1 Friday, 26 March 2004
2 [Appeal hearing]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 9.31 a.m.
6 JUDGE SHAHABUDDEEN: Good morning. The sitting is resumed. We
7 are still in the case of the Prosecutor against Kvocka and others.
8 Madam Registrar, will you please call the case for good order.
9 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honours.
10 This is case number IT-98-30/1-A, the Prosecutor versus Miroslav Kvocka,
11 Mladjo Radic, Zoran Zigic, and Dragoljub Prcac.
12 JUDGE SHAHABUDDEEN: And all members of the bar can hear me, I
13 take it. Yes. And all the appellants also can hear me, I take it. Yes,
14 I see them nodding.
15 And the appearances are as before, and we may now proceed. Today
16 is Friday. We have as our first item response by the Prosecution. 30
17 minutes, yes? Thank you.
18 MS. HOWICK: Good morning, Your Honours. Mr. President and Your
19 Honours, my name is Kelly Howick, and I will be presenting the
20 Prosecution's submissions on sentencing today.
21 As counsel for the appellants Prcac, Kvocka and Radic did not
22 directly address sentencing in their oral submissions, I will likewise
23 not address them today but will rely on the Prosecution's written
24 responses in our response brief.
25 I will, however, be happy to answer any questions at the end of
1 my time that you may have in regards to these sentences.
2 As the appellant Zigic's counsel did raise certain issues in
3 regards to sentencing, I will address his this morning.
4 First of all, I would like to reiterate the crimes that Zoran
5 Zigic has been convicted of. The appellant Zigic has been convicted for
6 his co-perpetration within the JCE that was Omarska. This includes not
7 only his criminal crimes but also the crimes that were committed in the
8 furtherance of the joint criminal enterprise. In addition to the crimes
9 committed at Omarska, the appellant Zigic also personally committed
10 crimes at the Keraterm camp and Trnopolje camp. The appellant Zigic's
11 crimes include four murders and 13 beatings which were so severe as to be
12 found by the Trial Chamber to equate to torture, cruel or inhumane
14 My colleague Mr. Re has described for you the severity of many of
15 the crimes that the appellant has committed personally, and I will be
16 using just a few of them to illustrate my points in response to
17 Mr. Stojanovic's submissions. However, it's clear from the Trial Chamber
18 that the gravity of these offences, the appropriate sentence in this case
19 was 25 years. The Trial Chamber found no mitigating factors and reviewed
20 the heinous gravity of the appellant's conduct in all three camps. And
21 it's with these grievous crimes that I will now turn to the sentencing,
22 the legal review of sentencing on appeal.
23 It is well established that in challenging a sentence on appeal,
24 the appellant must demonstrate an error in the Trial Chamber's exercise
25 of discretion.
1 THE INTERPRETER: Could the counsel please slow down for the
2 benefit of the interpreters.
3 MS. HOWICK: Yes. Sorry.
4 That the Trial Chamber erred in following the law, and also that
5 this error is discernible. The appellant must demonstrate that the Trial
6 Chamber went outside its discretionary framework in imposing the
8 I will first address issues raised by the appellant's oral
9 submissions. Second, I will address the effect if any that a possible
10 acquittal regarding that Drago Tokmadzic murder in Keraterm could have on
11 the sentence.
12 Counsel for the appellant Zigic raised four main issues with
13 regard to sentencing, the first being the amputation of the appellant's
14 left forefinger, partial amputation; second, the effect of his surrender
15 on sentencing; third, the alleged admissions and public display of
16 remorse that the appellant made in his statement before the Court; and
17 fourth, the Banovic plea and sentence.
18 At the outset I would like to point out that the first three
19 issues that the appellant raises were considered by the Trial Chamber.
20 They were fully briefed, they were fully argued by all parties, and they
21 were considered by the Trial Chamber.
22 In regards to the partial amputation of the appellant's left
23 forefinger, the appellant argues that the fact that his finger had been
24 partially amputated at the time of the offences was given inadequate
25 attention by the Trial Chamber. At trial, as on appeal, the appellant
1 mainly raises this issue as a factual matter as a defence to his ability
2 to perpetrate these crimes. This can be shown in the final trial brief
3 at paragraphs 273 to 274 and his appeal brief at paragraphs 412 to 419.
4 However, as I mentioned, this issue was clearly before the Trial
5 Chamber and was litigated fully. In fact, during the trial at one point
6 Judge Rodrigues asked Witness AE did it prevent him from beating other
7 prisoners the fact that he had a bandaged hand. Witness AE responded no,
8 by no means. He could use his other hand to beat people. This is at
9 transcript page 4327.
10 Numerous other victims noted in their testimony that Zigic's hand
11 was bandaged at the time that they were beaten and tortured by him.
12 These would be witnesses Ervin Ramic, Safet Taci, and Witness AD. As the
13 appellant has indeed been convicted of these beatings, tortures and
14 murders, the Trial Chamber clearly rejected the amputation of his left
15 forefinger as a factual matter or as a defence, a complete defence to
16 these beatings and tortures.
17 As mitigation, the Prosecution can see no effect that this
18 partial amputation of his finger could have on his sentence and indeed,
19 the Trial Chamber rejected this as a factual matter. And it cannot be
20 said that the Trial Chamber's failure to take this partial amputation
21 into consideration in sentencing has been a discernible error.
22 The appellant also claims on appeal, as at trial, that the Trial
23 Chamber did not consider his surrender as a voluntary surrender in terms
24 of mitigation of his sentence. He argues again that during the period
25 nobody was voluntarily surrendering and the Republika Srpska was not
1 extraditing persons to this Tribunal. The appellant raised these exact
2 same arguments at trial and it was fully addressed by both parties and
3 before the Chamber. The Trial Chamber noted in the judgement that in
4 1994, the appellant was convicted and sentenced to 15 years for murder in
5 Banja Luka. In 1998, while he was serving this sentence for murder, he
6 was surrendered to the Tribunal by the Republika Srpska authorities. The
7 Trial Chamber found that due to the fact that he was in prison at the
8 time of the surrender, it did not consider it as mitigation.
9 The appellant's arguments regarding whether or not he would have
10 been extradited by the Republika Srpska absent his concession to be
11 surrendered to the Tribunal is entirely speculative and moreover, the
12 Statute of this Tribunal under Article 29(2)(e) requires all signatories
13 and members to cooperate with the Tribunal and the transfer or surrender
14 of an accused to the Tribunal. The appellant Zigic was clearly in the
15 custody of the Republika Srpska. They knew where he was. They were
16 required to transfer him to the Tribunal. It is simply irrelevant
17 whether the appellant himself agreed with this transfer.
18 He also raises the fact that his murder case in Banja Luka was
19 still on appeal and, therefore, not finalised. However, this is
20 irrelevant to whether or not his surrender was voluntary.
21 In a similar case, in Naletelic and Martinovic, the accused known
22 as Stela was also serving a sentence for murder at the time of his
23 surrender to the Tribunal, and in that case the Trial Chamber found that
24 there was no mitigation of his sentence for his surrender. That's at the
25 Naletelic and Martinovic Trial Chamber judgement at paragraph 757 and
2 The appellant simply has not demonstrated that the Trial Chamber
3 made a discernible error in exercising its discretion in finding that his
4 surrender did not amount to a mitigation of his sentence.
5 The third point that the appellant raises is his alleged
6 admissions and public apology that he made in his statement pursuant to
7 Rule 84. During the trial the appellant did give a statement pursuant to
8 Rule 84 but pursuant to this Rule, of course, he was not examined by
9 either the Prosecution or the Trial Chamber on the content of the
10 statement. It is the Prosecution's submission that the appellant did not
11 make any statements which could be considered either admissions of his
12 conduct or confessions as such that would rise to the level of mitigation
13 of his sentence. The Trial Chamber clearly rejected the appellant's
14 versions of the numerous events that he mentioned in his statement.
15 I will summarise one of these supposed confessions that the
16 appellant made in his statement.
17 In relation to the victims Sead Car Jusufagic, the appellant
18 claimed in his statement that he only made Car run around with a
19 machine-gun and hit him once with his leg, and I quote from his
20 statement: "I kicked him and that's all I did to Car." The appellant
21 said then after kicking Car he left the camp, the Omarska camp, and went
22 to -- or Keraterm camp, excuse me, and went to a bar and did not learn of
23 what happened to Sead Jusufagic until he received the indictment. But
24 contrary to the appellant's statement, the Trial Chamber convicted the
25 appellant of the murder of Sead Jusufagic based on repeated and
1 successive brutal beatings of the victim, not just for a kick.
2 In the Prosecution's respectful submissions, the denial of crimes
3 cannot be considered a confession or an admission, and the Appeals
4 Chamber and the Trial Chamber should have and did not give any weight to
5 these alleged confessions. The Trial Chamber committed no error in
6 assigning this statement any weight in mitigation.
7 The appellant has also claimed that his statement -- that in his
8 statement he showed remorse for the victims. It is well settled in the
9 jurisprudence that a Trial Chamber must find remorse to be sincere in
10 order to consider it in mitigation. It is therefore within a Trial
11 Chamber's discretion to determine whether or not the Trial Chamber
12 believes that any expression of remorse is indeed sincere. The
13 Prosecution has noted that the appellant did not confess to any of these
14 crimes, to the crimes for which he had been charged and ultimately
15 convicted. Instead, he continued to downplay his role in any abuses that
16 he may have committed.
17 In fact, in his statement, the appellant said: "I express my
18 deep remorse and repentance to all who consider I wronged them in any way
19 during the war. But I consider I didn't. Although some of my gestures
20 may have pained them." This is at transcript page 9472.
21 While the Trial Chamber may not have expressly mentioned this
22 statement in the sentencing portion of the judgement, it is clear that
23 the Trial Chamber rejected the appellant's version of events and rejected
24 that his expressions of remorse were sincere. It was well within the
25 Trial Chamber's discretion to assign this statement no weight.
1 Finally, the appellant raised the issue of the Banovic plea and
2 sentencing. The appellant essentially argues that an eight-year sentence
3 that Banovic received for his plea agreement is in disparity with Zigic's
4 sentence of 25 years. The Prosecution would like to reiterate that the
5 Tribunal has no rigid sentencing scheme and many Trial and Appeals
6 Chambers have also noted that a comparison between sentences is often
7 misleading. More importantly, it has been noted that sentences as a
8 result of plea agreements are especially difficult to compare.
9 The appellant has not conceded the numerous distinguishing
10 factors between his case and that of the Banovic plea and sentencing.
11 First and most importantly, the scope of the criminality with which Mr.
12 Banovic pled to and what the appellant Zigic has been convicted of is
13 great, is greatly in disparity itself. While Banovic pled guilty to one
14 count of persecution which was limited to his own involvement within the
15 joint criminal enterprise at Keraterm, the appellant Zigic has been
16 convicted not only of his personal participation but as a co-perpetrator
17 within the joint criminal enterprise which also includes the other crimes
18 committed within the joint criminal enterprise in Omarska. And it has to
19 be emphasised that while Mr. Banovic pled to the crimes that he committed
20 at Keraterm, the appellant Zigic has been convicted not only of the
21 crimes he committed at Omarska but also the crimes he committed at
22 Keraterm and Trnopolje over several months' duration.
23 And importantly while Mr. Banovic was indeed a guard at the
24 Keraterm camp which was taken into consideration as a factor and
25 aggravation of his sentence the Trial Chamber in this case repeatedly
1 noted that the appellant Zigic had no other purpose at the camps but to
2 seek out victims for his beatings, tortures and murders.
3 The Trial Chamber in the Banovic plea gave the accused full
4 credit for his guilty plea. The judgement noted the importance of a
5 guilty plea at this Tribunal and in sentencing generally. It noted that
6 an admission of guilt demonstrates honesty and it is important to
7 encourage others to come forward as well. A guilty plea contributes to
8 the truth-finding mission of the Tribunal. It also has a public benefit
9 in that it saves the Tribunal time and resources, and most importantly, a
10 guilty plea relieves the victims and witnesses from the stress of
11 testifying before their tormenters.
12 The appellant Zigic, of course, can claim none of these important
14 The Trial Chamber in Banovic also found that he expressed sincere
15 remorse. As I noted previously, the Trial Chamber in this case did not
16 find that the appellant Zigic expressed remorse even -- or at most
17 sincere remorse.
18 The Prosecution would also like to clarify two issues in relation
19 to what the appellant said about the cooperation of Mr. Banovic with the
20 Prosecution. While it is true in the submissions of the Prosecution
21 following the plea of guilty in Banovic, the Prosecution argued that he
22 -- his cooperation did not rise to a level of substantial. The Trial
23 Chamber in Banovic did in fact find that his cooperation was substantial,
24 and that was considered in the sentence of eight years.
25 The Trial Chamber found that Banovic substantially cooperated
1 with the Prosecution based on interviews and the promise to cooperate
2 fully in the future. In contrast, the Prosecution has never accepted
3 that the appellant Zigic has cooperated substantially or otherwise with
4 the Prosecution either at trial or on appeal, and this brings me to the
5 second point that I would like to clarify.
6 The appellant's counsel mentioned that he -- that the appellant
7 had attempted to plead guilty on appeal. The Prosecution does not accept
8 that the appellant ever attempted to honestly plead guilty. He merely
9 attempted to admit a few incidents, namely the kicking of Car and the
10 slap of Witness AK which had already been before the Trial Chamber and
11 considered in his statement. Furthermore, pleas of guilty are considered
12 as mitigation for the reasons in the Banovic plea. The Prosecution can
13 see no value in an appellant who has been convicted of his crimes at
14 trial, attempting to plead by minimising his participation on appeal.
15 And finally, Banovic's young age of 23 was considered in
16 mitigation, where at the time of his crimes the appellant Zigic was 33.
17 The appellant has not demonstrated that the Banovic plea and
18 sentence in any way assists in demonstrating that the Trial Chamber in
19 this case abused its discretion or went outside its discretionary
20 framework in sentencing the appellant to 25 years. And finally, the
21 Prosecution would like to briefly address whether an acquittal of the
22 appellant for the murder of Drago Tokmadzic in the Keraterm camp could
23 have an effect on his overall sentence.
24 It's the Prosecution's respectful submissions that given the
25 severity and the repetitive nature of the appellant's conduct for which
1 he has been convicted, the fact that he regularly entered the camps for
2 the sole purpose of beating, torturing and murdering the detainees, and
3 in light of the heinous gravity of the offences which would remain
4 convictions even if the Drago Tokmadzic murder was reversed, an acquittal
5 for his participation in this one particular crime should not affect his
6 sentence. It is the Prosecution's submission that the sentence of 25
7 years was the appropriate one to describe the totality of the appellant's
8 conduct, not only within the joint criminal enterprise of Omarska but
9 also in relation to his personal conduct and commission of crimes in all
10 three camps. And that it is the Prosecution's submissions that all of
11 the appellant's grounds of appeal in regard to sentencing should be
12 dismissed and his sentence upheld.
13 Thank you.
14 JUDGE SHAHABUDDEEN: Thank you very much. Judge Guney has a
16 Judge Guney, please.
17 JUDGE GUNEY: [Interpretation] With respect to the third point
18 that you raised with respect to recognising culpability and remorse on
19 the part of the accused, you -- you quoted the example of Jusufagic.
20 Were there others? Can you tell us if there were others, and which
21 others if those exist. Thank you.
22 MS. HOWICK: Yes, Your Honour. This were numerous others --
23 [French translation on English channel].
24 I'm getting French. Sorry.
25 The appellant did mention several others in his statement, and
1 similarly to what he said about Car, he downplayed any involvement. In
2 fact, for many of the crimes he completely avoided any mention of any
3 participation in any of the crimes.
4 There's one crime in particular that I did not mention in my
5 statement that I could refer to, and that was in reference to Witness AK.
6 The appellant admitted that he took money from the victim and hit him
7 once based on a debt that he had -- that the witness -- victim had owed
8 him previously to the war. The appellant in his statement said that
9 hitting this victim caused him great pain as a result of his amputation
10 and that he left the room, went outside, and chatted with Abdulah Brkic,
11 who was another victim. This is what the appellant said in his own
13 Now, in the Trial Chamber's judgement, the Trial Chamber found
14 that Zigic had actually taken this witness out of the camp, including
15 several other victims and witnesses, and taken them to the "white house"
16 where he and others proceeded to order them to sit like dogs while they
17 were sworn at and beaten with weapons until they bled. And afterwards
18 Zigic had made them crawl outside and wash off the blood and dirty water
19 saying: "Pigs, wash yourself." And that's at Trial Chamber judgement
20 paragraph 585 to 598.
21 There was several victims. The only one that the appellant
22 admitted hitting once was Witness AK which was obviously rejected by the
23 Trial Chamber. And in his statement, if you would like to review it, he
24 does mention several other victims. And I believe his statement was
25 given on March 26 of 2001.
1 JUDGE SHAHABUDDEEN: Any questions?
2 Thank you, Ms. Howick. Thank you very much.
3 MS. HOWICK: Thank you.
4 JUDGE SHAHABUDDEEN: Now, does that conclude the arguments for
5 the Prosecution?
6 MR. CARMONA: Your Honours, I'm sorry, I'm behind the wall, but
7 these are the submissions of the Prosecution in relation to all the
9 JUDGE SHAHABUDDEEN: Thank you.
10 Then we go now to the Defence, and I think we had decided -- did
11 we decide to go in the order in which names were stated on the cover
12 sheet of the judgement? That would place Kvocka first.
13 Yes. Well, would counsel for Kvocka be the first to speak.
14 Mr. Krstan Simic.
15 MR. K. SIMIC: [Interpretation] Thank you, Your Honours, and good
17 During these 20 minutes, I will try to respond to yesterday's
18 submissions of my learned colleagues of yesterday. I have three
19 questions that I would like to put, and I will start from the most
20 important one, in my judgement, and then will get as far as I can with
21 the time permitting.
22 First of all, I would like to deal with the question of the joint
23 criminal enterprise or joint criminal intent. My colleagues yesterday
24 and in their submissions, or in their response to the appeal in
25 paragraph 531, concluded that the responsibility of Kvocka rests on his
1 significant contribution to the realisation of abuse in Omarska and that
2 in that sense his status of a functional equivalent of a deputy commander
3 of the guards was not something that had any influence on this.
4 This position which was indicated here yesterday in a certain way
5 opens up the question of whether this form of criminal enterprise can be
6 placed in group 2 from the judgement in the Tadic case. I think that
7 Judge Mumba yesterday asked this question, because if there is no
8 position of power, high position of power, which in itself contains the
9 presumption of intent and motive, then I think we have a new issue here
10 and that in this case we're talking about the first group of joint
11 criminal enterprise. I know from the appeal judgement in the Tadic case,
12 in that case the intent is required to commit a joint criminal
13 enterprise. My learned colleagues did not deal with this matter, nor did
14 they prove the existence of intent with Mr. Kvocka from the simple reason
15 that the indictment is not consistent with the judgement. They claimed
16 in the indictment that Kvocka was a commander, a deputy commander, of the
17 camp, and had they proved their claims, then we would then come to the
18 existence of a joint criminal enterprise based on the function of
19 authority which presumes what I mentioned earlier. This means that they
20 did not even try to prove premeditated intent with Kvocka for this kind
21 of act.
22 But I would also like to talk about motive or intent. The second
23 group asks for the existence of this intent or motive in order to prove
24 such an act. We believe that evidence in this case did not prove the
25 existence of Kvocka's intent. Kvocka does not dispute that he went there
1 of his own will. He did not go to work there voluntarily, but he went
2 according to the schedule of his professional duties, believing for a
3 long time that he was performing a legitimate job which in those initial
4 days seemed quite in accordance with the rules of service public security
5 service in conditions of exceptional circumstances, and he was a member
6 of this extraordinary security service.
7 However, during his stay in Omarska, which amounted to 17 days
8 with two four-day breaks, Kvocka publicly because of his political
9 positions and because of his personal and family circumstances and
10 because of his professional commitment publicly demonstrated his
11 disagreement with the policy and the events in the camp. He brought food
12 packages there. Every time that he had the opportunity he opposed and
13 prevented violence. He publicly brought in medicines. He criticised
14 what was happening. And finally, the Trial Chamber itself -- because of
15 such conduct of Kvocka's the atmosphere was much better in Omarska for as
16 long as he was there. It was not better because he was in a position of
17 authority but because he tried in extraordinary circumstances to do his
18 job as much as this was possible.
19 Of course his conduct in this sense was not something that his
20 bosses looked upon favourably nor the people who committed these crimes.
21 Because of that and because of his public positions and actions and
22 public disagreement, Kvocka was dismissed from the Omarska camp on the
23 22nd of June, 1992, which was his last day of work there. Mr. Kvocka
24 believed that he was transferred to the police station in Tukovi because
25 he did not receive any other kind of information. He was just told by
1 Simo Drljaca to hand in his weapons and to go home. However, during the
2 evidentiary proceedings when certain documents were disclosed, Kvocka
3 found out, learned that he had been dismissed and that he returned to
4 Tukovi on the 1st of July based on a decision about -- which he found out
5 for the first time once he was here in The Hague.
6 Mr. Stojan Zupljanin, the chief of the public security centre in
7 Banja Luka made a decision, number 11/101-6, which was tendered into
8 evidence as D139, which states you cannot dismiss a worker without the
9 centre for public security being informed about that, and you have to
10 find adequate solutions in order to give them different duties which are
11 not contrary to the rules. Item 1 of this decision points out who can
12 work at which positions, and only due to those reasons Kvocka was not
13 left without a job. He was taken out of Omarska because of his public
14 disagreement with the policies conducted in Omarska. This is indicated
15 also about the statement of Jadran Mikic, Zdravko Samardjia also, who say
16 that Kvocka should have been tapped by Simo Drljaca because of his
17 activities. His conversations should have been bugged. Because of
18 distrust towards Kvocka, Lazar Basrak also spoke about that, a witness
19 who testified and who was the assistant commander of the reserve police
20 station in Tukovi where Kvocka was transferred following the intervention
21 of Mr. Zupljanin on the 1st of July.
22 I would just like to have a second to prove into a private
23 session because Mr. Basrak spoke about this meeting during private
25 JUDGE SHAHABUDDEEN: Agreeable? Agreeable to the Prosecution?
1 MR. CARMONA: Indeed, Your Honour.
2 JUDGE SHAHABUDDEEN: Yes. So ordered.
3 [Private session]
17 [Open session]
18 MR. K. SIMIC: [Interpretation] Thank you.
19 THE REGISTRAR: We are now in open session.
20 MR. K. SIMIC: [Interpretation] Also, Your Honours, Witness F
21 testified before the Trial Chamber, a witness who had spent the entire
22 time in Omarska. During her testimony she said, I quote:
23 Q. "You said that he, Kvocka, had lost his job. Is this true?
24 A. "Yes.
25 Q. "You said -- you told Ms. Hollis and she quoted your words.
1 We asked why did he lose his jobs and the guards said --
2 -- and you said, and I'm quoting --
3 " -- he was good for you but he's not good for us. Is
4 this true?
5 A. "Yes.
6 Q. "When he said he's good for you, who did they mean? Did
7 they mean Muslims?
8 A. "Yes, Muslims.
9 Q. "And when they said not for us, did they mean Serbs when
10 they said "For us"?
11 A. "Yes, Serbs. Chetniks.
12 Your Honours, this is the testimony of a witness before the Trial
13 Chamber who also talked about Kvocka's dismissal and the reasons for this
14 dismissal. I must say that also we have an affidavit on this matter, the
15 statement by Rezak Crnalic who testified about the dismissal. Yesterday
16 my learned friends mentioned the standard in the Krnojelac judgement
17 where disagreement with persecutions or absence of intent would
18 substantiate a dismissal. We would like to say that a dismissal has a
19 more specific weight than resignation for the reason that this contains
20 resistance, public disagreement, a showing that there is no cooperation.
21 So for that reason, we believe that Kvocka had no intent or motive to
22 participate or support the plan because the absence of this support
23 resulted in his dismissal and then, in the spirit of Mr. Zupljanin's
24 decision, it resulted in him being transferred to marginal post.
25 The third element which we were looking at here is the obligation
1 of the Prosecution to prove substantial contribution. First of all, we
2 would have to define what a substantial contribution is. My learned
3 colleague yesterday introduced a standard, the standard of relay, that it
4 is a chain in which people pass the baton from one to the other. This
5 was also applied in the indictment. They said Kvocka was a deputy. The
6 moment he was taken out of Omarska a different deputy was brought in
7 order to take over his duties, to take on himself the baton.
8 Unfortunately we believe that the indictment was not proved; the reverse
9 was proved. Kvocka was not the deputy, Prcac was not brought in to
10 replace him and there was no temporal nexus in all of these events.
11 Also, we must say, Your Honours, that by dismissing Kvocka from
12 Omarska, nobody came to replace him. We would also like to point out to
13 the learned Judges that during his four-day absence from the camp, nobody
14 substituted for him. Nobody was brought in to function so that this
15 baton and relay would function.
16 We tried to prove and I believe that the Chamber will be
17 convinced that Kvocka was just a member, just a cog in the machine. He
18 was a deputy police officer as part of a 24-hour guards duties, part of
19 the security service. And as a police officer he worked to his full
20 abilities, and he's proud of that. He's proud that in his term of office
21 the circumstances there were better. We state this today. He's proud
22 because as a man, as a police officer, he made his contribution to
23 prevent, stop, and alleviate what was happening at the camp. He could
24 not have done more. And the result of that, that he could not have done
25 more, was his dismissal from Omarska and all the consequences that
2 Now, I would like to go back to the question of the objections to
3 the form of the indictment. Yesterday, we all agreed - and I spoke about
4 this on Wednesday - that the indictment was not really reflected in the
5 judgement at all. Responding to Judge Weinberg de Roca's question, and
6 this was confirmed by the Prosecution yesterday also, the fact in itself
7 that there is no identity between the indictment and the judgement opens
8 up the serious question of the right of to a fair trial. This is all a
9 scholastic debate. We're all intelligent people. We could have assumed
10 certain things, but we did not assume anything here. The Prosecution was
11 there to prosecute, to make their case, to inform us about it and to
12 prove it, especially because the institute of the joint criminal
13 enterprise was mentioned for the first time in the opening statement and
14 that it represents an integral part of the indictment. There is no case
15 before the Tribunal except for this one where this was not incorporated
16 into the indictment.
17 Responding to a remark by our colleagues that we did not object
18 to that, we were simply not able to do this. The opening statement
19 actually -- and the first time we were able to address that was actually
20 in the closing statement, and we did object to this and we did say that
21 we were prevented from responding to this matter in an adequate manner.
22 And I still have time for my third question, and that is the
23 matter of factual errors. Again, I would like to start from matters that
24 we all agreed on.
25 There is no identity between the indictment and the judgement.
1 The indictment was drafted by the Prosecution based on what? Based on
2 hundreds of statement witnesses, based on hundreds and thousands of
3 documents, based on an expert, learned analysis with which evidence it
4 can prove its claims. And what happened? The evidence that they
5 submitted, that evidence brought before the Trial Chamber did not confirm
6 the case that they were making. There is no consistency between the
7 evidence, the claims or the charges in the indictment, and the judgement.
8 When we're talking about Kvocka's status, the functional
9 equivalent of a deputy of the guards service, we believe that also in
10 this case there is no consistency between the conclusion of the Trial
11 Chamber with the evidence that the Trial Chamber relies on. And of
12 course this is not possible. This cannot be, absolutely. Because my
13 learned friends did not make the case that Kvocka was the equivalent
14 functional I don't know what, but they claimed that he was a commander
15 and they brought people who claimed that he was a commander. They
16 brought witnesses who said that Kvocka was deputy commander. They
17 brought people who were telling a different story. And based on that
18 story, the conclusion was to be drawn that Kvocka was a functional
20 If you compare the statements of these witnesses, then we can see
21 that this is a grave factual error which demands, in the application of
22 the standards of this Court, that this appeal Appeals Chamber substitutes
23 these findings. The Prosecution itself admits that we cannot accept the
24 testimony of witness Oklopcic. There were many errors in the conclusions
25 here. We're talking about Witness Starcevic, for example. This is a
1 witness brought by Mr. Fila, and in his testimony he decidedly said that
2 he saw Kvocka in Omarska once and once only. The same witness, when he
3 talked about his tasks when he came here, that he did have his posts to
4 which he reported to, did he not have to report to anyone about his work.
5 He knew what he was supposed to do. The Trial Chamber concluded that he
6 was talking about Kvocka, that Kvocka did not have to report to anyone,
7 that Kvocka did whatever he wanted and so on and so forth.
8 I do not want to point to all of these errors, but just the fact
9 that there is no consistency between the judgement and the indictment
10 points to the conclusion of what the relationship of this had to have
11 been to the conclusion. The conclusions were quite different. They came
12 from things that were not mentioned by any witnesses. Not one single
13 witness mentioned that Kvocka was deputy commander of the guards.
14 Witness Alisic, mentioned by my learned colleagues yesterday, said that
15 Kvocka said that he was camp commander. Which logical, legal, or any
16 other kind of interpretations can lead to us draw the conclusion that
17 this witness supported the fact that Kvocka was the equivalent of the
18 deputy guards commander?
19 This one-sided approach to the evidence was also viewed in the
20 following: When my learned colleagues talk about the killing of Mulis
21 [phoen] and Mehmedalija Nasic on the 20th of June don't mention
22 Witness Okic Jasmir. Witness Okic --
23 JUDGE SHAHABUDDEEN: I take it Mr. Simic, you're about to
25 MR. K. SIMIC: [Interpretation] My last sentence, Your Honour.
1 Mr. Okic, an experienced policeman, a Bosniak himself, a direct
2 eyewitness of the killing of the unfortunate Mehmedalija Nasic, watched
3 the killing and he was questioned personally by the distinguished
4 Judge Rodrigues with respect to the circumstances of the killing. And he
5 said that Kvocka was not there. My learned colleagues did not mention
6 that yesterday. All they did was mention one other witness and
7 distorting his evidence.
8 Thank you. Bearing in mind all these circumstances, we stand by
9 our proposal that the remaining points in the indictment with respect to
10 Kvocka should be rejected. Thank you.
11 JUDGE SHAHABUDDEEN: Thank you very much, Mr. Simic.
12 Yes. Mr. Jovan Simic for Mr. Prcac.
13 MR. J. SIMIC: [Interpretation] Good morning, Your Honours.
14 Before I give my response, the Defence would like to repeat something
15 that was said yesterday by the Prosecution or, rather, they tried to
16 explain something to other people, that Zeljko Meakic was the commander
17 of the camp. That is not true and correct. And in the judgement,
18 paragraphs 29, 34, and 37, 39, the Trial Chamber concluded what the
19 competencies of Zeljko Meakic were. In paragraph 372 they note that he
20 was a leader of the security service in the Omarska camp. So the
21 assertions made or, rather, the desires on the part of the Prosecution to
22 have Zeljko Meakic be camp commander cannot stand and are unacceptable.
23 The second point that I would like to raise at this point in time
24 is that the Prosecution also claim that the system within the camp was
25 illegal and unlawful and that people could withdraw and that he withdrew
1 and that he was not punished. He mentioned DD10, Witness DD10, who left
2 the camp and that nothing happened to him. From this allegedly the Trial
3 Chamber concluded that anybody could leave the camp whenever they wanted
4 to. DD10 was a witness who that worked in the Secret Service of the
5 former Yugoslavia for a long time. DD10 was a witness who at the time of
6 the war was also in the intelligence Secret Service, and DDD [as
7 interpreted] was also a witness who said that he could leave the camp and
8 nothing happened to them because the Secret Service of the former
9 Yugoslavia stood behind him and that the service of Republika Srpska
10 itself as well [as interpreted].
11 Your Honours, the indictment and Prosecution said yesterday that
12 the -- that Mr. Prcac did not respond to the form of the indictment and
13 that is true. The Defence team had no reason to object to the form of
14 the indictment. You know that better than this Defence team itself, but
15 it is one of the rare indictments which was confirmed before this
16 Tribunal and which was precise in that way.
17 Mr. Prcac, through the indictment, was accused of the counts
18 we're all familiar with and charges we're all familiar with, but it also
19 said that he was the deputy camp commander and responsible by virtue of
20 that capacity and that he had certain authorisations such as that he was
21 a superior to everyone there, that he had effective control, that he
22 could have indeed changed the conditions in the camp, that he could say
23 who was allowed to leave the camp and who was not, and that as deputy
24 camp commander he was also responsible as a member of the joint criminal
25 enterprise and, as we know, this responsibility is incorporated in
1 Article 7(1) of the Statute of the Tribunal.
2 Therefore, I think the Defence had a clear-cut position defined
3 for Mr. Prcac. The acts that he allegedly perpetrated, the capacity he
4 perpetrated them in, and some acts were concretised as well. The charges
5 brought against him, which were to be proved as support to the
6 indictment, which in the position of this Defence team was more than
7 precise, and that is why we did not complain. We did not object to the
9 So whatever the Prosecution claims, there was a precise
10 indictment. The functions of the accused were set out. The
11 authorisations were set out, et cetera, et cetera. The Prosecution did
12 not wish to determine the form of joint criminal intent because I suppose
13 they counted on the -- think that mens rea would be established through
14 the trial and proceedings and that culpability would establish thereby.
15 Perhaps they forgot, because the Prosecution teams replaced each other so
16 many times they might have forgotten it. But what have they proved of
17 the charges in the indictment? Nothing. Is there any identity there?
18 No, there isn't, and the Prosecution confirmed that yesterday.
19 The concept, the notion of concentration camp expounded by the
20 Prosecution was mentioned for the first time, and we don't mind, towards
21 the very end of the case itself, towards the end of the trial when there
22 were no further possibilities of proving the first form of joint criminal
24 An administrative assistant to the camp commander as a concept
25 was something the Defence heard the first time when the indictment was
1 made -- when the judgement was made public, and the Defence wanted to say
2 that the function is no longer important. What we have to see is what he
3 actually did, what acts he actually committed.
4 JUDGE SHAHABUDDEEN: Mr. Simic, would you like to slow down a
6 MR. J. SIMIC: [Interpretation] Yes, but I have very little time
7 at my disposal, Your Honour. But I do apologise, yes.
8 So the Prosecution yesterday tried to tell us that it didn't
9 matter what actual function he held and that the Trial Chamber, that all
10 of us here today had the role of establishing his function, his posts.
11 Now I'm asking myself, and I'm asking all of us together, why then should
12 a function be determined at all, a post be determined? Why was it -- the
13 issue raised in the first place?
14 Now, something that goes to the detriment of the Defence team,
15 and I'm sure that the Appeals Chamber will find that in paragraph 468
16 point D, the Appeals Chamber says that Prcac's participation in the
17 functioning of the camp as an administrative assistant to the camp
18 commander was important, making him liable as a participant in the joint
19 criminal enterprise of Omarska camp. That means, as I said on Wednesday,
20 that I could agree if he was said to be a member of the joint criminal
21 enterprise, if that's what the Prosecution said, and then the Defence
22 team would be duty-bound to look into all the possibilities of his having
23 taken part in a joint criminal enterprise. But with a precisely defined
24 indictment of this kind and the conclusion made by the Court in the
25 paragraph that I just quoted, there is absolutely no dilemma that the
1 identity is wrong between the indictment and the judgement and that this
2 is to the detriment of the Defence team because they never actually
3 discussed the matter.
4 The Defence team would like to present one further point. If in
5 keeping with continental law, perhaps, the Trial Chamber wished to
6 ascertain the truth as it stood, the material truth as it is called in
7 continental law, it was duty-bound either to instruct the Prosecution to
8 amend the indictment because the Prosecution says that is just one part
9 of the case. Yes, that is why can and should be amended [as
10 interpreted], if the situation during trial is different from what has
11 been set out or if the conditions are ripe for that. So what it should
12 have done is this: It should have either instructed the Prosecution to
13 amend the indictment and now to prove the assertions which emanate from
14 the factual -- from the facts or, as in the Stakic case, it could call
15 witnesses to establish who the commander was, whether there was an
16 administrative assistant, what his authority was, did he have an
17 important contribution, et cetera, et cetera, or whether they were
18 important matters for that particular camp or the application of a joint
19 criminal enterprise liability generally.
20 In its appeal -- appellant's brief, the Defence also stated,
21 although the Prosecution yesterday did try to relativise this, if I can
22 put it that way, that Mr. Prcac did not take part in any individual crime
23 in paragraphs 451 and 458, and the Trial Chamber concluded that.
24 Now, what the Defence wants to point out to this Appeals Chamber
25 is the following fact: That the conclusion made by the Trial Chamber
1 itself, that Mr. Prcac was an administrative assistant is erroneous. We
2 don't have time to go into this, whether he came of his own free will or
3 not, volitionally or not, but the Trial Chamber did conclude that he
4 never mentioned it himself in an interview to the Prosecution and that
5 written documents state otherwise.
6 Speculations on the subject of whether the witness can recognise
7 and identify somebody or cannot once again is stated in the indictment
8 that there were at least two of them, two perpetrators and that one of
9 them could have been Prcac. No 10 or 15 witnesses were called on that
10 day to recognise and identify the people.
11 Now, the insinuations made by the Prosecution that Mr. Prcac
12 called out 20 and as they weren't on the list they were listed as
13 missing, we can see in the list that they are alive and well and were
14 transferred to Manjaca camp.
15 The other assertion that the Defence said that he was the
16 administrative assistant, let me address that now. Although I don't have
17 time to do that, I will just quote the following: The Court said that he
18 was in charge of the transfer of detainees and that is found in
19 footnote 702. He list -- he read out lists of persons being transferred
20 and that the -- that the Defence brought this up in its pre-trial brief.
21 The Defence wrote that he read out lists of persons who were
22 transferred to Trnopolje and Manjaca. That was the transfer of women.
23 They all reached those camps alive and well, and all of them also turned
24 up alive and well.
25 Now, had the Defence actually wrote this, it could have drawn a
1 conclusion, but erroneously quoting a conclusion of this kind on the
2 pre-trial -- the Defence brief led to the erroneous conclusion on the
3 part of the Trial Chamber.
4 I should now like to look through the lists, and read through the
5 lists, and Mr. Prcac's authority in compiling these lists and his
7 Yesterday the Prosecution, once again, for the umpteenth time,
8 and it has done this consistently from the beginning of trial, once again
9 stated that Mr. Prcac was in charge of the lists, that he compiled the
10 lists, and these were not ordinary lists. They were lists after which
11 people were tortured, disappeared, et cetera, et cetera, beaten and so
12 on, and that that was his administrative duty in compiling those lists.
13 Well, that is just not true, just not correct, Your Honour, because there
14 is no evidence and proof of that in this case. Perhaps there are in some
15 other trials but not in this particular case.
16 Now, as far as the administrative duties are concerned of
17 Mr. Prcac I would like to state following: None of the witnesses
18 explained what those duties were. All they said was he carried papers
19 around. In the former Yugoslavia, yes, when people carried documents we
20 would say he was a clerk or whatever, depending on the language and terms
21 you're used to. But nobody said that he kept records, compiled lists,
22 et cetera, and the Defence says this with full responsibility. He never
23 did that.
24 Point number 2: Apart from having said that he carried papers
25 and lists around, none of the witnesses quoted a single name, the name of
1 a person read out from a particular list, read out by Mr. Prcac, and that
2 as a result that individual disappeared. All they said was they read
3 that -- that he read the list, but they said that -- and here we'll come
4 to the famous sentence that they were tortured or disappeared answer.
5 Then my cross-examination was, I asked them to give me one name. They
6 couldn't name a single name. The same witness gave 25 non-Serb names of
7 people who were beaten or disappeared in some other way.
8 Now, with respect to compiling the lists, we raised this matter
9 on Wednesday. The lists were compiled by the interrogators. They were
10 compiled at the public security station in Prijedor, and nobody compiled
11 the lists in Omarska camp itself either amongst the Security Service led
12 by Zeljko Meakic. There is no proof or evidence of that at all. So
13 anybody to draw that conclusion, and I do apologise because Mr. Fila
14 mentioned this standard a moment ago, but that person cannot make a --
15 that is not a reasonable person to make such a conclusion. There is no
16 proof or evidence of that. And what has troubled the Defence team from
17 the general -- from the very beginning is the constant pressure on behalf
18 of the Prosecution to create an atmosphere conducive to Mr. Prcac's
19 participation in all this and that he was in charge of compiling these
20 lists. There is absolutely no proof of evidence of that, and I'm sure
21 that the Appeals Chamber will become convinced of that in due course.
22 May I summarise. The administrative assistant to the camp
23 commander is a function that determine Mr. Prcac's position in the joint
24 criminal enterprise, and it determined that he is criminally responsible
25 pursuant to Article 7(1) of the Statute.
1 Let me just briefly add the following and tell you why we feel
2 aggrieved. The Defence thanked the Trial Chamber at the end. They had a
3 lot of understanding for us. We were given just one and a half months to
4 prepare our Defence. However, this Defence team did not express its
5 gratitude to the Prosecution. I was not able to thank the Prosecution
6 for a bona fide relationship towards us because we were tripped up many
7 times and were not disclosed the material we should have been disclosed.
8 Witness K, for example, in talking to the Prosecution said that
9 she would mention Prcac, although she never mentioned Prcac up until
10 then. The Prosecution did not inform us of that. When the Defence asked
11 that that portion of the transcript be redacted, they said this came out
12 spontaneously. We ascertained that it was not spontaneous, but never
13 mind, we left that alone.
14 Witness Nihad Haskic was introduced with the explanation that he
15 would be a specific witness with respect to his testimony of Mr. Prcac,
16 and another nine witnesses but Mr. Haskic never mentioned him in his
18 Other material that was not disclosed to us also exists. I'm
19 sorry, but I cannot -- now that I don't have time to elaborate on all
20 this undisclosed material.
21 There are many things that speak about mens rea with respect to
22 our accused to what was going on. I haven't got the time to address all
23 that but in any case, the Defence had a very poor relationship,
24 unfortunately, with the Prosecution, not this team but the other
25 Prosecution team. And finally the closing arguments of our Defence team
1 were geared towards not refuting certain allegations but erroneous
2 quotations by the Prosecution in their own closing statement.
3 So these are problems which made our task much more difficult
4 with the short time span that we had at our disposal, and at this point
5 in time the Defence feels that this resulted in the fact that a
6 completely precise indictment burst like a bubble, and we had to save
7 what we could because the Trial Chamber did quote erroneously and
8 accorded itself the right of stepping outside the identity and frameworks
9 of the indictment and take on the role of Prosecutor itself.
10 Your Honours, with respect to Mr. Prcac himself and his own
11 relationship. He has given an interview, and in his interview he set out
12 the elements he thought to be the vital essential elements. It was the
13 fault of the Prosecution that they did not investigate the details, and
14 then they cannot ascribe that to us. If they -- if somebody says there
15 were two corpses there, why don't they be -- why aren't they taken away,
16 it is not because they didn't matter. There was the proposal of hearing
17 Mr. Prcac himself as a witness, but due to his health we did not call
18 Mr. Prcac as a witness in the end.
19 And finally, Mr. Prcac is what he is. We provided enough
20 details. The Defence has already mentioned that some things simply could
21 not have been done differently. Mr. Prcac could not have not gone to the
22 camp. He was there under duress. He was forced to be there and simply
23 that forced -- the reason why he was there under duress was to save his
24 family. He had two sons. He has two sons who are handicapped. The
25 non-activity of Mr. Prcac, because as I said there is no evidence that he
1 was involved in any crimes or committed anything directly was actually
2 what he did was to save himself. He believed that if he had to be there,
3 at least if he did nothing, that would make his position a bit easier.
4 He felt that if he stayed there but did nothing, he would spare himself.
5 Finally, Your Honours, mistakes are possible. We are all liable
6 to commit mistakes, and it's important also to admit that if that
7 happens. I hope that this Defence has convinced the Appeals Chamber of
8 their submissions and that the Appeals Chamber will correct the injustice
9 perpetrated on Mr. Prcac and that it will reach a decision to acquit.
10 Thank you very much.
11 JUDGE SHAHABUDDEEN: Mr. Fila.
12 MR. FILA: [Interpretation] Good day, Your Honours.
13 JUDGE SHAHABUDDEEN: May I explain to you that I've since been
14 educated, and I realised that what happened was that there was no
15 deliberate act of discrimination where your client is concerned. What
16 was done was, regard was had to the size of the cases, and that's why you
17 were given 15 minutes, which time period was related to the fact that you
18 were given one hour to begin with.
19 Yes. Go ahead.
20 MR. FILA: [Interpretation] Your Honours, I did not even think
21 that. I was just joking. So please take that as a joke. It was not
22 meant to be a serious comment.
23 I will respond very briefly to the submissions of the
24 Prosecution. The Prosecution claims that 65 ter was done after the
25 disclosure of the material so that they were not obliged to act in
1 accordance with Rule 65 ter of the Rules of Procedure and Evidence. I
2 think that they were right, because the trial was still under way, and
3 rules are applied to any proceedings that are under way. For an
4 additional argument, it's true that during the trial proceedings rules
5 were changed in relation to the use of affidavits, and the Trial Chamber
6 then decided that nevertheless, in the interests of justice they will
7 continue to use affidavits even though this was now not allowed under the
9 Had the Trial Chamber decided not to apply 65 ter, then they
10 could have decided in the interests of justice not to apply that rule,
11 but as they did not reach such a decision, 65 ter bound or obliged both
12 the Defence and the Prosecution.
13 The same thing applies for Rule 63 of the Rules which says that
14 the -- that 63, and I have just quoted from that, at no moment did the
15 Prosecution say in relation to Witness AT say that she was being
16 questioned in relation to Rule 93(A). So for the first time we found out
17 about this from the judgement and not from the Prosecution.
18 The Prosecution also claims that I was not right to ask to -- for
19 it to have established any reasonable doubt that the testimony of
20 Witness T [as interpreted] was true, because they say this was not taken
21 as testimony in the sense of facts but only as to conduct. At that
22 moment, the ad contrario argument led to the conclusion that it was not
23 important whether Witness T was speaking the truth or not when we are
24 using this as an example of conduct.
25 Yes. I apologise once again. I will write this down for myself.
1 I'm speaking too fast.
2 So we cannot accept such a standard, because if you are using
3 testimony by a witness as evidence of a pattern of conduct, then this
4 testimony has to be true and subject to the tests of any other testimony.
5 So the testimony of Witness T -- AT has to be as true as the testimony of
6 any other witness on which the judgement is based. And now I'm talking
7 -- I'm finished dealing with 65 ter and 93.
8 As far as Witness F, Sifeta Susic, and Zlata Cikota, I almost
9 foresaw that Judge Weinberg de Roca would ask that question, and I wrote
10 down the sentence for myself which the Prosecution does not seem to
11 understand. The Defence claims that rape in itself as a rape and sexual
12 assault undoubtedly are grave violations of international humanitarian
13 law. This is clear. But as the Defence disputes the value of the use of
14 the testimony of K and AT, the Defence claims that without K and this T
15 [as interpreted], just these three statements would not amount to serious
16 violations in the sense of Article 2. So this is what I'm claiming. I'm
17 not saying it's clear that I'm right. I'm just saying that it's very
18 clear what my submission is.
19 We need to keep in mind, though, that when we're talking about
20 Witness J, there are misunderstandings between myself and the Prosecution
21 because as I said, in the judgement as far as Witness J is concerned, the
22 Trial Chamber found that this was an attempted rape. So this is a little
23 bit more than what refers to Witness F, Susic, and Cikota. The
24 Prosecution claims that this is not so, but I'm asking the Appeals
25 Chamber to read paragraph 574 of the judgement, and there you will see
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 clearly what we are talking about.
2 I'm not clear either about yesterday's discussion about 7(3),
3 because if I understand the Prosecution correctly, it would seem that it
4 is not correct that Radic was acquitted of 7(3) but that the Trial
5 Chamber had made no judgement on that. To the contrary. It is clear
6 that the Trial Chamber did not discuss 7(3) because they found that there
7 was no reason to do that. So why would they deliberate on something that
8 wasn't there? This is how I understood it.
9 As far as another very important question, this is something new
10 on which my colleague dwelt to some extent yesterday, and this is the
11 question of Witness K once again. As you know, I said several times that
12 Mr. Radic denies any contact with any of the witnesses. I never said
13 that he had any kind of contact on a voluntary basis so that then I would
14 have an explanation about the national jurisdictions and so on. I don't
15 know where that comes from. I know it's been discussed in the
16 Prosecution, but I don't know how that applies here.
17 What the Defence actually said was that it was incorrect to
18 present the Kunarac judgement after the appeal, which was made after the
19 appeal, and why I did not look at the Kunarac appeal judgement, because I
20 was not able to do that because at the time that had not been finished
21 yet. I also could not use the arguments -- just one moment. I need to
22 find it.
23 Yes. As far as the Sikirica case is concerned and the judgement
24 in that case, the Prosecution says why didn't I make a submission in the
25 sense of 94(B) to have this accepted as a fact in respect to that Rule.
1 The reason is simple. The Omarska -- the Omarska case was completed
2 before the judgement was made. So I could not deal with that
4 Therefore, in the sense of 94(B), I could not ask for the
5 acceptance of an adjudicated facts from the Keraterm case because at the
6 time this was not done. I am pointing out that this is important, that
7 two Trial Chambers in relation to the same witness and the same facts,
8 rape, came to two different positions just like as in the case of
9 Witness J. I forgot to mention this. I forgot to mention this captain,
10 that she gives the same description which refer to two persons. So I
11 don't know whether this was a mixing up of two people or it's a false
12 statement. So this is my example.
13 For example, as you say, Zeljko Marmat and some Karate Kid, but
14 they are actually one in the same person and in this case they are being
15 described as two people. So we don't need to go further into that.
16 So we could not ask for judicial notice of adjudicated facts in
17 the sense of Rule 94, but we are being asked to consider as new facts
18 which had already damaged the credibility of Witness K, and this was
19 established already by the Trial Chamber in their judgement. And the
20 judgement was made based on proposals by the Prosecution who themselves
21 did not believe Witness K, that she had been raped by Sikirica, even
22 though she claimed that the entire time. This is a very unreliable
23 witness, and I repeat, had the Prosecution decided -- managed to prove
24 their case based on the testimony of Witness A, there would have been no
25 need for Witness K to appear and testify at all.
1 Just one minor detail relating to the shifts. The Trial Chamber
2 never dealt with the fact that anybody ever worked outside of their shift
3 in the camp, and none of the witnesses confirmed anything like that, and
4 this is why the position of Hase Icic's position was disputed because he
5 had seen him in the morning and in the evening, be this is simply not
7 And finally, allow me to conclude. We may a considerable
8 objection to the indictment, and this was also discussed by the other --
9 my learned friends regarding the joint criminal enterprise. I believe
10 that we are actually talking about something else here. At the point in
11 time when the indictment was drafted, and as you know this is one of the
12 first indictments, this Court did not deal so much with the criminal
13 enterprise. This does not mean that this was not known in international
14 law, it's just that this court did not deal with that to such an extent.
15 And I believe that due to the change-over of the Prosecution teams, they
16 decided to prove the indictment by confidential schedules and through the
17 events, and when they saw that the indictment would not be able to stand
18 up to that and that the indictment was not proved, the Trial Chamber
19 saved the indictment from being completely dismissed by using this joint
20 criminal enterprise. So the trial now is saving the indictment because
21 there was no identity between the indictment and the judgement.
22 I agree that nobody should be a blinkered horse, as was mentioned
23 by my learned friend from the Prosecution. I said that in continental
24 law we stick to the indictment like a horse with blinkers, who does not
25 look to the left or to the right. It sees nothing more than the
1 indictment. So if I am behaving like a blinkered Defence counsel, I do
2 not accept the claim that I am a blind Defence counsel. So I would like
3 to have these charges dismissed, especially the charges relating to the
4 rapes, because I do not agree that this is something that Radic is
5 proving his joint criminal intent through. I'm claiming that there is no
6 rape. I believe that the judgement should be dismissed --
7 JUDGE SHAHABUDDEEN: Thank you.
8 May I propose --
9 MR. FILA: [Interpretation] -- or accepted in the terms that I
10 have put forth. Thank you very much.
11 JUDGE SHAHABUDDEEN: Mr. Fila, may I propose -- I see on the
12 schedule that we've issued we're not supposed to take a break until
13 11.25. But may I suggest that we take a break and return after the break
14 to hear Mr. Zigic through his counsel Mr. Stojanovic, and then the
15 parties themselves. Is that agreeable?
16 Then we shall suspend for 30 minutes in the usual way.
17 --- Recess taken at 10.56 a.m.
18 --- On resuming at 11.30 a.m.
19 JUDGE SHAHABUDDEEN: Now the sitting is resumed. We give the
20 floor to counsel for Mr. Zigic, I think. Yes. Mr. Stojanovic.
21 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours.
22 Perhaps I'll start in the reverse order and respond to some
23 questions raised by Your Honours yesterday.
24 The Defence of the accused Zigic availed itself of its right to
25 cross-examination of Prosecution witnesses. Every witness who mentioned
1 Zigic in whatever context was cross-examined by the Defence team, and
2 even those who did not mention him, too, but whose testimony could have
3 had something to do with Zigic's indictment. We cross-examined Mrkalj
4 Edin whose testimony says that in describing the events that took place
5 on the same day that Becir Medunjanin was killed with the instrument that
6 Becir Medunjanin was killed with in Omarska, that Zoran Vokic beat him
7 up, and that is, on the transcript, 2931. So that is the line. So not
8 Zoran Zigic. The man who was mentioned was Zoran Vokic. And he was
9 described as Fadil Avdagic describes the killer of Becir Medunjanin.
21 What is true is that when we questioned all the witnesses or
22 during the trial itself, we never said we didn't believe them or that
23 they were lying. But the wrong conclusion has been deduced from this,
24 namely we are thought to have claimed that we agreed to what they said by
25 doing so.
1 Now a few words about joint criminal enterprise. This is
2 something that my learned colleague Ms. Rashid spoke at length about, but
3 so did the other members of the Prosecution team as well. Although this
4 Defence team speaks about the problems of a category of this kind in
5 principle, it objects to this broad understanding of the concept of joint
6 criminal enterprise which incorporates Zigic into it as well. Zigic is
7 here as an outsider. He is mentioned in various ways in that way
8 compared to the other accused. It would appear that neither my colleague
9 Re has understood us properly. So let us repeat what we said.
10 The judgement, as indeed the indictment, portrays joint criminal
11 enterprise not as a mode of viability but as a specific crime, and that
12 crime is called the Omarska camp, whereas it is not provide for by the
13 Tribunal's Statute. We're not going to repeat all that argumentation now
14 because we've already put it forward in our appellant's brief. But be
15 that as it may, if the indictment and judgement said it was a mode of
16 liability, let that stand. But tell us now, please, what, what part? I
17 haven't learnt that to this day. Or, rather, to make matters simple,
18 let's take the mode of liability expressed in assistance. We're going to
19 say that the Prosecution informed us that Zigic assisted without
20 informing whether he assisted or aided and abetted in persecution,
21 torture, inhumane acts or anything else.
22 Judging by paragraph 691 of the judgement, Zigic was found guilty
23 not only for persecution through joint criminal enterprise but also for
24 killings within the joint criminal enterprise, and this can be seen from
25 the way in which the killings in Omarska were formulated, and torture
1 within joint criminal enterprise. All the tortures in Omarska, but also
2 each of these things individually and separately.
3 The judgement quoted several instances of joint criminal
4 enterprise in -- by courts and tribunals after the war, but we didn't
5 hear an example quoted that could be compared to the Zigic case, that is
6 to say, somebody who spent just half an hour in a camp and who in no way
7 took part in the establishment of the camp, in supplying the camp,
8 maintaining it, or anything like that. He was never employed there. He
9 never occupied any position there.
10 If they --
11 JUDGE SHAHABUDDEEN: Mr. Stojanovic --
12 MR. CARMONA: Yes, Your Honours. Just on a point of order, and
13 out of an abundance of caution, it is my understanding that Witness A
14 testified in closed session so that in fact we may have to redact and
15 possibly go into private session if my friend in fact intends to bring
16 up --
17 JUDGE SHAHABUDDEEN: Mr. Stojanovic, if that is correct and you
18 desire to proceed, then would it be convenient if we went into private
20 MR. STOJANOVIC: [Interpretation] No, Your Honour. I have
21 completed what I wanted to say. I don't think I disclosed anything that
22 is confidential, but of course if that passage should be redacted, I
23 agree to that.
24 JUDGE SHAHABUDDEEN: Yes. We will redact that passage, yes.
25 MR. CARMONA: If I may, it's at the beginning of his submissions,
2 JUDGE SHAHABUDDEEN: Yes.
3 MR. STOJANOVIC: [Interpretation] If they had only related the
4 Essen lynch case or Borkum Island that we referred to, I have to say that
5 I always had a great deal of difficulty in understanding what is
6 sometimes called implicit criminal responsibility and liability. I think
7 that that term should not be used at all. I am of the opinion that in
8 situations of this kind, it is far better to use a more precise, just,
9 and simple theory of co-perpetration as was applied to the Stakic case.
10 Quite obviously under the German school and Professor Claus Roxin with a
11 great deal of assistance from Judge Schomburg.
12 After that trial I went to have lunch in the canteen, but I don't
13 know why, whether because I was hungry or to further the work of the
14 canteen itself. As I eat a lot, I will certainly promote business in the
15 canteen. Now, this latter possibility never occurred to me before.
16 However, it is not a criminal activity, so let me use another
17 example to illustrate to what I want to say. As the registry is not
18 paying me, I'm going to rob a bank, and there I'm going to link myself up
19 with some local criminals. Let's take that example. I know that in that
20 way, I will considerably further crime in this city. I'll probably set
21 an example to some so that they could copy me or do something similar.
22 Now, if I'm caught, I don't suppose they're going to accuse me of being
23 responsible for all the crimes taking part in this city even before or
24 afterwards, or even while I'm in Belgrade.
25 Finally, in putting off a final assertion with respect to Becir
1 Medunjanin's murder and the torture of Witness D for later as the most
2 important charges brought against Zigic in Omarska, the Prosecution will
3 also have to put a discussion on his participation in the joint criminal
4 enterprise in Omarska.
5 Now something about my "frivolous" brief, mentioned by my dear
6 colleague Carmona, and there is a misunderstanding on that score too.
7 The Prosecution received instructions from the Trial Chamber that all
8 confidential documents should be made public and that protected witnesses
9 should just be given a pseudonym and confidentiality respected in that
10 light. And this happened to the Judge and to acquittal [as interpreted]
11 when several charges in the indictment were struck. The Prosecution
12 after that makes the same contribution as it did twice before. One was a
13 completely confidential document and contains all the charges, whereas
14 the other one was completely public and open. And in the submissions,
15 all the incidents that were rejected pursuant to Rule 98 bis were
16 rejected. They were brought up again. The pre-appeals Judge was asked
17 what that meant. I asked him, "What does this mean?" And this is
18 topical today. What does the Prosecution's position mean, that the
19 torture of Abdulah Brkic was both public and confidential?
20 The answer I was given was that I was frivolous, and in my
21 appeal, paragraph 269 in my appeals brief, I wrote that after that I came
22 to realise that in the indictment and the charges this indeed did not
23 mean anything but that it was necessary for the Prosecution to inform us
24 in advance what has no sense in the indictment and the charges so that
25 we're not confused by this. And I'm still not clear on that today. How
1 can a single fact at one and the same time be both public and
2 confidential? And that the person should be charged again for charges
3 that were rejected previously.
4 Now with respect to Mr. Re's presentation, and he refers to the
5 Kupreskic case and the appellant's brief in that case. I should like to
6 say that it would be a good idea if all the standards from that judgement
7 were applied to this case too. And we set that out in our appeals brief,
8 especially those which refer to the identification of the perpetrators.
9 We all know what happened. However, in paragraph 158 of our appellant's
10 brief, we also refer to the following passage, and I'm now going to read
11 out that passage to you. It says:
12 "In any case, the Appeals Chamber in the Kupreskic case, [in
13 English] Kupreskic Appeals Chamber judgement, paragraph 39 upheld the
14 opinion stated by the Canadian Court of Appeal in Regina versus Harper.
15 Where the report including the Reasons for Judgement discloses a lack of
16 appreciation of relevant evidence and more particularly the complete
17 disregard of such evidence, then it falls upon the reviewing Tribunal to
18 intercede. This standpoint refers to Zigic's case as a whole as
19 previously elaborated and not only with respect to the murder of Emsud
21 [Interpretation] The assertion of the Prosecution in this
22 portion, that is to say that they didn't see where justice had been
23 impinged upon, does not stand. I think that the Prosecution must respect
24 the fact that the appellant comes to the Appeals Chamber not as to some
25 people who have to be explain the most elemental and basic -- elementary
1 and basic things, but with all due respect to their vast knowledge and
2 experience, they are presenting their own case, their appellant's brief,
3 of course in summary form, which will give them enough time for their own
4 deliberations and decision-making.
5 Now, is it up to us to explain to the Trial Chamber something
6 which is the A, B, C of law, the basic facts of law? We could expect
7 quite the reverse, in actual fact. The response by the other side with
8 respect to persecution it seems to be that I am prone to certain
9 political, raising certain political arguments. I would like to define
10 policy and politics according to Hans Kelsen's premise, but not to -- I'm
11 not going to mention that here and now.
12 The Prosecution does not provide an answer to this position's
13 defence about political persecution. It seems to be adhering to the
14 dogma on persecution as exists in the Tribunal's practice so far, which,
15 as we can see from the general principles of the work of the Tribunal, is
16 subject to further criticism and new approaches.
17 With regard to Zigic's regular access to Omarska, the Prosecution
18 relies on the testimony by Azedin Oklopcic, and he is the witness of
19 Becir Medunjanin's killing who was quite categoric in saying that Zigic
20 did not take part in that act. He said that categorically, and he gave
21 us the names of the people who took part in it, although he doesn't wish
22 Zigic well at all and doesn't have a good opinion of Zigic himself.
23 Now, what are we going to believe? Are we going to believe the
24 Prosecution or Oklopcic? Now, the Prosecution and the judgement gives an
25 unacceptable recipe there of all the witnesses we have to squeeze out of
1 them those things that are in favour of the indictment even if it goes
2 one or two drops in favour of the accused and reject anything else
3 without giving any explanations for doing so.
4 The witness himself spoke untruths with respect to Zigic. He
5 said that Zigic had beaten up Beganovic which was refuted by the
6 judgement because Beganovic himself said he did not beat him up.
7 What is lacking here is a comment on the testimonies made by over
8 60 witnesses who were in Omarska and who claimed they never saw Zigic in
9 Omarska or that they saw him only once. A couple of them, whether they
10 were victims or alleged victims, say precisely that, including Witness T,
11 Witness AK, Witness AJ, and Abdulah Brkic himself.
12 As has already been said, the Prosecution will state its final
13 position with regard to the killing of Becir Medunjanin in due course but
14 it nonetheless contests the allegations of the appellant.
15 The appellant would like to draw the Chambers attention to
16 something that is shocking. Zigic way back in 1998 was accused of the
17 killing of Becir Medunjanin. However, the whole and most competent and
18 complex team of Prosecutors, Grant Niemann, Michael Keegan, and Kapila
19 Waidyaratne and Dan Saxon, being members of that team, signed a document
20 submission pursuant to Rule 73 bis (B)(ii), and filed it with the court
21 on the 17th of September, 1999 in which on page 49 of the B/C/S text they
22 say that they do not see how Zigic can be accused of the killing of
23 Medunjanin without a single scrap of evidence or proof, and that that
24 should be placed within the general counts in the indictment. Therefore,
25 that is a statement made by the top men in the Prosecution, and it is
1 part of the documents that have been filed. I should like to draw the
2 Appeals Chamber's attention to it, a statement given after the indictment
3 was raised. And so we ask ourselves on the basis of which an indictment
4 was raised at all against Zigic in that respect.
5 Regarding the conviction for the killing of Bahonjic, we repeat
6 there was no deliberation. There are no proofs that anything stated by
7 the Defence was reviewed at all. Then what can be done in the appeal
8 according to the proposal by the Prosecution, since this is not a de novo
9 proceedings? It remains for the entire Defence, with over 1.000 pages of
10 witness statements and three expert witnesses' reports, should be
11 rejected which was all submitted to the Trial Chamber which in turn
12 ignored all of that. We must stress that we provided many arguments
13 against a conviction which were individually sufficient to be successful
14 and that the Prosecutor yesterday responded to only one of those
16 The Prosecution in its response says the Defence talks about a
17 game of numbers from which it is evident they did not carefully read our
18 appeal, our brief and that they provided arguments -- where we provided
19 arguments that this in fact was not a matter of significance. In the
20 killing of Drago Tokmadzic, in the view of the Defence there are about
21 ten reasons, each one of which is individually responsible for an
22 acquittal, and we believe that the response of the Prosecution does not
23 deal with the basis of any of our claims.
24 As far as Brkic's claims, who is not favourable toward Zigic, he
25 said that Zigic -- I stress, Zigic never harmed him in any way and that,
1 again, he never beat him. So the stress is on never, which is repeated
2 twice, but there is also the absence of other proof that Zigic tortured
4 And when the Prosecution and even more the judgement bases so
5 much of their decisions on this witness, why is there no explanation
6 provided that they believe him in all of the charges against Zigic but do
7 not believe anything he says which goes to the benefit of Zigic; for
8 example, in the killing of Medunjanin and the torture of Witness T.
9 As far as the beating of Witness AK, which Zigic admitted, and
10 we're only dealing now with the fact why he did that from which we need
11 to draw a precise qualification of this criminal act. Witness AK did not
12 give an answer to this, and Zigic said this was done for certain personal
13 reasons. This is not sufficient proof that he only did that because he
14 was a Muslim. So we're only talking about a qualification for admission
15 of a crime.
16 I'm also at the end, but I think that this is a good moment to
17 comment on today's submissions by our colleague which talked about the
18 sentencing. On page 12 of today's transcript, she said that Zigic took
19 money from AK. I really don't know why my colleague did that. This is
20 absolutely untrue. Zigic is charged with a lot already in the indictment
21 and by the judgement, so then there is no need to add more things on top
22 of that without any grounds about any witness statements or any other
23 piece of evidence. There is no evidence that he took any money from AK,
24 as my learned colleague claimed today.
25 In connection with certain convictions based on the statement of
1 only one witness, the Prosecution refers to a certain practice of the
2 Tribunal which says that this can be done. This was done, but there were
3 other factors present and as an exception, but the rule is that
4 exceptions should be interpreted very closely. However, this practice in
5 that context says that the Trial Chamber can do this but that it is not
6 obliged to do so.
7 All in all, the Prosecution comes to the conclusion based on this
8 that the statement of one sole witness is always enough and treats this
9 as a rule and not as an exception. And what is worse, we're not talking
10 about one statement, but one statement which is contradicted by four
11 other statements which don't need to be mentioned at all.
12 So according to the Prosecution, the rule is that one witness is
13 sufficient even though his evidence is contrary to the testimony of ten
14 other witnesses, but here we have the question, which other witnesses?
15 Why only those who are favourable to their case?
16 By constantly referring to exceptions, we will come to a
17 situation where we will create a backward-looking rule. Regarding the
18 statement of Hasan Karabasic, we must remain by our position that
19 triviality is a term used by the Prosecution in respect of this incident.
20 I must say that Prosecution witnesses also said that Zigic was very
21 careful in watching over Karabasic while Karabasic was in Keraterm. This
22 was stated by Safet Taci. Another witness, a witness of the Defence does
23 not dispute a certain conflict but he claims that on that occasion Zigic
24 came to Trnopolje to bring a food package to a friend of his, a Muslim,
25 and finally again another Prosecution witness who stated that Zigic
1 strangled him with one hand only because his other hand was hurt, which
2 does not fit into the testimonies of other witnesses.
3 And finally just a few remarks about the Prosecution's
4 submissions today. My learned colleague said that Zigic had 13 cases of
5 beatings, and in paragraph 691(C) we counted nine such incidents, plus
6 one gross mishandling in item 9.D. We stated four different arguments in
7 our appeal brief. We actually stated many arguments, but because of the
8 time restraints we only referred to four of them in our oral submissions.
9 As far as Banovic is concerned, I think that in spite of a
10 detailed explanation by my learned friend, nobody in the world would
11 understand this. Banovic, five killings; Zigic, four. Banovic, 27
12 beatings; Zigic, nine. As far as the circumstances are concerned, I've
13 already said before that Banovic is faced with many more unfavourable
14 circumstances than Zigic is. We believe that this ratio is not good when
15 we are considering the authority of this Tribunal.
16 And finally, based on the submissions of the Prosecution, perhaps
17 I misunderstood, but it seems to me that the message that can be drawn is
18 followed. Do not admit anything. Do not express your remorse. Do not
19 show any goodwill towards the Tribunal. We're thinking about Zigic's
20 surrender here. And you can only do this only if it is all in accordance
21 with the positions of the Prosecution. This is something that we cannot
22 agree with.
23 I thank you very much.
24 JUDGE SHAHABUDDEEN: Thank you, Mr. Stojanovic. I would be
25 interested in knowing the reaction of Ms. Howick to your statement that
1 she alleged that Zigic had taken money from Witness K when there was no
2 evidence of that.
3 Ms. Howick, would you answer very briefly what the position is.
4 MS. HOWICK: Yes, Your Honour. If I either misspoke or if it was
5 translated differently, I meant to say demanded money. I did not mean to
6 say took. And if that is how it -- I either said it I was mistaken, Your
8 JUDGE SHAHABUDDEEN: Thank you. Okay, I understand you. Well,
9 then --
10 Yes, Mr. Stojanovic?
11 MR. STOJANOVIC: [Interpretation] Your Honour, if I recall
12 correctly the transcript, he did not demand the money but he said that
13 this was due to some earlier conflicts that they had before in relation
14 to procuring fuel and petrol, something to this effect.
15 JUDGE SHAHABUDDEEN: We have been forewarned, and we will look up
16 the transcript ourselves.
17 Thank you.
18 Mr. Carmona, you are on your legs.
19 MR. CARMONA: Indeed. Indeed. I just wish to crave the
20 indulgence of this learned Tribunal in addressing a concern, particularly
21 in relation to the nature of reply.
22 My learned friend on the other side has referred to some document
23 that was filed by the Prosecution on the 17th of September, 1999. This
24 is not in any substantive brief, neither is it in our arguments, and I
25 think out of an abundance of caution and fairness the Prosecution will
1 reserve a right to respond, if not at the evidentiary hearing that is in
2 fact coming sometime in the future, or if not, certainly in fact by the
3 appropriate filed document. We just wish to reserve that right at this
4 point in time.
5 [Trial Chamber confers].
6 JUDGE SHAHABUDDEEN: We don't think that -- you're not insisting
7 on that are you, Mr. Stojanovic?
8 MR. STOJANOVIC: [Interpretation] Your Honours, if I may make a
9 correction. We're talking about Witness AK and not Witness A. About the
10 matters discussed, my learned friend Mr. Carmona, I am asking in the
11 final trial brief or in the appellant's brief of argument. I'm looking
12 for it but this is something that is stated in our written documents, and
13 I'm looking for the place right now. I hope that I will be able to find
14 it. This is the place where we refer to that particular document.
15 JUDGE SHAHABUDDEEN: Mr. Carmona, Mr. Stojanovic says that he was
16 speaking of another witness, and perhaps you might not wish to pursue the
17 matter then.
18 MR. CARMONA: I'm just out of an abundance of caution, given the
19 fact that he spoke about some kind of document filed by the Prosecutors
20 in relation to the alleged killing of Becir Medunjanin, I just thought
21 that out of an abundance of caution I would need to examine in fact this
22 and find out what is the state of affairs in relation to this particular
23 document and, if need be, respond accordingly. If it is necessary.
24 JUDGE SHAHABUDDEEN: Well, in that case, Mr. Stojanovic will have
25 a right of reply.
1 MR. CARMONA: Indeed. Indeed.
2 JUDGE SHAHABUDDEEN: All right.
3 MR. STOJANOVIC: [Interpretation] Your Honours, I have just found
4 it. It's paragraph 141, our appellant's brief of argument.
5 JUDGE SHAHABUDDEEN: Paragraph 141. May I suggest we have
6 reached a stage where we ought to be moving forward now, and so we have
7 come to the point where the appellants personally have a right to address
8 the Court individually, and I would suggest seven minutes each. So I
9 would now call on Mr. Kvocka.
10 THE APPELLANT KVOCKA: [Interpretation] Your Honours, at the end
11 of these long trial proceedings, all that remains for me is a faith in
12 justice. I have been charged as a commander of a camp and also deputy
13 commander of the camp, and the news on my indictment, arrest, and trial
14 has been covered by world media. I have been acquitted of these serious
15 charges, but the newspapers and the media, even in my country, still
16 today write or say, "Kvocka, former commander of the Omarska camp." This
17 is something that can no longer be stopped or changed. I have almost
18 served my sentence.
19 Your Honours, I have children. I have grandchildren. And over
20 these past few days in this courtroom, I am seeking justice so that from
21 that they can be freed of accusations that their father and grandfather
22 was a criminal. I can say that I have not violated God's or man's laws,
23 and I'm so sure of that that I am quite able to say that God can repay me
24 all the evil that I allegedly committed or wished on anyone in that
25 Omarska camp.
1 I am aware of the suffering and the pain of many people in the
2 war. I feel very sorry for the people who were in Omarska and in
3 Celebici and Dretelj and feel sorry for the pain of any people anywhere
4 who suffered. But, Your Honours, my conscience is clear. I did not
5 intentionally or unintentionally harm anyone; quite to the contrary. I
6 helped as much as I could. And please believe me, the times were very
8 I am just asking this Honourable Tribunal to deliberate on all
9 the submissions made by my lawyer over the past few days, and justice is
10 my last hope. Thank you, Your Honours.
11 JUDGE SHAHABUDDEEN: Thank you, Mr. Kvocka. May we hear from
12 Mr. Radic.
13 THE APPELLANT RADIC: [Interpretation] Yes, Your Honour. I been
14 have charged before this Tribunal for command responsibility and for the
15 specific crime of rape of Witness A. In the first instance judgement of
16 this Tribunal of the Trial Chamber, I was acquitted of the command
17 responsibility charges and acquitted of charges for rape of Witness A so
18 that my indictment was overturned and I am a free man. From that moment
19 on until this very day, we have just been dealing with impossibilities
20 and improbabilities.
21 Your Honours, I do not understand the intricacies of legal
22 matters, and I will not say anything that has not already been said
23 before this Tribunal, but I still would like to claim for myself the
24 right to say a couple of things.
25 First of all as a person, I would like to express my sympathy
1 with the sufferings of all the victims in that region no matter whether
2 they belong to the Muslim, Croat, or ethnic national group or any other
3 group. I really sympathise with all of those victims.
4 Gentlemen, I have imprisoned for exactly 2.180 days, or, to be
5 exact, 12 more days will make a full six years or 2.193 days. This is my
6 fate and I cannot change it. But as a man I am hurt about the things I
7 have learned in this courtroom and in our case, as well as the things I
8 have read in the media about what kind of things certain individuals
9 committed, which crimes and ill deeds they committed, and based on plea
10 agreements to learn what kind of sentences they were given. I will not
11 discuss any plea agreement or plea bargain, but I have to ask myself
12 here, why have I been imprisoned for so long, for many years and my
13 proceedings have still not yet been finished nor any of the charges
14 against me have been proved.
15 As the third and most important thing I would like to say so that
16 the whole world can hear me, whoever on this planet wants war - no matter
17 where they happen to be or no matter to which people or nation they
18 belong to and no matter what the colour of their skin - whoever wants
19 war, I hope they have this war in their own home and feel it on their own
20 skin, and I hope that war is not repeated any time, anywhere, because we
21 all know that war does in the bring any good to anybody but only death,
22 destruction, and misery.
23 Thank you.
24 JUDGE SHAHABUDDEEN: Thank you very much, Mr. Radic. Mr. Prcac.
25 THE APPELLANT PRCAC: [Interpretation] Your Honours, I was
1 arrested on the 5th of March, 2000. The trial began on the 2nd of May,
2 2000. The time for preparation of my trial was about two months. Before
3 that I was retired. I was a pensioner and have been since 1995. During
4 the war conflicts I was mobilised. Under threats and pressure I was made
5 to work in the Omarska Investigation Centre regardless of my own will. I
6 told that to the investigators of the OTP. I explained how I came to
7 work in the Investigation Centre.
8 On the 13th of March, 2000, I pled before this -- before the
9 Trial Chamber as I am pleading now. I am not guilty of the charges
10 brought against me in the indictment. Let me remind you that in judicial
11 systems an indictment can be rejected if there is not sufficient evidence
12 to bear it out.
13 Your Honours, Judges, you were not able to ascertain or establish
14 that I committed any crime at all, nor did I have any command
15 responsibility. And on those grounds you were to establish my innocence
16 and not to assume my guilt, and on the basis of assuming my guilt to
17 pronounce sentence against me. This Court must compensate for the
18 victims of the crimes that were perpetrated, but it also has to protect
19 me if I'm innocent. My participation in the preparation or perpetration
20 of criminal acts does not exist. Therefore, I consider myself to be
22 In the fourth amended indictment, the Prosecutor states that at
23 one point in time, I was the deputy commander of the investigations
24 centre, which is not true, and that is why the Trial Chamber established
25 that that was not proved, that it was not proved that I was in actual
1 fact the deputy commander but that I was the administrative assistant of
2 the centre in Omarska. The Trial Chamber also established that I had
3 certain influence in Omarska and that I wielded some sort of power in the
5 Can you tell me what influence I wielded in Omarska? As an
6 administrative assistant, I was a pensioner doing these jobs
7 provisionally. What power did I have in the investigating centre? I was
8 just a pensioner, a retired person. I had no power. I wasn't an
9 administrative assistant anywhere. All I was was a clerk. If you have
10 the name of the commander -- I'm sure you will have the name of a
11 commander who will be able to tell you whether I was assistant
12 administrative worker or not.
13 I was charged under Article 7(1) for some material facts with
14 respect to my participation in a joint criminal enterprise. The
15 Prosecutor said I had significant contribution in that enterprise via the
16 post and functions I performed in the Omarska camp. The Prosecutor says
17 Prcac must have been informed of the nature of his authority in the
18 investigations centre of Omarska.
19 What functions can an administrative assistant have, even if he
20 does exist? He is a -- if he is a pensioner, if he is retired? The
21 Trial Chamber says that Prcac had certain control on the movement of
22 detainees within the Investigation Centre and outside it. This is not
23 true because in performing my duties and tasks, I never performed that
24 one. The Trial Chamber also accepted on the basis of the testimony of
25 just one Prosecution witness, (redacted) , who said that the guards
1 would refer to me if they had a problem. Now this testimony of this
2 witness is not truthful. We know to whom the guards were subordinated
3 and to whom they applied for guidance. They did not do so -- come to me.
4 I never -- I was never in charge of the transfer of detainees from one
5 camp to another or one place to another. That did not come within the
6 realm of my competence.
7 The respondent on page 225 says that the Trial Chamber,
8 furthermore, in paragraphs 452 noticed that Witness A was a protected
9 witness and in the transcript - this is on 5487 and 564 - says that
10 Witness F was a protected witness. This is also expressed in line 538
11 where he says that Prcac took female detainees out. I can say here and
12 now that I never called out any female witnesses, and this was confirmed
13 by (redacted) when asked by the president of the Trial Chamber,
14 Judge Almiro Rodrigues, whether lady detainees were taken out at night.
15 She said no, women were not called out at night. And you can refer to
16 the transcript of that testimony. And these assertions are contrary to
17 what Prosecution witnesses stated.
18 A protected witness, Witness A said that I called out Zlata
19 Cikota and that when she returned she was crying and quiet. I never
20 called out Zlata Cikota during the night or any other women. So that is
21 not a truthful statement by this witness. Zlata Cikota in this courtroom
22 testified herself in this case. She testified against me and other
23 individuals. Now, the statement she made is not true because Zlata
24 Cikota would have said it first of all, when she first testified. This
25 testifies to the kind of Prosecution witness she is. Zlata Cikota during
1 her testimony said that I saved her life, and the Trial Chamber
2 established that the position of Prcac was so insignificant as not to be
3 termed that he took part in a joint criminal enterprise. That speaks to
4 my work at the investigative centre. I had 11 hour shifts, 12-hour
5 shirts and nothing more than that. All I did was working on radio and
6 communication devices and telephone communication.
7 Your Honours, I would like to remind you that during the
8 presentation of Prosecution evidence, several witnesses testified, five
9 of which did not identify and recognise me in this courtroom. Seventeen
10 Prosecution witnesses didn't know what kind of work I did at all, what
11 tasks I performed, and that is sufficient testimony to what all this is
12 about. There were many contradictory witness testimonies, secondhand
13 hearsay evidence was presented.
14 My health has been ruined. I have been punished by -- I was
15 punished by SFOR before my guilt had been established at all. Which was
16 arrested, I did not give any resistance, either passive or active
17 resistance, but I was brutally beaten on the occasion and I have lasting
18 consequences of those beatings. My head was bashed in. Two vertebrae
19 were damaged. I bled from my mouth. I have a scar on the right-hand
20 side of my face from being kicked in the face with a boot and from the
21 beatings I received to my head I have suffered much pain and injury. And
22 I was especially afraid of an automatic rifle that was cocked at my head.
23 I still suffer severe headaches which I did not have previously. I lost
24 my sight. My blood pressure is very high. My capillaries have burst and
25 I have generally undergone stress. This is the basic human rights so I
1 would like to asked what international conventions they adhered to in
2 their conduct.
3 My wife was with me when I was arrested and she suffers permanent
4 consequences as well as my driver who received serious bodily harm, and
5 he took SFOR to Court and received money as remuneration.
6 I am constantly under the care and attention of doctors. I have
7 to take six pills a day. The doctors are attending to my health
8 situation. I went to the Bronovo hospital for several medical
9 examinations, and I was treated in the hospital detention facility for my
10 health problems. I was -- my health was critically jeopardised, and for
11 a time I was not able to attend the court hearings. My health situation
12 has deteriorated of late, and this can be seen from the medical
13 documents. They support that. I suffer from a very serious illness as
14 the doctors have told me, and I don't know what the outcome of that will
16 So I'm asking you now, Your Honours, is anybody responsible for
17 that kind of conduct? Will they be held responsible and accountable?
18 According to Article 7(1) I was charged with individual criminal
19 responsibility. All the relevant evidence that the Prosecution has I
20 would like to ask you to scrutinise during your appeals proceedings, and
21 I don't think they prove that I took part directly or indirectly in any
22 act of torture, persecution on political or any other grounds or any
23 other criminal acts at all which are prohibited by the Geneva
25 I am ready to accept all responsibility if they are proved true.
1 My active participation in the system of repression does not exist. I
2 did not take part in it and it has not been proved.
3 Just a few more moments, if I may, with the Court's indulgence.
4 Yesterday's statement by the Prosecutor Mr. Carmona with respect
5 to my testimony to the investigators after my arrest. Yes, it is true
6 that I was afraid at the time. I was terribly frightened. Not of my own
7 responsibility or because of any guilt on my part. I was terrified by
8 what I was put through when I was arrested, the injuries I received then
9 and inflicted on me by SFOR.
10 Mr. Carmona, I resisted all evil and the evil in -- that was
11 present in the Investigation Centre of Omarska. I received threats from
12 the Serbs. They said I was helping the Muslims. I did what I could to
13 make life better in the centre of Omarska, and in that respect things
14 have been ascribed to me that I never did.
15 Just a few more words, if I may.
16 For everything that I have said for so far, I question the
17 judgement. I refute all the charges because it was not proved that I
18 committed these acts, and I would like to ask the Appeals Chamber to
19 determine the identity between the indictment and the judgement, to
20 establish the links and to establish the truth and to acquit me and to
21 set me free from further serving my sentence.
22 I state here and now that it is a crime to convict an innocent
23 man and that there is no more terrible sentence than a sentence
24 proclaimed to an innocent man. Justice and the truth, Your Honours, I
25 think, will prevail, and it can be established, and it is up to you to do
2 I should like to thank the Appeals Chamber for their
3 understanding and for allowing me to take part in the -- my appellant's
4 brief and to present my own arguments before Your Honours.
5 Thank you once again.
6 JUDGE SHAHABUDDEEN: Thank you very much. Thank you very much,
7 Mr. Prcac. Thank you very much, Mr. Prcac.
8 Now Mr. Zigic, yes.
9 MR. CARMONA: Your Honour -- Your Honour --
10 JUDGE SHAHABUDDEEN: Would you like to address the Court?
11 MR. CARMONA: Your Honour.
12 JUDGE SHAHABUDDEEN: Oh, just a moment, Mr. --
13 MR. CARMONA: Just on a point of order. Without compounding the
14 error, about 120 lines up a mention was made of a witness, a
15 Prosecution's witness and this has to be redacted, and apart from that
16 there was also reference to another Prosecution witness which in fact of
17 course -- who is protected and this would have to be redacted.
18 JUDGE SHAHABUDDEEN: Madam Registrar, will you put that in hand.
19 THE REGISTRAR: Yes, Your Honour.
20 JUDGE SHAHABUDDEEN: It will be done.
21 Yes, Mr. Zigic.
22 THE APPELLANT ZIGIC: [Interpretation] Thank you, Your Honour. If
23 I keep to your schedule, I only have seven minutes, that's why I would
24 ask you to allow me to speak for another ten minutes, because I believe
25 that what I have to say will take at least 17 minutes, and I would be
1 very grateful if you would permit me to do this.
2 [Trial Chamber confers]
3 JUDGE SHAHABUDDEEN: Mr. Zigic, how many minutes in all would
4 that make? How many minutes in all would you be wanting?
5 THE APPELLANT ZIGIC: [Interpretation] I apologise in advance, but
6 since my case and the indictment referring to me are very voluminous, I
7 will not be requiring more than 17 minutes.
8 JUDGE SHAHABUDDEEN: That's far too much, though. What about
9 making that 12 minutes? The Court is prepared to give you 12 minutes.
10 Normally that's almost double the original estimate.
11 THE APPELLANT ZIGIC: [Interpretation] Of course I accept your
12 proposal, Your Honour, but I would like to ask the interpreters then to
13 skip item number 4 so that we would save on time. In any case, I thank
14 you very much.
15 It's very difficult to bear the burden of my first instance
16 conviction during the first instance proceedings. Unfortunately, the
17 Prosecution did not make one single step in order to determine the truth
18 and discover the true perpetrators of the crimes of which I have been
19 convicted. My defence tried several times to clarify some counts of my
20 indictment but did not find understanding on the side of the Prosecution.
21 The Prosecution brought a large number of witnesses who testified on
22 scores of killings in Keraterm and Omarska.
23 Unfortunately, to my detriment many killings were not cleared up
24 to this very day. I apologise for being so free, but I believe that the
25 Prosecution followed the line of least resistance, or they used the
1 system well. Zigic is here, so we will ascribe some killings to him
2 because the others are not accessible to us. I ask myself, is this
4 In this way, we did not establish the truth. The true
5 perpetrators of these crimes were not discovered, some of whom are still
6 walking around Prijedor today, and they are free. In all of this, I
7 fared the worst. I was convicted of crimes which were committed by other
8 people. However, what is even worse is that the Prosecution has
9 available a lot of evidence which clearly says who those people are.
10 Quite to the contrary, and we were assured of this yesterday, how the
11 Prosecution is trying to construe the theory of the killing of Drago
12 Tokmadzic with two beatings and no witness before this Chamber testified
13 on this matter.
14 And further, the Prosecution had access to all commanders of the
15 Security Service as well as the shift leaders from Keraterm and Omarska.
16 The Prosecution did not call any of them to testify of -- about the
17 events from 1992. It is quite clear that these people know who committed
18 the crimes in Keraterm and Omarska. It is quite clear that the three
19 shift leaders covered 24 hours in the camps, and it is clear that some of
20 them or all three of them know what happened. I think that the
21 Prosecution should have called in these eight people to speak about this
22 matter. However, this was not in the interest of the Prosecution, because
23 on several occasions the Prosecution has shown here that they do not care
24 much for the truth. I must tell the Appeals Chamber that the shift
25 leaders and the commanders from the Keraterm camp agreed to testify, but
1 this was prevented by the Prosecution.
2 Kolundzija Dragan, Damir Dosen, and Dusko Sikirica are who have
3 already been convicted had agreed to testify about the events in
4 Keraterm. In the meantime, they made a plea bargain with the
5 Prosecution. The accused Kolundzija Dragan told me personally in the UN
6 Detention Unit that the Prosecution expressly demanded in the plea
7 bargain that they cannot testify. Kolundzija expressed regret but said
8 that he simply did not dare to appear as a witness. What else could I do
9 than give up on counting on him as a witness?
10 But I believe that it is never too late to establish the truth.
11 So I ask the Appeals Chamber to call all the shift leaders and their
12 commanders so that they can testify about the events in the Omarska and
13 Keraterm camps.
14 I should like to mention that in the first instance court
15 proceedings, I could -- I only had Prosecution witnesses, and that is the
16 case today in the appeals process. It is a terrible for me that in
17 addition to having to prove that I did not commit certain crimes for
18 which I have been charged and convicted of I must prove who the
19 perpetrators of those crimes were. I am not in a position to prove that
20 and show that personally. All I can do is through Prosecution witnesses,
21 and this right has been withheld.
22 What I can do today is to offer the Appeals Chamber the
23 Prosecution witnesses who are appear of the circumstances surrounding the
24 killing of Becir Medunjanin. The Prosecution has supplied me with their
25 written statements, and Your Honours, I have eight Prosecution witnesses
1 testifying to Becir Medunjanin's killing. Some of these statements were
2 supplied by the Prosecution pursuant to Rule 68 during the trial itself
3 at the first instance, and other documents were disclosed to me pursuant
4 to Rule 68 once again after the judgement.
5 The Prosecution witnesses who have already testified before this
6 Trial Chamber are Oklopcic Azedin and Abdulah Brkic. The Prosecution
7 witnesses that my Defence asked for -- asked to testify before the Court
8 and the Trial Chamber are the following. (redacted)
9 (redacted) from the Tadic case, and a witness from the Tadic case which was
10 Exhibit 212 in the Kvocka case. We also have another witness, Amir
11 Cicak, who is inaccessible to us today.
12 Pursuant to Rule 115, my Defence team handed in two statements in
13 my second brief pursuant to Rule 115. They are D2 and D3, those
15 The first of these five witnesses were on the list of Prosecution
16 witnesses. The Prosecution called just two and gave up on the rest. All
17 eight of these witnesses mentioned testified to Becir Medunjanin's
18 killing. They say quite clearly who perpetrated the killing. All of
19 those eight Prosecution witnesses testified about the same individuals as
20 having been the perpetrators of that crime. None of those eight
21 witnesses mention Zoran Zigic although all of them know me. They testify
22 about certain other incidents that took place and linked to me.
23 So I appeal to the Appeals Chamber to invest all its efforts to
24 focus on those crucial testimonies.
25 Furthermore, I should like to appeal to the Prosecution to
1 reinvestigate all its evidence and to raise the indictment against the
2 real perpetrators, those who committed the crimes I have been convicted
4 Let me just give an example of the -- where the Prosecution
5 erred. The Prosecution struck from its indictment a man called Goran
6 Lajic who quite obviously killed Drago Tokmadzic as is stated in the
7 judgement itself. The conclusion is quite clear. By striking Goran
8 Lajic from the indictment, the Prosecution committed a fatal error. But,
9 having done so, it tries to put it right by putting forward a false
10 witness, Edin Ganic, who alleged that I was responsible for the death of
11 Drago Tokmadzic.
12 Now, can the Prosecution raise the indictment again? I don't
13 know. All I do know is that all legal and human norms are being violated
14 and that I was convicted for crimes over people did.
15 Your Honours, since the Trial Chamber completely ignored my
16 apologies, sincere apologies to all the victims that had suffered in that
17 unfortunate war, I would like once again to state quite clearly how I
18 have felt throughout all these years, my deepest sentiments. I
19 profoundly apologise to all victims who have been crimes committed
20 against them during the war. I should sincerely like to apologise to the
21 people towards I might have made a mistake or contributed to their
22 sufferings in any way.
23 I have come before this Tribunal of my own free will. I have
24 come to be punished for my sins, the sins of 1992. As to my sincere
25 regrets and apologies to all the victims, I spoke about this before the
1 Trial Chamber pursuant to Rule 84 bis. However, the Trial Chamber in its
2 judgement of the first instance ignored my sincere apologies and remorse,
3 and it relates to what I said pursuant to Rule 84 bis, only in the
4 passage where I am to be convicted and found guilty without mentioning
5 that my statements were given not under a solemn declaration. However,
6 where my defence relates to my statement pursuant to Rule 84 bis, the
7 Trial Chamber has ignored and states that it was not given under the
8 solemn declaration.
9 This is just a small example. There are many more significant
10 examples of things that took place during my trial, and attorney
11 Mr. Stojanovic spoke at length about this and set all this out in my
12 appellant's brief.
13 Your Honours, thank you for your patience and indulgence, and I
14 sincerely hope that what I have said will lead to a positive reaction on
15 the part of the Prosecution and that the Prosecution will do its utmost
16 to bring the real perpetrators to justice. It is never too late to have
17 justice prevail.
18 Thank you, Your Honours, for all the patience you have shown me,
19 and thank you in advance for all the efforts you're going to invest in
20 your deliberations in order to bring in the right decision on appeal. I
21 should like to take advantage of this occasion to tender a document at
22 the request of my lawyer, Mr. Stojanovic. I should like to present it to
23 the registry, hand it over to the registry.
24 JUDGE SHAHABUDDEEN: I must tell you this, that this is a
25 procedure intended to enable the appellants to speak directly to the
1 Court. It's not a procedure intended to reargue, for you to reargue your
2 case. You've got very able counsel to do that. All the evidence, all
3 the material such as the material in your hands, has already been
4 presented to the Court. It forms part of the record with the Court. The
5 Court will consider all the material. You need not trouble at this stage
6 to present any further evidence. You can just speak, and we will listen.
7 Mr. Stojanovic.
8 THE APPELLANT ZIGIC: [Interpretation] Your Honour, I should like
9 to thank you very much --
10 JUDGE SHAHABUDDEEN: [Previous translation continues]...
11 Mr. Stojanovic, yes. I ask you to take your seat while we listen to your
13 THE APPELLANT ZIGIC: [Interpretation] Once again, thank you very
14 much for that explanation. This is not a document from the case itself.
15 It is, in fact, an opinion given by the head of the Detention Unit as to
16 my conduct during the past six years.
17 JUDGE SHAHABUDDEEN: Speaking for myself, all the documentary
18 material has already been presented in the case, and we have to consider
19 the material. If new material is to be now presented, the other side has
20 to see it and has to be afforded an opportunity to comment on it. We
21 cannot do that.
22 THE APPELLANT ZIGIC: [Interpretation] Then, Your Honour, that was
23 an omission by my lawyer. It is quite simply an opinion given by the
24 head of the Detention Unit with respect to my conduct over the past six
25 years. I don't see that the Prosecution should have anything against
1 this, and I will of course let them see this document. It was given to
2 me by the registry.
3 JUDGE SHAHABUDDEEN: Mr. Prosecutor, Mr. Prosecutor, do you have
4 any objections at this stage?
5 MR. CARMONA: The Prosecution is put in a rather unenvious
6 position of not knowing what the document is.
7 JUDGE SHAHABUDDEEN: That's the problem.
8 [Trial Chamber confers]
9 JUDGE SHAHABUDDEEN: I'm afraid the Bench is against the
10 admission of this new document. Okay.
11 THE APPELLANT ZIGIC: [Interpretation] I accept your ruling, Your
12 Honour. Thank you.
13 JUDGE SHAHABUDDEEN: Yes.
14 THE INTERPRETER: Microphone, please.
15 JUDGE SHAHABUDDEEN: Now the Court has come to the end of the
16 arguments in the case. The Court has to consider what it will do about
17 the additional evidence matter which came to our notice a while ago, and
18 that we propose to do is to make a Scheduling Order in due course
19 relating to that question, and in that Scheduling Order we will also
20 stipulate the procedure which we intend to follow. That is to say, if
21 and when it becomes necessary to do so.
22 Now, subject to that, I think it remains only for me to thank the
23 parties and counsel on each side for the assistance they have given to
24 the Court and for the professionalism with which they have done their
25 work and the courtesy that they've shown to each other. Whatever
1 happened in the past is a different matter. That, as we say, is history.
2 I would also include in my expresses of appreciation a reference
3 to the registry and to our own staff and to the interpreters. We owe
4 such a great deal to the interpreters, do we not. So we thank them very
6 Now, before the Court retires to consider its verdict which will
7 be announced in due course, I would like to make a reference to
8 Mr. Carmona. I believe that this is his last case. Is that right,
9 Mr. Carmona?
10 MR. CARMONA: Yes. Yes.
11 JUDGE SHAHABUDDEEN: Word has come to the Bench that he's about
12 to leave the institution, and I would like to, on behalf of the Bench, to
13 express our appreciation for the forcefulness of his advocacy and the
14 efficiency with which he has done his work, and we are quite confident
15 that he will take his experience with him to the new position to which he
16 is going in his own country. For the rest, I give him good wishes. And
17 I'm sure I speak for all members of the bar on both sides as well, in
18 addition, of course, to speaking for my colleagues.
19 So now --
20 MR. CARMONA: I'm forever grateful, and if I may in fact respond
21 in kind.
22 I must indicate to this learned Tribunal and my colleagues that
23 it has been an immense pleasure. I have in fact appeared in the main
24 before in fact Judge Guney, Judge Pocar and myself, and it is my first
25 appearance before the other two esteemed Judges. And I must in fact
1 admit not only in fact have I learnt a lot, but I have in fact been quite
2 impressed with the after comity, the civility and affability, and most of
3 all the justice with which this Court has conducted its affairs. And I
4 say thank you very much.
5 And if I may be a bit little subjective in relation to you, Judge
6 the President, I can assure you that we in fact in the Caribbean diaspora
7 hold you in very high regard and we wish you all the best also. And to
8 the best of the Bench, all the best. Thank you.
9 JUDGE SHAHABUDDEEN: Well now, on that note, the Court will
10 withdraw to consider its verdict of which you will be notified in due
11 course. So the Court now stands adjourned sine die.
12 --- Whereupon the hearing adjourned at 12.40 p.m.
13 sine die