responsible? Are they accountable because they had no

18 choice?

19 Bearing in mind all this, Your Honours, we believe that the

20 Prosecution has not proved beyond any reasonable doubt that the Police

21 Station Department Omarska at one point in time became a police station in

22 Omarska. Likewise, it has failed to prove that Miroslav Kvocka de facto

23 was performing duties of the deputy commander of the police station in

24 Omarska for which the Prosecution claims was established during these

25 events.

1 In particular, the Prosecution has failed to prove that Mr. Kvocka

2 was the deputy commander of the camp should the Prosecution be persistent

3 in its use of the word "commander," that is, that it refers to the

4 institution of the camp and not to the station which provided security for

5 that institution.

6 As for the illusion and the wrong impression which was subject of

7 this discussion, I have to point out that Witness T, witness of the

8 Prosecution said that Rade Ritan was the superior. That he occupied a

9 superior position. Witness Y, another Prosecution witness, stated that

10 Milojica Kvocka [as interpreted], simply because he sat down and he was

11 watching as they were being hosed down with the water on the 24th of July,

12 was -- also occupied a higher superior position.

13 Witness AK, I have to correct my learned colleague, stated that

14 Mr. Kvocka was somewhat different than others. That is exactly what I

15 said, that he was different from the others because he was involved in

16 duty services which were different from the classical duties of the

17 members of the security personnel.

18 In addition to that, there was a number of witnesses who, in

19 interviews with Prosecution, identified a number of other persons who had

20 different higher status, Zeljko Marmat for example, Zdranko Predojevic as

21 well. But, of course, the Prosecution made a selection of witnesses and

22 they called those witnesses whose statements were in support of their

23 case. What I'm trying to say is that it was very easy to become under a

24 wrong impression and under an illusion in this case in view of

25 circumstances.

1 Your Honours, my learned colleague opened the issue of witnesses

2 yesterday, and the motives for testifying. On that occasion, she said

3 that Prosecution witnesses were victims and that they had no motives,

4 whatsoever, to incriminate the accused or to present the facts in a

5 different way. The implication being that by the very fact that they did

6 not have any specific motive that they should be trusted.

7 In respect of Defence witnesses, well, we have a different

8 approach to the issue, not Defence witnesses, but as far as the extent of

9 the Defence is concerned. We believe that those witnesses indeed were

10 victims. As you can see, some of them are still staying in third

11 countries, and they still cannot go back to their former place of

12 residence. That, in itself, has created a certain amount of hatred within

13 themselves. And they, by virtue of that fact, do have different motives

14 to come and testify.

15 We have drawn your attention to the fact that we are dealing with

16 institution of professional witnesses. We have identified their

17 statements and those witnesses in our final brief, but here in public

18 session, we will only mention a few of those witnesses in order to bring

19 your attention to a phenomena which we believe is a general phenomenon

20 here at the Tribunal. Bearing in mind the goals of the Tribunal and the

21 standing of this institution, this Tribunal has to be respected and held

22 in profound respect by the general public. Therefore, no witnesses who

23 are likely to provide false testimony and lie should be admitted here into

24 this courtroom. And in -- we should prevent the possibilities of any con

25 tempts of court in this case.

1 Witness Vasif Gutic appeared before this Tribunal. He testified

2 in the Tadic case. And in the Tadic judgement, it was on the basis of

3 this testimony that a stand was adopted en masse systematic rapes which

4 also constitute one of the elements of the Prosecution. This witness,

5 Witness Vasif Gutic in this case.

6 I am stating publicly, I know this is followed by the media that

7 Vasif Gutic played games with this Tribunal. On two or three occasions,

8 he claimed that he had talked with Dr. Savic about the rapes of Muslim

9 women in Trnopolje including some very young girls. Your Honours, I would

10 like to appeal to a journalist such as was the case with the journalist

11 Gutman, for example, to verify, to check whether Dr. Savic ever worked in

12 the hospital, and I claim with full responsibility that the doctor in

13 question never worked in that hospital.

14 When you have a look at the transcript of Witness Vasif Gutic, you

15 will see that I asked him two times whether, indeed, we are talking about

16 a lady doctor because I made research at the hospital and I found out that

17 there was a male doctor, a gynecologist, Dr. Savic there. Witness Gutic

18 construed the whole story, and he laughed at my face because he was

19 perfectly aware that I knew the truth. Vasif Gutic, before this Chamber,

20 and once again I make an appeal to the journalists to verify this, that he

21 was supposed to sit for his last exam on the 26th of May at the medical

22 faculty in Banja Luka, and he also stated that in 1999 he enrolled at the

23 Sarajevo University. This is something that can be easily checked. That

24 as well is a lie.

25 We from the area of the former Yugoslavia, we remember very well

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1 the cynicism that was stated by Mr. Vasif Gutic. A TV series was

2 broadcast before the war in Banja Luka which was called "The Hit List of

3 Surrealists," and there was a character in that series which was used for

4 the purposes of intimidation, and that individual was used as a victim by

5 Mr. Vasif Gutic in Omarska.

6 I should like the story to be further explored and I should like

7 us to be very mindful of the issue of witnesses here because I believe I'm

8 firmly convinced that we are here with the same task, that is to ascertain

9 the truth. And Mr. President, you, yourself, emphasised that fact a

10 number of times.

11 Another witness that I would like to talk about is Edin Mrkalj a

12 police officer who testified in a public session here. Mr. Mrkalj knows

13 very well that what kind of the organisational structure was in place

14 within the police force. And because this is a trial of Mr. Kvocka, he

15 stated that Kvocka was the commander. My learned colleague speaks about

16 an illusion. There cannot be any illusion or wrong impression on the part

17 of a professional police officer. He consciously wanted to harm the

18 accused in this case.

19 He described the uniform in a totally erroneous way when he

20 attempted to describe the camouflage uniform which was worn by

21 Mr. Kvocka. It was a camouflage police uniform. You will see from the

22 evidence, as to the difference in various camouflage uniforms, that is,

23 mainly the difference between a police camouflage uniform and a military

24 camouflage uniform. The man who testified in such a manner about Zeljko

25 Meakic, he spoke about Zeljko Meakic as the later commander who replaced

1 Kvocka, who exposed himself as a commander and he's a member of the police

2 officer and could be seen on the photograph together with Mr. Simo

3 Drljaca. Mr. Edin Mrkalj failed to recognise Mr. Meakic on this

4 photograph.

5 Your Honours, these are sufficient indicia as to kind of witnesses

6 who testified in this case. You had an opportunity to see Nihad Haskic.

7 My learned colleague stated yesterday that Nihad Haskic stated that

8 Mr. Kvocka said after the attack on Banja Luka, "See how Tudjman Ustasa

9 has fared." He never said that, and you had an opportunity to see what

10 kind of witness a Mr. Nihad Haskic was. Look at the transcript.

11 What I'm trying to say is the following: When are we going to

12 have proceedings against certain witnesses who manifestly, obviously, and

13 in a blatant impertinent way state untruths and lies before this

14 Tribunal. Dragan Opacic is a case in point, and we believe that the issue

15 will have to be brought before this Tribunal.

16 Edin Mrkalj is the only witness who said, my learned colleague

17 failed to mention the fact, but we are not afraid of mentioning it, that

18 Mr. Kvocka, that he had seen Mr. Kvocka being present during the abuse of

19 two individuals.

20 One of the incidents in question is the murder of Ilijaz Dobric

21 which is a lie. And in this respect, let me mention Witness Y, a witness

22 of the Prosecution. Witness Y came to Omarska on the 4th of July after

23 Kvocka had been absent from Omarska for 10 days. And he testified about

24 the murder of Ilijaz Dobric although Kvocka had left Omarska before that.

25 The same witness, in order to incriminate Mr. Kvocka, speaks about

1 the murder and mistreatment of Izet Memic also known as Buco. This

2 witness responded that the information as to the death of Izet Memic was

3 received by him from Izet Fazlic who was not hurt, but his statement was

4 disclosed. The individual was arrested on the 2nd of July 1992.

5 Your Honours, if you should look at the video clip, that is the

6 video recording of the testimony of Witness Mrkalj, you will see what I'm

7 trying, what I'm attempting to say. It is high time for the witnesses

8 both of the Prosecution and the Defence before this Tribunal to start

9 telling the truth.

10 And finally one more thing in respect to witnesses. My learned

11 colleague relied on the testimony of Witness AV in view of the fact that

12 this is a protected witness, I should like us to move into a private

13 session for several moments, please.

14 JUDGE RODRIGUES: [Interpretation] Very well, let us move into

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15 MR. K. SIMIC: [Interpretation] Your Honours, my learned colleague,

16 in wishing to demonstrate Mr. Kvocka's responsibility in line with 7(1),

17 spoke about several incidents for which she considers that they do, in

18 fact, demonstrate Kvocka's complicity through the existence of a common

19 plan related to this incident. As they are the only incidents that the

20 Prosecution mentions, in addition to the Mrkalj Edin one, I shall be very

21 brief in referring to each of those incidents.

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2 [Open session]

3 MR. K. SIMIC: [Interpretation] My learned colleague mentioned,

4 furthermore, the beating of Mr. Emir Beganovic. She mentioned his

5 testimony linked to the incident with Nikica Janjic, the list and in pit

6 2. Was any evidence presented here about burials in pits of any kind?

7 Were investigations conducted in that direction at all?

8 But the essential point in all this is that in the

9 cross-examination of Mr. Kvocka, Distinguished Judge Riad, in wishing to

10 clarify this situation, asked Kvocka about that particular incident.

11 Mr. Beganovic was talking about beatings by Nikica Janjic at about the

12 12th of July, 1992, one or two days, that is, Petrovdan, that is, St.

13 Peter's Day, when Mr. Kvocka had left Omarska and when he was not in

14 Omarska at all.

15 In our final brief, we present different arguments to discredit

16 Mr. Beganovic because of his criminal past, the fact that he stood trial

17 and that he has a criminal record. Those records show that he is an

18 individual who has been mixed up in a number of crimes. He was only

19 prosecuted for several of them, and he wanted to hide those facts from

20 this Court. We consider the fact that the -- the fact that the witness

21 says that this incident took place when there is no doubt that Mr. Kvocka

22 was not at Omarska shows the force of our arguments.

23 My learned colleague also mentioned Witness Sifeta Susic who

24 claimed that Kvocka, when she was arrested on the 24th - but evidence

25 shows that this was on the 20th, in view of the testimony of Nusret

1 Sivac - by orders from Kvocka, was sent and detained under inhumane

2 conditions. I must state that Mr. Kvocka testified to that event. He was

3 absolutely not present when Sifeta Susic was brought in.

4 Nusret Sivac also spoke about this incident, a policeman who knew

5 Kvocka very well because they grew up in the same street, Nusret Sivac and

6 his wife. He also knew him from the police force because they had worked

7 together for many years. Nusret Sivac, in his testimony, when he was

8 brought in together, never mentioned Kvocka at all, that Kvocka was there

9 on that day at all. Had Kvocka been there, Nusret Sivac would have taken

10 great satisfaction in highlighting that event, especially as Sivac had

11 stressed that the women went in straight away and that they weren't able

12 to see what was going on outside.

13 Your Honours, when you come to look at Nusret Sivac and Sifeta's

14 testimonies, you will come to conclude that Mrs. Susic has been hurt, and

15 quite understandably she has focused her hatred on the colleague who she

16 knew had been there when she experienced what she had experienced.

17 Finally, at the end of the incidents which my learned colleague

18 considers -- that my learned colleague considers Mr. Kvocka to be

19 responsible for, pursuant to 7(1), common purpose, was that he was present

20 when Nusret Sivac was brought in for the first time. We have heard

21 detailed testimony by Mr. Kvocka on that incident, as well as by Mr. Sivac

22 and by Mr. Brane Bolta as well. Their testimonies, in global terms,

23 coincide; they are the same, in general terms.

24 On that occasion, Kvocka came up to -- when the search was taking

25 place by the special police force, and he wanted to see what was happening

1 to Mr. Sivac, he wanted to ask his superiors. And he came back and said

2 that his chief, Mr. Mijic, had told him, as Mr. Sivac had said, that this

3 was a mistake and that the policeman should send him back; that it was the

4 sister of Nusret Sivac that should have been brought in.

5 My learned colleague yesterday presented the thesis that the very

6 fact that a member of the security force, Mr. Kvocka, Miroslav Kvocka,

7 conveyed the message, because he was a sort of postman carrying this

8 message, that he has command responsibility; and that this conveyance of a

9 message was, in fact, a warrant for the arrest of Witness J.

10 Your Honours, you have both the testimony of Nusret Sivac and

11 Brane Bolta. Quite simply, Mr. Kvocka, as a policeman, was not able to

12 issue any kind of orders for arrest or detention of anyone. That is a

13 general rule. We don't say he didn't go off, come back. His chief,

14 Mijic, said, "No, it's a mistake. Send him back." But is that an order?

15 Does that constitute an order? Is that the status -- did he have the

16 status of a superior? Postmen and the conveyors of messages seem to have

17 suddenly become superior officers. I don't think so. I don't think there

18 is any theory to support that.

19 Your Honours, finally, in completing my closing arguments, I

20 should like to dwell for a few moments on an essential question. I feel

21 that I have presented many of our views in our final brief, but let me

22 focus on this particular one in conclusion, that is, responsibility by

23 virtue of the theory of a common purpose, the common purpose theory.

24 The Defence has delved into this question in detail in its final

25 brief, and in doing so it has presented a thesis for which it finds

1 confirmation in the mentioned decision -- Brdjanin Talic decision.

2 Namely, we consider that it was the duty of the Prosecutor, in the

3 indictment already, to plead responsibility in keeping with the theory of

4 the common purpose, the common purpose theory; that it should have done so

5 at the start, in the indictment. Because if they omitted to do so, then

6 the Defence has been withheld the right to a proper defence and a fair

7 trial, because this concept of responsibility and accountability has

8 elements which we should address.

9 Quite simply, the indictment does not contain any single

10 intimation of responsibility based on the common purpose theory or a

11 common criminal intent or plan. For the first time, this theory is put

12 forward as a form of responsibility in the introductory address, opening

13 statement, made by Mr. Niemann.

14 Now, the question arises here: Is that possible? You will see in

15 the decision made by the Trial Chamber in the Talic and Brdjanin case that

16 the pivotal argument is focused on the indictment, and that the Trial

17 Chamber demands not only intimations of this kind of concept of

18 responsibility, but that it demands information, information about certain

19 definite facts which will enable the Defence to prepare itself for the

20 defence case.

21 It is in that direction that an objection has been upheld, and the

22 Prosecution has been told that it should clarify this type of

23 responsibility by adding additional information, additional facts, which

24 would allow the Defence to prepare its defence case. That is why I

25 consider that at this stage of the trial, that is to say, now, we cannot

1 allow the Prosecution to refer to these elements, to this type of

2 responsibility.

3 Also, in our final brief, we have analysed this question, and we

4 also consider and we present this in our final brief, that the division

5 made by the Appeals Chamber in Tadic is not an adequate one, and the first

6 and second group, in fact, contain the same elements - the same elements.

7 So that we consider that the Prosecution was duty-bound to prove

8 and to show very specific elements of this type of responsibility, and I

9 raise the question of what a criminal enterprise is in this case. Is it

10 the Serb people, in view of yesterday's statement by Ms. Somers that the

11 Serbs had taken over power, had been arming themselves, that it was the

12 Serbs that did this and the Serbs that did that? Is criminal enterprise

13 the Public Security Station of Prijedor? Is criminal enterprise the

14 Omarska Police Station Department?

15 So we have never talked about the essence of this enterprise, and

16 the Prosecution made no attempt to show the state of mind of the accused

17 Kvocka, whether Mr. Kvocka supported the incident in which Dragan Popovic

18 took part, whether any evidence exists in that sense. I don't think so.

19 I think the Prosecution only subsequently, having received the

20 decision in the Tadic appeals that without a proper determination and

21 preparation and evidence to develop this theory, which it has not backed

22 up by any evidence or proof -- and as other Defence counsel will discuss

23 this issue at greater length, I would just like to say that this type of

24 responsibility is questionable in a case where it has not been

25 incorporated into the indictment, as we set out in our final brief. It is

1 inadmissible, to our mind.

2 Your Honours, in view of everything that I have stated, and in

3 view of specific elements required for particular offences, including

4 elements for individual criminal responsibility, pursuant to Articles 7(1)

5 and 7(3), it is the submission of the Defence that the Prosecution has

6 failed to prove the responsibility of the accused Mr. Kvocka, based on all

7 of the counts of the indictments. Therefore, we propose and we request

8 that this Trial Chamber acquit Mr. Kvocka of his responsibility, pursuant

9 to all of the charges pleaded in the indictment. He never planned,

10 instigated, ordered, committed, or otherwise aided and abetted, and the

11 Prosecution themselves claim that he did not personally participate in the

12 charges. He is not responsible for what he has been charged with in this

13 indictment. Thank you.

14 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Simic.

15 I think that it wouldn't be very wise to begin the closing

16 argument of the Kos Defence before our usual lunch break. Perhaps we

17 could have a lunch break now, and then, Mr. Nikolic, you could perhaps

18 begin after the break. Or do you wish to proceed right now?

19 MR. NIKOLIC: [Interpretation] Your Honour, as you have just

20 suggested. Thank you.

21 JUDGE RODRIGUES: [Interpretation] Very well. Thank you. We will

22 now have a lunch break. One hour, a one-hour lunch break so that we can

23 also digest the food a little after the lunch. One hour.

24 --- Recess taken at 12.35 p.m.

25 --- On resuming at 1.35 p.m.

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1 [Kos Defence Closing Statement]

2 JUDGE RODRIGUES: [Interpretation] Please be seated.

3 We're going to continue our proceedings and I'm going to give the

4 floor to Mr. Nikolic or the Defence team. I see Mr. O'Sullivan on his

5 feet for the closing statement of the Defence case of the accused,

6 Mr. Kos.

7 MR. O'SULLIVAN: Good afternoon, Mr. President, Judge Riad, Judge

8 Wald. Your Honours, we have filed our final written submissions with the

9 Chamber in which we set out the legal and factual submissions in relation

10 to our client, Mr. Kos.

11 We rely entirely on that 152-page submission, and let me state

12 clearly our position from the outset. Milojica Kos is not guilty of any

13 of the charges contained in the indictment, and you should acquit him of

14 all charges. It is not my intention to recite or review our written

15 submissions here today. They were drafted with the intention of being

16 complete in order to assist you in your deliberations. My oral

17 submissions have two objectives: To emphasise certain aspects of our

18 written submissions, and to respond to the Prosecution's written and oral

19 submissions.

20 Let me begin with the issue of superior responsibility. Kos is

21 not guilty of being a superior under Article 7(3). We have set out our

22 legal and factual submissions in parts D, E, F, and G of our final written

23 brief. Both as a matter of law and fact, Kos is not guilty under Article

24 7(3).

25 As for the law, in the Celebici appeal, the Appeals Chamber has

1 reiterated authoritatively that the threshold question under Article 7(3)

2 is proof beyond a reasonable doubt that the accused was in a

3 superior/subordinate relationship with the alleged perpetrators of the

4 underlying offences. It must be proven that the accused had effective

5 control over those who are alleged to be his subordinates.

6 In the words of the Celebici Appeals Chamber:

7 "The doctrine of command responsibility is ultimately

8 predicated upon the superior to control the acts of his

9 subordinates."

10 The Appeals Chamber added:

11 "Great care must be taken lest an injustice be committed

12 in holding individuals responsible for the acts of others

13 in situation with the link of control is absent or too

14 remote."

15 The Appeals Chamber held:

16 "It is necessary that the superior have effective control

17 over the persons committing the underlying violations in

18 the sense of having the material ability to prevent and

19 punish the commission of those offences."

20 We say that in these proceedings, the Prosecution has failed to

21 prove beyond a reasonable doubt the superior/subordinate relationship in

22 relation to Kos. The evidence shows Kos had no subordinates. He had no

23 effective control over anyone in the sense of having the material ability

24 to order and punish.

25 What does the evidence in this case tell us? In 1981, at the age

1 of 18, Kos completed secondary school for catering. In 1982 and 1983 when

2 Kos did his military duty, his compulsory military duty, he was a cook in

3 the army. All his adult life until the outbreak of war in Bosnia and

4 Herzegovina, he was a waiter.

5 On May 6th, 1992, Kos was mobilised. He became a reserve

6 policeman at the Omarska Police Station Department. He had never had any

7 training or experience in the police or with police work.

8 Three weeks later, when the Omarska Investigation Centre opened,

9 Kos became a guard. He was a newly-recruited, untrained reserve policeman

10 with no prior experience working in the police. Contrary to the

11 allegations made by the Prosecution, Kos was not called to full-time

12 duty. He was not a policeman when he worked in Omarska.

13 In both our written and oral submissions, the Prosecution is wrong

14 when they continuously repeat that Kos was a policeman. Indeed, the

15 evidence shows that Kos completed his first police training course for

16 junior policemen in 1993. This six-month course was the first step in

17 becoming an active-duty policeman which required yet further training.

18 This can hardly be considered as continued advancement in the

19 police as the Prosecution would characterise it. Kos stopped being a

20 reserve policeman on 8 November 1992. He and the other reservists who

21 have testified here, and I'm thinking of Milan Babic, Zeljko Srdic, they

22 responded to an advertisement in the newspaper when they went for their

23 training course in Banja Luka in 1993. One of the fellow students at the

24 training course said that Kos preferred being a waiter more than being a

25 policeman. His instructor, Zelimir Skrbic, testified that Kos was an

1 average student who demonstrated no leadership qualities.

2 Yesterday, during oral argument, the Prosecution suggested that

3 Skrbic was not worthy of belief. They allege that he was propelled in his

4 career by contacts, and that somehow he was involved in wrong-doing during

5 the war. Well, these issues were put to Skrbic during cross-examination

6 by the Prosecution. On the question of his career, Skrbic clearly stated

7 that he achieved the rank of deputy commander through his own work and not

8 through despotism. That's in the transcript at 8595. Skrbic also denied

9 during cross-examination that he was involved in any wrong-doing during

10 the war. In fact, Exhibits D8/2 to D8/11 are certificates issued to

11 Skrbic from international seminars organised by the governments of the

12 United States of America and Sweden. I add that today Skrbic is a

13 professor at the Police Academy in Banja Luka who works with the IPTF and

14 SFOR. Your Honours can rely on his evidence.

15 In relation to Kos and the issue of superior responsibility, the

16 Trial Chamber has heard the evidence of four witnesses who worked with Kos

17 at the Omarska Investigations Centre: Miroslav Kvocka, Dragan Popovic,

18 Milan Jasnic, and Witness DE1. All four of these witnesses testified from

19 personal knowledge regarding the fact that Kos was a newly recruited,

20 untrained reserve policeman. They said he was not a superior at Omarska.

21 He could not and did not issue orders. He had no subordinates.

22 [redacted]

23 [redacted]. They certainly knew the command structure under which

24 they worked. They all stated categorically that Kos was not their

25 commander. Miroslav Kvocka was an experienced active-duty policeman at

1 the Omarska Police Station Department. He was familiar with the command

2 structure both at the police department and at Omarska. He, too,

3 testified unequivocally that Kos had no superior authority at the Omarska

4 Investigations Centre. These four witnesses were not challenged on

5 cross-examination in relation to this testimony concerning Kos. All four

6 of them gave credible, firsthand testimony.

7 Your Honours, shortly after becoming a guard at Omarska, Kos was

8 given a specific and limited task by his commander, Zeljko Meakic. Meakic

9 assigned the following tasks to Kos: to man a telephone and radio station;

10 to note down whether or not members of a shift reported to work; to be a

11 liaison between Meakic and guards; to locate Meakic when he was absent

12 from Omarska; and if Meakic could not be located, Kos was obliged to

13 contact his superiors. Kos had none of the attributes of a superior under

14 Article 7(3). He had no subordinates over whom he had any material

15 ability to issue orders or to effect punishment.

16 When cross-examined by the Prosecution, Miroslav Kvocka explained

17 that Meakic knew that Kos was a waiter, with no previous experience or

18 training in the police. As acknowledged by the Prosecution at paragraph

19 142 of its written brief, Meakic transferred nearly the entire staff of

20 the police department to the investigations centre when he was ordered to

21 do so by Simo Drljaca. Meakic was the commander of that police

22 department. There were no other commanders or superiors in that

23 department; there were no deputies, assistants, or shift leaders.

24 Meakic created three guard shifts. Each shift had approximately

25 20 men on it, the same number of men Meakic would have on duty at any one

1 time at the police department under the sole command of Zeljko Meakic. At

2 most, Your Honours, we say that the specific and limited tasks given to

3 Kos by Meakic were commensurate with those of a duty officer. This

4 function existed in the Omarska Police Department. This function

5 conferred no authority on the person who fulfilled it.

6 Furthermore, the evidence in this case is that a newly recruited

7 reserve policeman would not be authorised to work in the police without

8 supervision. He could certainly not be in a position of superior

9 authority. You have heard that reservists worked under the supervision of

10 active-duty policemen. The latter had an obligation to guide and help the

11 reservist, to provide suggestions and advice to him.

12 Your Honours, as a matter of practical and common sense, Kos could

13 not have been a superior under Article 7(3) at Omarska. He was not

14 competent to assume or exercise command or superior function. He had

15 never had any contact with the police; he knew nothing about police work.

16 In our written submissions, we go beyond the evidence of the

17 witnesses who worked with Kos, who have firsthand knowledge about the fact

18 that he was not a superior. In addition, the testimony of both fact and

19 expert witnesses support the conclusion that Kos would not be given a

20 command or superior function based on the existing command structure of

21 the department and the complete inexperience of Kos in police affairs.

22 These witnesses include Milutin Bujic, a former commander of the Omarska

23 Police Station Department in April 1992; Bogdan Delic, the former chief of

24 the Prijedor Public Security Station; Zelimir Skrbic, a career policeman

25 and professor at the Police Academy in Banja Luka; and Dr. Dusan Lakcevic,

1 an expert on the structure and function of the police force.

2 The Prosecution relies entirely on certain impressions of some,

3 but certainly not all detainees in asking you to find Kos guilty as a

4 superior. No detainee had any personal knowledge regarding the duties

5 that Zeljko Meakic assigned to Kos shortly after he began working at

6 Omarska. Detainees observed there were three shifts that worked for 12

7 hours on and were off for 24 hours.

8 What were some detainees able to observe about Kos? He was seen

9 by some in an office upstairs in the administration building. He did not

10 have a permanent guard post by a building. He was seen moving about the

11 compound. He was seen, from time to time, by some detainees at shift

12 change. Detainees designated the three shifts as Kos's shift, Radic's

13 shift, and Gruban's shift, but the only material issue of importance is

14 whether Kos was a superior under Article 7(3). And yet despite the

15 impressions of some concerning Kos, the observations and impressions given

16 by detainees about him are far from universal.

17 Five of the 11 female detainees who testified here did not mention

18 Kos at all. These are the same women who were in the restaurant during

19 the day and could observe the pista. These are the women who, in the

20 evening, are upstairs in the administration building across from the room

21 where Kos was assigned. For nearly half the women who testified here, Kos

22 was an insignificant inconspicuous person.

23 Likewise, 11 male detainees did not mention Kos during their

24 testimony. Emir Beganovic, Witness Y, Witness J, believed Kos was a

25 simple guard. Other detainees thought that people other than Kos were

1 leaders. Witness T thought Rade Ritan was a leader. Witness R, who did

2 not mention Kos, said that she believed that twin brothers named Milenko

3 and Miroslav were in charge.

4 Some former detainees identified Mico Hvracanin, Rajko Marmat, and

5 Neso Janjic as leaders. Other individuals who were in Omarska on a daily

6 if not regular basis either did not mention Kos or when asked said they

7 did not know who he was. These people include Gostimir Modic, an

8 investigator for the first five days of Omarska, Mirko Jesic, the head of

9 the investigators from the Public Security Service; the two typists who

10 worked in the same room said nothing about Kos. Ljuban Andzic, a

11 paramedic who visited Omarska on a regular basis was in a similar

12 situation as was Cedo Veluta, the maintenance man; and Vinka Andzic, the

13 cleaning lady.

14 Clearly, Your Honours, the Prosecution is wrong is alleging over

15 and over in their submissions that Kos was a policeman of considerable

16 prominence with tremendous influence and responsibility, a person who

17 exercised unbridled power. Kos was none of these things as demonstrated

18 through the evidence of both Prosecution and Defence witnesses.

19 The totality of the evidence given by those with no firsthand

20 knowledge about the command structure of the guards from the Omarska

21 Police Station Department can be summarised in this way: This evidence is

22 given on the basis of uninformed impressions and for that reason, is

23 nothing more than unreliable speculation. This becomes patently clear

24 when the impressions of those who are not familiar with the police is

25 contrasted with the evidence of those with firsthand knowledge, those who

1 are familiar with the actual functioning of the police at Omarska.

2 Your Honours, the best evidence, and the only evidence the Trial

3 Chamber should rely upon in determining the guilt or innocence of Milojica

4 Kos under Article 7(3) is that given by witnesses with personal knowledge

5 of his actual functions at Omarska. This evidence is entirely consistent

6 with evidence of fact and expert witnesses who are familiar with the

7 duties which can and should be given to an untrained, newly-recruited

8 reserve policeman within the police structure. This evidence must be

9 viewed in the light of Kos's personal background and his inexperience in

10 police work.

11 When this is done, we submit that the only conclusion you can

12 reach is that Kos is not guilty under Article 7(3). To repeat the words

13 of the Celebici Appeals Chamber:

14 "Great care must be taken lest an injustice be committed

15 in holding individuals responsible for the acts of others

16 in situations where the link of control is absent or too

17 remote."

18 Kos is not guilty under Article 7(3). He had no subordinates over

19 whom he had effective control in the sense of having the material ability

20 to issue orders or punish.

21 I would now like to address you in relation to several specific

22 incidents for which the Prosecution maintains that Kos is responsible.

23 Murder: Kos is not guilty of murder as is alleged in the indictment. Kos

24 is not murder the man named Crnalic. Our submissions in relation to this

25 event are found at pages 84 to 88 of our final brief.

1 The Prosecution relies entirely on the evidence of Witness AI.

2 Witness AI was mistaken when he testified that Kos was the man who shot

3 Crnalic. The Prosecution's submissions completely ignore the evidence of

4 their own witnesses, Nusret Sivac, Kerim Mesanovic, and Witness R from the

5 Tadic case who all testified that someone other than Kos shot Crnalic.

6 Kos was previously unknown to Witness AI before the war. Witness

7 AI identified the person who allegedly shot Crnalic as someone who was not

8 from the Prijedor municipality based on his colouring and the way in which

9 he spoke. There can be no dispute that Kos was born and raised in the

10 Prijedor municipality.

11 The person Witness AI believes allegedly shot Crnalic was not

12 Kos. Furthermore, Witness AI is an unreliable witness because of his

13 physical and mental condition. He was severely beaten on numerous

14 occasions by a guard named Drazenko Predojevic on the pista. Predojevic

15 knocked Witness AI's teeth out which prevented him from eating and

16 drinking adequately. From the pista, Witness AI was taken to the hangar

17 where he lost consciousness. He was he was then moved to Mujo's room

18 where a doctor administered a drip transfusion into his arm.

19 Witness AI admits that he suffers from psychological problems and

20 trauma. He admits that in relation to details concerning the guard

21 Predojevic, things got mixed up in his memory. We say it is noteworthy

22 that Witness AI was not shown a picture of Predojevic and asked to

23 identify him. That's Exhibit 3/69B.

24 The Prosecution clearly knows who Predojevic is. They indicted

25 him in the original Omarska indictment. We say that Witness AI's ability

1 to provide evidence is weak and unreliable.

2 Furthermore, at one point in his testimony, Witness AI stated that

3 he was on the pista for the first month of his detention. He also

4 testified that the alleged shooting occurred after one month, or one month

5 after his arrival. If that is so, he could not have been an eye witness

6 to it.

7 Your Honours, as a matter of law on the issue of identification

8 evidence, the Trial Chamber in Kunarac, in the judgement, made the

9 following observation at paragraph 561, and I'll briefly quote that.

10 "It is insufficient that the evidence of identification

11 given by the witness has been honestly given. The true

12 issue in relation to identification evidence is not

13 whether it has been honestly given but rather whether it

14 is reliable. In the turbulent and often traumatising

15 circumstances in which these witnesses found themselves,

16 the Trial Chamber is acutely aware of the possibility of

17 error in making an identification later of a person

18 previously unknown to the witness."

19 Witness AI believes he saw Kos shoot Crnalic. Witness AI is

20 wrong. Kos is not responsible. The fact that Kos did not shoot Crnalic

21 is borne out through the evidence of three witnesses: Nusret Sivac, Kerim

22 Mesanovic, and Witness R from the Tadic trial. Nusret Sivac testified

23 that a guard who wore a hood and manned the guard position between the

24 "white house" and the pista shot Crnalic. The person described by Sivac

25 is not Kos. Witness R from Tadic testified that Crnalic was shot by a man

1 named Mladjo. Clearly this is not Kos. Kerim Mesanovic testified that

2 when Crnalic was shot, Kos was sitting at a table, underneath an awning,

3 in the direction of the "white house." Mesanovic did not say that Kos had

4 a rifle and that he fired any shots. He did testify that he believed that

5 more than one person fired.

6 In this regard, as a matter of law, the Appeals Chamber in

7 Celebici ruled that it is the obligation of the Prosecution to ensure that

8 its vital evidence is clear and unambiguous. An accused person should not

9 be convicted upon the basis of a verbal ambiguity in that vital evidence.

10 The Appeals Chamber wrote as follows as paragraph 452, and I quote:

11 "Where a Prosecution witness, whose evidence is vital,

12 is able to clarify any ambiguity in that evidence, and

13 where the Prosecution does not seek to have the witness

14 do so, the inference is available that it did not do so

15 because the evidence would not have assisted the

16 Prosecution case. That is not to say that such an

17 inference ought always to be drawn against the

18 Prosecution. But its mere availability tends to render

19 unsafe any resolution of the ambiguity in favour of the

20 Prosecution."

21 Kerim Mesanovic testified that more than one guard allegedly

22 opened fire. He also testified that Kos was sitting at a table. No where

23 in his testimony did Mesanovic state that Kos had a weapon or that he

24 fired it. The conclusion that Kos did not have a gun or fire is supported

25 by the testimony of Nusret Sivac and Witness R in Tadic. They identified

1 individuals other than Kos who shot, and this testimony contradicts the

2 mistaken and unreliable evidence of Witness AI.

3 Your Honours, the totality of this evidence fails to prove beyond

4 reasonable doubt that Kos is the individual who allegedly shot Crnalic,

5 and Kos should be acquitted of this charge.

6 Let me turn to the alleged murders of Abdulah Puskar and Silvije

7 Saric. Our written submissions on this matter are found at pages 88 to

8 90.

9 Witness J and Witness B have testified in relation to an alleged

10 beating of Puskar and Saric. This event occurred upstairs in the

11 administration building one night. Neither Witness J nor Witness B were

12 eyewitnesses. We say the evidence in this case shows that Kos was not

13 involved in this beating.

14 Witness B did not mention Kos at all during her testimony in

15 relation to this event. Witness J, during her testimony, adopted a

16 statement she gave to the Prosecution in 1995. She said the statement was

17 truthful, voluntary, and her best recollection of events. In that

18 statement, Witness J said that Puskar and Saric were called upstairs by a

19 guard named Marmat around 11.00 p.m. Witness J never stated that Kos was

20 present at that time. Witness J had seen Kos earlier that evening, around

21 7.00 or 8.00 p.m. According to this version of events, Kos was not

22 present when Puskar and Saric were beaten some three or four hours later,

23 at around 11.00 p.m., upstairs in the administration building.

24 Now, this evidence conflicts with Witness J's claim that she heard

25 Kos shouting upstairs during this alleged event. We say she was not

1 credible when she says that in her 1995 statement, which was given closer

2 in time to the event, and, according to Witness J, it is truthful.

3 Furthermore, there is no proof that Witness J could recognise Kos's voice

4 when he's shouting or otherwise. Your Honours have heard evidence that

5 Kos is not a loud person. Witnesses who knew him describe him as a quiet,

6 level-headed, withdrawn person. Witness J did not identify Kos in court.

7 Finally, Ermin Strikovic testified that when Puskar and Saric were

8 taken to the administration building about 11.00 that night, Kos was not

9 on duty.

10 The totality of this evidence, we say, fails to prove beyond

11 reasonable doubt that Kos was in any way involved in the alleged beating

12 or deaths of Puskar and Saric. He should be acquitted of this charge.

13 Money in the restaurant. Your Honours, contrary to the

14 allegations set out in paragraphs 279 and 280 of the Prosecutor's brief,

15 Kos never demanded money of detainees in the restaurant after Mehmedalija

16 Nasic was shot by Popovic. Kos was not present following the shooting of

17 Nasic, and he never requested money from detainees. Nasic was shot by

18 Dragan Popovic, also known as Pavlic. Popovic testified in these

19 proceedings and described the event.

20 Now, four detainees were present in the restaurant that night, all

21 of whom testified: Omer Mesan, Azedin Oklopcic, Mirsad Alisic, and Jasmir

22 Okic. We say that the details given by Mesan about the shooting and Kos

23 are inconsistent with all the other witnesses, and Mesan is not worthy of

24 belief.

25 What did Mesan say? He said that prior to the shooting, a man was

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1 being beaten while sitting on a bench outside the restaurant. After the

2 shooting, Mesan said that Kos told the detainees to collect 27 billion

3 dinars to pay for the window through which Popovic had shot. Mesan

4 testified that the money was collected and given to a guard named Jokic,

5 and that half an hour later, Jokic returned the money and that the

6 detainees applauded when the money was returned to them. Mesan says the

7 next morning, Kos and Jokic had a dispute about the money Jokic had

8 returned to the detainees.

9 We say there are many reasons why the account given by Mesan

10 should not be believed. During his testimony, Mesan stated that he knew

11 the man who was shot personally, and he agreed that anyone who witnessed

12 such a dramatic shooting would never forget it. But in a day-long

13 interview with the Prosecution in May 1998, he never mentioned the

14 shooting, he never mentioned Kos asking for money, money being collected

15 or returned, or a dispute between Kos and Jokic.

16 Now, Mesan acknowledged that he spoke freely and voluntarily with

17 the Prosecution and he described events to the best of his recollection.

18 Mesan gave no plausible explanation of why he failed to mention the

19 shooting and the other events when he met with the Prosecution in 1998.

20 He simply tried to brush it aside by saying that the OTP investigators had

21 to leave and he had things to do.

22 We say there's a reason why Mesan never mentioned these events to

23 investigators in May 1998. He never witnessed it and he lied when he said

24 that he did.

25 Why do we say Mesan was untruthful? Well, first, Popovic

1 testified that he was alone outside the restaurant when he fired through

2 the window. He stated that he was alone because the guard Jokic had gone

3 home. Jokic was not on the premises; he could not have collected and

4 returned the money. The Prosecution acknowledges this at paragraph 21 of

5 its brief where it accepts that Jokic was known for leaving his guard post

6 without authorisation.

7 And what of the other three detainees who testified here? They

8 give very different accounts than Mesan. Not one of them mentioned Kos

9 being present before, during, or after the event. They did not mention

10 someone being beaten on a bench outside the restaurant prior to the

11 shooting. They did not state that Kos or anyone else asked for 27 billion

12 dinars, or that money was collected and returned. They did not testify

13 that Jokic and Kos had any sort of dispute the next morning. As for some,

14 when addressing the detainees in the restaurant after the shooting, as

15 Edin Oklopcic testified, that Zeljko Meakic was present and he spoke to

16 them in an angry and arrogant manner.

17 Now, this is consistent with what Popovic told you. He testified

18 that Meakic, his commander and superior, was summoned to Omarska after the

19 shooting. Meakic arrived and took control of the situation. He took the

20 gun away from Popovic. He took him out of Omarska. He told Popovic to

21 report to the investigators in Prijedor the following day to give a

22 statement.

23 We say the account of the events given by Omer Mesan is untrue.

24 He could not explain why he didn't mention this event in 1998 after having

25 acknowledged that no one could ever forget such a thing. The details he

1 gives, Mesan gives, are inconsistent with the other eyewitnesses. The

2 other eyewitnesses never mention Kos, Jokic, money, dispute, someone being

3 beaten outside the restaurant.

4 Popovic told you that Jokic was not there, he had gone home. So

5 contrary to the allegations in the Prosecution brief, Kos is not guilty of

6 an act of harassment, psychological abuse by asking for 27 billion dinars

7 from detainees to repair a window. It did not happen, and Omer Mesan lied

8 when he said it did. Kos should be acquitted of this charge.

9 Emir Beganovic. Kos was not a part of a group which attempted to

10 extort money from Emir Beganovic. We say he is not credible when he

11 testified that Kos was present on two occasions when a person named Brk

12 attempted to extort money from him. There is no evidence that Beganovic

13 knew Kos before the war. He did not identify Kos in court.

14 Exhibit D1/2 is a statement that Beganovic gave to the Prosecution

15 over a four-day period in 1995. He describes the attempted extortion by

16 Brk and does not implicate Kos. Beganovic says it's a freely-given

17 statement that contains his best recollection of events at Omarska. In

18 this statement, he never mentions Kos at all.

19 Beganovic testified in Tadic at trial. He never mentioned Kos in

20 those proceedings. We say Kos was not implicated in this extortion

21 attempt. We also say that Beganovic is lacking in credibility. He

22 attempted to mislead counsel and deceive the Trial Chamber in relation to

23 his past criminal convictions.

24 Beganovic told counsel and the Presiding Judge that he had no

25 criminal record and that people who said that he did were making things up

1 about him. However, when pressed, he admitted to a lengthy criminal

2 record. On one occasion, he served 8 months in gaol and was given two

3 years probation for pickpocketing. He served another gaol term for

4 pickpocketing. He was fined for concealing and handling stolen goods. He

5 was convicted of bribing an official.

6 Your Honour, there was no reason for Beganovic to mislead anyone

7 about his past, to say that people were inventing stories about him. He

8 did so because he is a dishonest person. He did not tell the truth when

9 he attempted to implicate Kos in the attempted extortion by Brk. We

10 submit Kos should be acquitted of this charge.

11 Muhamed Cehajic. We say Kos was not involved in the extortion of

12 money from Muhamed Cehajic. Your Honours heard from two witnesses who

13 were present in the garage and described the extortion of money from

14 Cehajic. They were Nusret Sivac and Sabit Murcehajic. Sivac did not

15 mention Kos in relation to this event. He said that Cehajic had money

16 taken from him by guards who worked on a shift which was known as Ckalja's

17 shift.

18 Sivac named Zeljko Marmat, known as Zuti, as the guard who called

19 Cehajic out of the garage on that occasion. Sabit Murcehajic described

20 the same event as Nusret Sivac, but he did not personally see what

21 happened or know who was present. Murcehajic had no personal knowledge

22 whether Kos was present or involved. He was told that Kos was present

23 among the guards outside, but there is no proof that the person who told

24 him Kos was present even knew Kos.

25 As I said, Sivac and Murcehajic describe the same events in their

1 testimony. They are they were both in the garage with Cehajic at the same

2 time. They both testified that Dr. Osman Mahmuljin gave the money to

3 Cehajic, and this was the only time that Dr. Mahmuljin actually gave money

4 to Cehajic.

5 The difference in this testimony is that Sivac is testifying from

6 direct knowledge, and Murcehajic gave a secondhand, hearsay account. As a

7 matter of law, we rely on an Appeals Chamber decision, the decision on

8 appeal regarding a statement of a deceased person in the Kordic case. We

9 say that that case stands for the proposition that a person can not be

10 convicted on the basis of hearsay where that hearsay evidence is the only

11 evidence implicating the accused. Hearsay evidence, by it's very nature,

12 is unreliable and cannot be scrutinised through cross-examination.

13 In this case, the hearsay evidence of Sabit Murcehajic regarding

14 Kos not only uncorroborated, it is contradicted by the direct evidence of

15 Nusret Sivac. The Prosecution has failed to prove beyond a reasonable

16 doubt that Kos was present when money was extorted from Cehajic, and he

17 should be acquitted of that charge.

18 Witness AV who was ordered to slap someone by Kos. Your Honours,

19 these submissions by the Prosecution completely ignore the totality of the

20 evidence given by Witness AV. We say there can be no dispute that Witness

21 AV lied to the Trial Chamber in relation to Kos. He clearly stated to

22 Judge Wald that there was a time when Kos ordered him to slap another

23 prisoner. When pressed on cross-examination, Witness AV admitted that Kos

24 never ordered him to slap anyone.

25 That is the evidence in this case. It didn't happen. There's no

1 basis for saying that Kos humiliated or harassed or psychologically abused

2 Witness AV and the other detainee. He did not order this man to slap

3 another person and he should be acquitted of this charge.

4 Nusret Sivac. Kos did not mistreat Nusret Sivac when he was

5 brought to Omarska on the 10th of June, and Kos did not take money from

6 Safet Ramadanovic. Sivac was mistreated on his arrival by members of a

7 special police unit from Banja Luka in the presence of their commander.

8 Your Honours have heard evidence that this unit was in Omarska for the

9 first 15 or 20 days. Kos did not participate in this mistreatment. The

10 members of the police unit from Banja Luka did and, at one point, their

11 commander ordered them to stop the mistreatment.

12 We analyse this in full at pages 110 and 111 of our final

13 submission. We also say there's conflicting evidence whether Kos

14 participated in or was present when detainees were hit when entering the

15 restaurant. The Prosecution points to Witness AQ who testified that Kos

16 was present when guards hit detainees going into the restaurant. Of

17 course, Witness AQ also testified that he kept personal notes of the most

18 important things that happened to him during his time at Omarska.

19 Witness AQ claims he knew Kos before the war. His contemporaneous

20 notes contain no mention of Kos at all or any mistreatment by him. There

21 is also substantial evidence from other witnesses, detainees who testify

22 that Kos never mistreated anyone. Jasmin Okic spent one month on the

23 pista and he testified that Kos was never present when anyone was

24 mistreated. Abdulah Brkic spent 28 days on the pista. He never saw Kos

25 beat anyone. Kerim Mesanovic was detained in the "glass house." He did

1 not see Kos present during any beatings. Mirsad Kugic was able to look

2 Kos in the eye in this courtroom and say, "He gave me food. He did not

3 beat me. He never mistreated me."

4 Witness Y told the Prosecution twice during his direct examination

5 that Kos was the only person who inquired about his injuries. Sabit

6 Murcehajic said that Kos and other guards intervened one time when a

7 drunken outsider came on the premises and shot a man. Murcehajic also

8 said he never saw Kos present when any beatings occurred.

9 I have mentioned the 5 of 11 female detainees who had nothing to

10 say about Kos at all. Not one of the female detainees mentioned that they

11 saw Kos beating someone or involved in beating on the pista, at the

12 restaurant. All of these witnesses were in a position to see Kos, and

13 they testified that he never hit anyone or was present when detainees were

14 hit.

15 Kos intervened when a man from the outside came in. He asked

16 Witness Y about his injuries. He helped Mirsad Kugic. We submit that Kos

17 did not mistreat people.

18 Let me briefly turn to Article 5 of the Statute. We submit that

19 Kos did not have the requisite mens rea to commit crimes against humanity

20 or persecution. We have already said he did not commit any actus reus.

21 As for mens rea, all crimes against humanity including persecution

22 require two forms of mens rea: Specific intent to commit the act, and the

23 general intent to commit a crime against humanity which is knowledge of

24 the context of a widespread or systematic attack against a civilian

25 population.

1 The crime of persecution requires a third element of mens rea:

2 Discriminatory intent. We say that Kos did not possess any of these forms

3 of mens rea. It's subtle law that discriminatory intent is an

4 indispensable legal ingredient of the crime of persecution.

5 Recently, in the Kordic and Cerkez judgement, the Trial Chamber

6 described discriminatory intent as a heightened mens rea which

7 distinguishes persecution from other crimes against humanity.

8 At paragraphs 211 to 220 of the Kordic judgement, the Trial

9 Chamber defined the appropriate mens rea for persecution. The Chamber

10 held:

11 "It must be proven beyond reasonable doubt that the

12 accused shared the discriminatory policy of singling out

13 and attacking certain individuals with the aim of

14 removing them from society in which they live, or even

15 from humanity itself."

16 The Kordic Trial Chamber reasoned that this heightened form of

17 mens rea preserves this distinction between persecution and other crimes

18 against humanity.

19 Discriminatory intent of the accused is a subjective element which

20 must be proved in each case. As the Trial Chamber pointed out, guilt by

21 association is not permitted under the Statute, and it would be contrary

22 to the driving principles of individual responsibility behind the creation

23 of this Tribunal.

24 We say that Kos did not manifest any discriminatory feelings or

25 intent. You have heard evidence that both before and during the war, Kos

1 did not display ethnic hatred or interest in politics. Growing up, he

2 socialised with members of all ethnic groups, and everyone was welcome

3 into his home. Kos was not a member of any political party. In 1993 his

4 fellow students at the police training course in Banja Luka testified that

5 Kos never expressed any opinion about ethnic groups, nor did he show signs

6 of ethnic hatred or intolerance. We have already indicated a number of

7 detainees who spoke about Kos's positive conduct. Such conduct does not

8 reflect discrimination or discriminatory intent.

9 What was Kos's state of mind at the relevant period? We say

10 this: He knew a civil war had broken out in Bosnia and Herzegovina; he

11 knew that a change of power had occurred in Prijedor; he knew that there

12 was fighting in the region in May; he was not a member of a political

13 party; he was not involved or interested in politics; he was mobilised on

14 May 6th and had become a reserve policeman; he was assigned as a guard at

15 Omarska. You've heard that the reservists were told by Zeljko Meakic that

16 their assignment would probably last 10 or 15 days, the time necessary for

17 the competent authorities to conduct their investigations.

18 We submit that the issue of mens rea for both crimes against

19 humanity and persecution must be looked at from Kos's perspective at the

20 relevant time. Events for him personally were unfolding rapidly and with

21 uncertainty. We say it has not been proven beyond a reasonable doubt that

22 Kos was aware of a widespread and systematic attack against civilians, nor

23 has it been proven that Kos manifested any discriminatory intent against

24 detainees.

25 Let me briefly turn to common purpose. In regards to the theory

1 of common purpose, we can look to these factors I just mentioned and other

2 factors to show that Kos was not part of any common purpose or joint

3 criminal enterprise. Again, central to the issue of common purpose is

4 proof beyond reasonable doubt that at the relevant time Kos shared a state

5 of mind with others to be a part of a joint criminal enterprise. We say

6 he was not part of any plan, design, or purpose that was criminal.

7 The Prosecution is alleging that there was a secret plan in 1991

8 that was being devised by the authorities in Prijedor. Well, if such a

9 plan was being devised and it was secret, it's difficult to see how Kos

10 could have been a part of it. Indeed, you've heard that in 1991, Kos and

11 his sister were working in a restaurant in Blace, some 700 kilometres from

12 Prijedor.

13 There's no proof that Kos was privy to any documents presented by

14 the Prosecution in this case. In fact, we say there can be no serious

15 suggestion that he was privy to any such information. Kos had completed

16 secondary school, but he was not a sophisticated, educated man. He did

17 not belong to any political party, and he was not involved or interested

18 in politics.

19 While working at Omarska, Kos had no connection with those who had

20 the power and ability to arrest, detain, or release individuals. He had

21 no connection with any other institution at Omarska which was responsible

22 for food, medicine, or other conditions at Omarska.

23 In this regard, the Prosecution lays great credence on its claim

24 that Kos was a policeman and a superior authority. The facts show he was

25 neither. Accordingly, there is no proof that Kos was a part of any joint

1 criminal enterprise.

2 As I said at the outset, I will not review all the submissions we

3 made in writing to the Chamber on June 29th. Indeed, it would serve

4 little purpose to submit 152 pages for your consideration and then stand

5 here for three hours and talk about it.

6 I simply wish to conclude by saying that in our submission and in

7 all respects, the Prosecution has failed to prove beyond reasonable doubt

8 any of the charges made against Milojica Kos in the indictment. He was

9 not a superior under 7(3). He did not commit, instigate, plan, order, or

10 otherwise aid and abet the commission of any alleged offence under Article

11 7(1). He was not a part of any joint criminal enterprise under Article

12 7(1).

13 Allow me to conclude by repeating a formulation of the expression

14 "proof beyond reasonable doubt" adopted by another Trial Chamber at this

15 Tribunal. I quote:

16 "If the evidence is so strong against a man as to leave

17 only a remote possibility in his favour which can be

18 dismissed with the sentence, 'of course it is possible

19 but not in the least probable,' the case is proved beyond

20 reasonable doubt. But nothing short of that will

21 suffice."

22 We say that in these proceedings, when the totality of the

23 evidence is considered, the Prosecution has not met the burden of proving

24 its case against Milojica Kos beyond reasonable doubt, and you should

25 acquit Kos of all charges.

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1 Those are my submissions.

2 JUDGE RODRIGUES: [Interpretation] Thank you very much,

3 Mr. O'Sullivan.

4 It seems that we have, therefore, completed the closing arguments

5 on behalf of the accused Mr. Kos. We have approached the hour at which we

6 usually adjourn for the day. I don't think there's any point in

7 commencing our next Defence team. We will come back tomorrow to begin the

8 defence of Mr. Radic. I'm not going to ask Mr. Fila if he is ready or

9 not. I can see that he is ready. But he will begin, of course,

10 tomorrow. We will come back and reconvene tomorrow morning.

11 --- Whereupon the hearing adjourned at 2.48 p.m.,

12 to be reconvened on Wednesday, the 18th day of July,

13 2001, at 9.20 a.m.

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