1 Tuesday, 19 May 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 3.05 p.m.
5 JUDGE ROBINSON: Mr. Cepic, I saw you struggling to stand. I
6 have been advised of your injury. You need not stand at any time.
7 Today we are hearing the witness Wil Fagel. The procedural
8 history in relation to this witness's evidence is known to the parties.
9 I don't have to repeat it.
10 Mr. Weber.
11 MR. WEBER: Good afternoon, Your Honours.
12 JUDGE ROBINSON: What I propose to do is to ask you to lead the
13 witness in chief, in chief, in relation to the document 1D25.
14 MR. WEBER: Your Honours, I will do my best. Understanding that
15 the nature of the opinion that's going to be elicited by Doctorandus
16 Fagel has been reviewed by this Chamber. It's a handwriting comparison.
17 Inherent in any type of comparison, a document is compared to other
18 documents, so I think that this was very well-noted by the Chamber in
19 terms of its inseparable nature of the discussion of 1D25 with the other
20 documents. If I could be allowed to then lead or present evidence as I
21 go through that comparison. I understand the Chamber's instructions.
22 [Trial Chamber and legal officer confer]
23 JUDGE ROBINSON: Mr. Weber, the examination-in-chief will be
24 confined to 1D25, bearing in mind, of course, that you will not be
25 allowed to lead any other evidence because that evidence, which the
1 Chamber has already determined, doesn't qualify as rebuttal evidence.
2 MR. WEBER: If I could please ask the Chamber a clarification.
3 Is the Chamber indicating that the Prosecution cannot lead evidence as to
4 the comparison of 1D25 with any other documents?
5 [Trial Chamber confers]
6 JUDGE ROBINSON: You can use whatever documents you provided, but
7 you can't use the P exhibits.
8 You wanted to say something, Mr. Alarid.
9 MR. ALARID: Your Honour, if I know where the Prosecution's
10 going, this is the slippery slope, is they are going to use the signature
11 comparisons from the omitted documents that were ruled as being
12 not-admissible, so they're basically --
13 JUDGE ROBINSON: [Microphone not activated].
14 Yes, Mr. Weber.
15 MR. WEBER: Your Honour, if it comes to light during the course
16 of evidence that this needs to be revisited, could we please -- just
17 because his nature of his evidence is that he is a handwriting expert, so
18 he's comparing those signatures, but could we please see how the
19 testimony unfolds?
20 JUDGE ROBINSON: I've already given the ruling on it. Let's
21 proceed. Bring the witness in.
22 [The witness entered court]
23 JUDGE ROBINSON: Let the witness make the declaration.
24 THE WITNESS: I solemnly declare that I will speak the truth, the
25 whole truth, and nothing but the truth.
1 JUDGE ROBINSON: Yes, you may proceed, Mr. Weber.
2 MR. WEBER: Thank you, Your Honours.
3 WITNESS: WILHELMUES FAGEL
4 Examination by Mr. Weber:
5 Q. Good afternoon, Doctorandus Fagel.
6 A. Good afternoon.
7 Q. Could you please introduce yourself to the Trial Chamber?
8 A. My name is Wil Fagel. I'm a forensic handwriting examiner
9 working for the Netherlands Forensic Institute.
10 Q. Could you please explain what a forensic handwriting examiner is.
11 A. A forensic handwriting examiner is an expert who --
12 THE INTERPRETER: Please slow down for the interpreters.
13 THE WITNESS: [Previous translation continued]... with known
14 writings from, for example, suspects with the purpose to assess whether
15 these handwritings or signatures have been produced by this person.
16 MR. WEBER:
17 Q. What is the Netherlands Forensic Institute?
18 THE INTERPRETER: Kindly slow down for the interpreters.
19 THE WITNESS: The Netherlands Forensic Institute is autonomous
20 agency under the Dutch Ministry of Justice which performs several kinds
21 of forensic examinations.
22 MR. WEBER:
23 Q. How long have you been a forensic handwriting examiner?
24 A. Next month, it will be 26 years.
25 Q. Doctorandus Fagel, during the course of your testimony here
1 today, it will be important that you observe a pause after the questions
2 that are being asked to you in order to allow the translators to
3 translate for other members who are present in the courtroom.
4 A. Okay. Sorry for answering too fast.
5 Q. How many handwriting comparisons have you conducted as a forensic
6 handwriting examiner over the past 26 years?
7 A. I haven't counted them exactly, but it must be over 2.000.
8 Q. Do you hold any certifications as a forensic handwriting
10 A. Yes, I have a certified by the Netherlands Forensic Institute and
11 recertified every four years to do kind of exams, every four years, and
12 I'm a member of the GFS, which is a European association of forensic
13 handwriting and document examiners.
14 Q. Have you been previously qualified as an expert before this
16 A. Yes, I have.
17 Q. The Prosecution at this time tenders the curriculum vitae of this
18 witness into evidence. It is ERN 0642-9654 through 0642-9655.
19 JUDGE ROBINSON: We admit that.
20 THE REGISTRAR: Exhibit P346, Your Honours.
21 MR. WEBER: At this time, based on the qualifications of the
22 witness the Prosecution tenders Doctorandus Fagel as an expert in
23 forensic handwriting analysis. May I proceed, Your Honours?
24 JUDGE ROBINSON: Yes, proceed.
25 MR. WEBER:
1 Q. What is a forensic comparative handwriting examination?
2 A. A forensic comparative handwriting examination is an examination
3 where questions, handwriting and/or questions, signatures are analysed
4 and compared with known samples of writing or signatures from another
5 person, some person, maybe a suspect or a witness, to assess whether the
6 questions, handwritings, or signatures have been written by this person.
7 Q. What are the phases of a forensic comparative handwriting
9 A. There are four phases. The first phase is the analysis of the
10 features of the questions and the comparison samples; the second phase is
11 a comparison of these features; The third phase is the interpretation,
12 weighing of the similarities and differences of these comparison; and
13 finally, last phase is the -- drawing a conclusion from these findings.
14 Q. What are the main categories of handwriting characteristics?
15 A. There are three main categories. The first main category are
16 general features, general handwriting characteristics; the second
17 category are layout characteristics; and the third general category are
19 Q. What are general characteristics?
20 A. General characteristics are features that concern the general
21 appearance of the handwriting, like overall slant of the writing, the
22 size of the writing, the overall line quality, the overall pen pressure,
23 et cetera.
24 Q. What are layout characteristics?
25 A. Layout characteristics with handwritten text, for example,
1 letters may refer to, for example, the word distances, width of left and
2 right margins, distances between lines of writing, and when it's about
3 signatures, it may, for example, refer to placement of the signature
4 within a preprinted box.
5 Q. What are micro- characteristics?
6 A. Micro-characteristics refer to the proportions, the size -- no,
7 sorry, the form, the shape, I mean, and the proportions of the individual
8 elements within the handwriting. When it's text, it may be letters or
9 numbers, et cetera. In signatures, it might be also other patterns than
10 the standard patterns which are in written text.
11 Q. What differences are there in a comparative handwriting
12 examination of a signature as opposed to handwritten text?
13 A. In general, when comparing signature we look at -- signatures we
14 look at the same features as when we look at -- when we compare
15 handwritten text, only in -- when comparing signatures, some features are
16 more important, like line quality, pen pressure, because signatures are
17 more often subject of a simulation than handwritten text.
18 Q. What is a bona fide signature as compared to a mala fide
20 A. A bona fide signature is a signature which have been written by
21 the signatory and maybe normal general signature, but also an alternative
22 signature which he might use for special purposes. And a mala fide
23 signature is, for example, simulated signature, copied signature by
24 someone else than the signatory, or it may also be a so-called
25 autoforgery where someone makes his own signature in such a way that it
1 looks like a simulation so to be later able to deny that he wrote the
2 signature. Alternatively, people may -- when forging someone's
3 signature, if they don't know what it exactly looks like, they might just
4 fantasise the signature, a so-called fictitious signature. Also, the
5 owner of the signatory signature may also write another signature than he
6 usually does so as to later to deny that he wrote the signature.
7 Q. Is the forensic comparative handwriting examination method you
8 described accredited by any institutions?
9 A. Our method and procedures are accredited by the Dutch Council For
11 Q. Did you attach a document describing this accredited methodology
12 to your report as an appendix?
13 A. Yes, we did.
14 Q. Is this the method of comparative handwriting examination that
15 you used in this case in relation to your 8th of October, 2008, report?
16 A. Yes, it is.
17 MR. WEBER: At this time, the Prosecution tenders the witness's
18 8th October, 2008
19 ERN 0642-8808 through 0642-8820.
20 MR. ALARID: Your Honour.
21 JUDGE ROBINSON: Yes, Mr. Alarid.
22 MR. ALARID: We would object based on the ruling of the Court
23 that the report contains analysis of which the evidence the underlying
24 analysis is based on has been ruled inadmissible by the Court.
25 Therefore, the report that incorporates that inadmissible evidence should
1 also be inadmissible.
2 [Trial Chamber confers]
3 JUDGE ROBINSON: We won't allow the report in evidence. Proceed.
4 THE INTERPRETER: Still please slow down for the interpreters.
5 MR. WEBER: Your Honours, may I lead at this time? May I lead
6 the witness at this time?
7 JUDGE ROBINSON: May you lead --
8 MR. WEBER: The witness at this time.
9 JUDGE ROBINSON: You mean ask him leading questions?
10 MR. WEBER: That's correct, Your Honour.
11 JUDGE ROBINSON: If it relates to issues that are not
12 contentious, yes.
13 MR. WEBER:
14 Q. Doctorandus Fagel, you received materials to conduct a forensic
15 handwriting comparison on the 15th of September, 2008; is that correct?
16 A. That's right.
17 Q. The materials that you received for examination included five
18 documents with questioned signatures and nine documents with known
19 signatures; is that correct?
20 A. That's correct.
21 Q. With respect to the --
22 THE INTERPRETER: Please slow down for the interpreters. Thank
24 MR. WEBER:
25 Q. With respect to the five documents with questioned signatures,
1 you performed a forensic mutual handwriting comparison; is that correct?
2 A. That's correct.
3 MR. ALARID: Objection, Your Honour.
4 JUDGE ROBINSON: Mr. Alarid, yes.
5 MR. ALARID: The five questioned in reference, one, lack of
6 foundation; two, that would be my understanding that these would be the
7 inadmissible matters that we've already been ruled on.
8 MR. WEBER: Your Honours --
9 JUDGE ROBINSON: Is that so, Mr. Weber?
10 MR. WEBER: Your Honour, he conducted a handwriting comparison.
11 He has to compare 1D25 to some other --
12 JUDGE ROBINSON: Yes, but we have already ruled that we are not
13 allowing it. You must respect the Trial Chamber's decision.
14 MR. WEBER: Very well, Your Honour.
15 Q. Doctorandus Fagel, it is possible to conduct a mutual handwriting
16 comparison of one document unless you can compare it to other documents?
17 A. I'm not sure whether I understand your question, but I can only
18 compare two or more signatures. I cannot compare one signature with
19 itself, of course.
20 Q. So if you have a signature on a document, the specific document
21 that you were given with respect to this matter that ends in ERN 568 -
22 which for the record is 1D25 - are you unable to offer an opinion here
23 before the Tribunal unless you are able to reference the other signatures
24 on the other documents that you compared it to?
25 A. I cannot give an opinion on just one signature if I cannot
1 compare it to anything else, if that's what you mean.
2 Q. With respect to this case, you did review multiple signatures; is
3 that correct?
4 A. Yes.
5 Q. And you were able to formulate opinions to a reasonable degree of
6 certainty; is that correct?
7 A. That's correct.
8 MR. ALARID: Objection, refers to an analysis that would
9 incorporate inadmissible evidence. May I voir dire the witness?
10 JUDGE ROBINSON: Sorry?
11 MR. ALARID: May I voir dire the witness, Your Honour?
12 MR. WEBER: Your Honour --
13 MR. ALARID: From a foundational perspective, I believe that the
14 witness can offer an opinion using known signatures and a single
15 signature. I think if the Prosecution asked him that question, he might
16 get a different answer.
17 MR. WEBER: Your Honours, this is -- Mr. Alarid will have plenty
18 of opportunity to cross-examine this witness. At this time, the
19 Prosecution is eliciting evidence about the very nature of what
20 Doctorandus Fagel did in this case.
21 JUDGE ROBINSON: Yes, proceed.
22 MR. WEBER:
23 Q. Could you please explain what a mutual handwriting comparison is?
24 A. What we -- when we compare a questioned signature, let me state
25 first it is possible to compare one questioned signature with a number of
1 known or reference samples to give an opinion whether or not this single
2 questioned signature was or was not written by the same person. But if
3 we have more questioned signatures, we first perform a mutual comparison
4 of these questioned signatures to see whether the assumption that these
5 have all been written by the same person is justified. If they are very
6 consistent, then we take them as one group of signatures to compare with
7 the reference signatures.
8 Q. Is that what you did in this case?
9 A. That's right.
10 Q. Okay. Could you please explain the observations that you made --
11 MR. ALARID: Objection, Your Honour.
12 MR. WEBER: I haven't even asked the question.
13 MR. ALARID: I think it's obvious that you're going to mutual
14 examination if the --
15 JUDGE ROBINSON: Let us hear the question first. What is the
17 MR. WEBER:
18 Q. Doctorandus Fagel, did you group four signatures together for
19 mutual comparison against known signatures in this case?
20 JUDGE ROBINSON: Just a minute. Don't answer the question. I'd
21 like to consult.
22 [Trial Chamber and legal officer confer]
23 JUDGE ROBINSON: The position is as follows: Mr. Weber explained
24 that the Prosecution gave Mr. Fagel nine documents. He can compare 1D25
25 with the five documents that are not the four Prosecution documents that
1 have been ruled inadmissible. So you can proceed on that basis.
2 MR. WEBER:
3 Q. Were you provided with a document that contained an unknown
4 signature ending in ERN 568?
5 A. Yes, I was.
6 Q. What did you do with that document?
7 A. I compared it with the other questioned signatures.
8 Q. After you compared it to the other questioned signatures, what
9 did you do with those signatures?
10 A. I noticed that -- that they have a very similar general design,
11 and I noticed that they were in such a way similar that they looked to me
12 almost identical.
13 MR. ALARID: Objection, Your Honour. I believe that this is
14 exactly what we're getting into again. He is referring to the mutual
15 analysis, not the supposed known samples that were provided by the
16 Prosecution. These are exactly what the Court's ruled on that he has
17 just testified to. Move to strike.
18 JUDGE ROBINSON: I wish you wouldn't say move to strike. We
19 don't have that procedure here, Mr. Alarid.
20 The question that you asked, Mr. Weber, does it relate to the
21 five documents that are not the four Prosecution documents which we have
22 ruled inadmissible?
23 MR. WEBER: Your Honour, because of the identical nature of all
24 four of the signatures, he took -- he made a transparency and compared
25 that --
1 JUDGE ROBINSON: You cannot --
2 MR. WEBER: But that's --
3 JUDGE ROBINSON: You cannot ask him for the comparison with the
4 documents that we have ruled inadmissible.
5 MR. WEBER: But it's upon that transparency that he created --
6 MR. ALARID: Objection, the attorney is testifying.
7 JUDGE ROBINSON: You can't do that, and you must respect the
8 Court's ruling. If you are not prepared to respect it, then there are
9 other measures to adopt.
10 MR. WEBER: Of course, Your Honour. It was that transparency
11 that he then compared to the known signatures.
12 JUDGE ROBINSON: Don't re-argue the point. Just proceed.
13 MR. WEBER:
14 Q. With respect to the specific document that ends in ERN 568, did
15 you make any observations with respect to the stamp on that document?
16 A. I only got a copy of this document, so I couldn't observe whether
17 the stamp was made first before the document was signed or after it.
18 Q. You mentioned that you got only a photocopy of that document.
19 Can the possibility of tampering be excluded if only photocopies are
20 available for analysis?
21 A. No, it clearly cannot.
22 Q. Did you have occasion to conduct a comparison between the
23 questioned signature for which ERN 568 was a part of with the known
24 signatures provided to you?
25 A. Yes, I did.
1 Q. How did you conduct this comparison?
2 A. I first look at the general -- at the design of the signature,
3 whether it was similar or not, and though there are - let me see - they
4 have some similarity in overall design. There are also a number of
5 differences between this questioned signature and the referenced known
6 signature of Perisic.
7 Q. I'd like to ask you a couple questions about the known signatures
8 before we discuss those differences.
9 With respect to the nine known documents with the signature of
10 Risto Perisic, were there original signatures available for your analysis
11 of the known signatures?
12 A. Yes.
13 MR. ALARID: Objection, lack of foundation. No evidence has been
14 led as to how these are known signatures.
15 JUDGE ROBINSON: Lead that evidence, Mr. Weber.
16 MR. WEBER:
17 Q. Doctorandus Fagel, you were provided with documents which you
18 took to be known signatures of Risto Perisic; is that correct?
19 A. Yes, that's how we usually call reference signatures. It's just
20 a terminology. We call them known signatures.
21 Q. And among these documents, you had original signatures for
23 A. There were two original signatures, yes.
24 Q. Based on the availability of originals, were you able to -- well,
25 were there any indications that show any signs of tampering with the
1 known signatures?
2 A. No, in the -- there were no signs of tampering in the known
3 signatures or reference signatures, if you want, as far as I could tell.
4 Q. Did the reference signatures show a sufficient degree of
5 complexity for analysis?
6 A. They did, yes.
7 MR. WEBER: Could the Prosecution please have the lower portion
8 of ERN 0642-8811 on the screen. This is page 4 of the witness's report,
9 which begins at ERN 0642-8808.
10 MR. ALARID: Objection, Your Honours. The report's been held
12 MR. WEBER: Your Honour, I'm just showing -- there's a figure in
13 it that he did a comparison. I'm eliciting testimony relating to that
15 [Trial Chamber confers]
16 JUDGE ROBINSON: Go ahead.
17 MR. WEBER: If the Prosecution could please have page 4 of the
18 lower portion of this document. Specifically, could we please zoom in on
19 the figure that's depicted at the lower portion of the page.
20 Q. You are now being shown the lower portion, figure 1, on your
21 8th October, 2008
22 A. In top you can see a questioned signature, and the lower two
23 signatures are two of the reference signatures.
24 Q. Could you please describe the characteristics that you observed
25 that were different between the questioned signature and the known
1 signatures in this figure?
2 A. If you look at the questioned signature, you can see it has a big
3 loop in the top of the first element which is absent in the reference
4 signatures. Furthermore, the questioned signature has a P-shaped element
5 at about one-third of the length of the signature, and the downstroke of
6 this element retraces the upstroke. In the known signatures, there's a
7 clear space between the downstroke and the upstroke. Furthermore, the
8 oval part of the P shape in the questioned signature is practically
9 absent in the known signatures. Then there are a number of wave-like
10 movements in the middle of the questioned signature. These differ in
11 shape from those in the known signatures. In the questioned signature,
12 they are more like arc gates, whereas in the known signatures they are
13 more like garland-form shapes. Then there's a long stretch, a cross-bar
14 type of line in the top at the end of the questioned signature which is
15 absent in the known signatures. And finally, the questioned signature
16 has a down stroke at the end, whereas the known signatures ends with a
17 more upward movement. So these are the most apparent differences between
18 the signatures.
19 MR. WEBER: The Prosecution at this time would tender a saved
20 copy of this figure into evidence.
21 JUDGE ROBINSON: We'll admit that.
22 THE REGISTRAR: Exhibit P347, Your Honours.
23 MR. WEBER:
24 Q. What were your findings with respect to the comparison of the
25 questioned signature and the known signatures?
1 A. My findings were that -- my findings did not support the
2 proposition that the signature -- that the questioned signature was
3 originally written by Risto Perisic or by the producer of the reference
4 signatures by that matter.
5 Q. Did you come to conclusion as to whether or not the questioned
6 signatures were a bona fide or mala fide signature? Without stating that
7 opinion at this time, did you come to that conclusion?
8 A. Whether the questioned signatures were --
9 Q. Whether the questioned signatures were bona fide or mala fide?
10 MR. ALARID: Objection, Your Honour, to the use questioned
11 signatures. That would be referring to inadmissible evidence.
12 MR. WEBER: Your Honour, the Prosecution plans on respecting the
13 Chamber's --
14 JUDGE ROBINSON: Please go ahead. Go ahead.
15 MR. WEBER:
16 Q. Were you able to form an opinion as to whether or not the
17 questioned signatures were bona fide or mala fide? Just a simple yes or
18 no, please.
19 A. Yes.
20 Q. Are you able to provide that opinion unless you are able to
21 discuss the other unquestioned signatures?
22 A. No.
23 MR. WEBER: No further questions.
24 JUDGE ROBINSON: Mr. Alarid.
25 Cross-examination by Mr. Alarid:
1 Q. Is it Dr. Fagel?
2 A. Yes.
3 Q. Okay.
4 A. It's pronounced like Fahel, but it doesn't matter.
5 Q. Fahel is fine. I can pronounce that. Thank you. Now, let's
6 talk a little bit about what you used as the comparison signatures and
7 otherwise believed to be bona fide. Can we do that first?
8 A. Yes.
9 Q. And who provided the supposed bona fide signatures to you?
10 A. It was provided by the -- do I have to name the person?
11 Q. No, no. Just the agency would be fine.
12 A. The ICTY.
13 Q. And in being provided those signatures, were you aware that the
14 Defence of Milan Lukic had been attempting to subpoena Risto Perisic to
15 come to The Hague
16 A. No, I had no information whatsoever about this case. I didn't
17 even know the name of the accused by that time.
18 Q. Okay. And in referring to the supposed bona fide signatures,
19 were you given any background or foundational information as to when the
20 signatures were written, in what context, how?
21 A. No, only, of course, there are some dates mentioned with the
23 Q. Okay.
24 A. So that's known information. Otherwise, I had no information on
25 how they were produced.
1 Q. Now, obviously, in a best-case scenario, you would want to have
2 the actual author of the alleged signatures present to give numerous
3 samples; correct?
4 A. Yes, but it's -- if the questioned signatures have been produced
5 several years ago, then when you ask someone to -- several years later to
6 produce a number of signatures, especially for the investigation, he
7 might change his signature, or there might have been changes in the
8 signature during these years.
9 Q. Well, yeah, because I was digging through some old paperwork, and
10 I dug out a driver's licence I had signed right out of high school, and
11 my signature has totally changed between my adult signature and high
12 school. Is that uncommon for signatures to change over time?
13 A. Maybe between your -- when someone is younger. When he is still
14 in high school and later, there may be strong differences, but during a
15 normal adult lifetime, normally signatures don't change too much.
16 Q. Okay. But there can be fluctuations over time; correct?
17 A. There can be some fluctuations, yes.
18 Q. And some of those fluctuations can also be -- because of the
19 physical abilities of the person changed. They can be signing that day
20 with an injury or not feeling well. There can be other things that can
21 affect the signature on a particular day; correct?
22 A. Yes.
23 Q. And with regards to the supposed bona fide signature, like I
24 said, it would be best for you to have the person here to sign a few
25 times to even compare against what otherwise is considered bona fide;
2 A. No. We prefer to have signatures which have been produced about
3 the same time as the questioned signature, so-called contemporary
5 Q. And but for the information provided by the Office of the
6 Prosecutor, did you do any independent research to establish when those
7 purported bona fide signatures had been produced?
8 A. No, nothing. Only, of course, the dates which were mentioned
9 with the signatures, I assumed these were correct.
10 Q. Now, do you read Cyrillic?
11 A. No. I can read a little bit, but ...
12 Q. Well, even though the names above the purported signatures are in
13 the Latin alphabet, would it surprise you that the signature is in the
14 Cyrillic alphabet?
15 A. No, I know it's like that.
16 Q. Now, the Prosecution asked you sort of a leading question in the
17 sense that: "Did you see any sign of tampering of the known or reference
18 signatures?" What tampering would you expect to find in the known
19 signatures in response to the OTP's question?
20 A. If signatures are written -- not written fluently but, rather,
21 hesitating with a lot of pen lifts, for example, and -- no, not
22 reiterated - sorry, I don't know the words - then this might indicate a
23 forgery, but I didn't see any of these indications.
24 Q. What if them are all forgeries? All the ones that are meant as a
25 reference, what if they're all forgeries by the same author?
1 A. Then we have a wrong comparison material. But when I get a
2 number of reference signatures, I assume that they are true reference
3 signatures from the person, alleged person.
4 Q. Now, obviously, if the alleged person were here and identified
5 those, well, that would be added evidence to bolster your opinion;
7 A. If they would admit that these signatures were his?
8 Q. Yes.
9 A. Yes.
10 Q. Okay. Now, just to kind of lay a little bit of a foundation, my
11 grandfather was a local politician for many years, and he had had a stamp
12 of which to sign cheques for the grocery store and also to sign his
13 official documents --
14 JUDGE ROBINSON: Mr. Weber.
15 MR. WEBER: Objection, the relevance of this about Mr. Alarid's
16 grandfather to this case.
17 MR. ALARID: Well, it was to lay a little foundation.
18 JUDGE ROBINSON: I think you know Mr. Alarid is anecdotal --
19 MR. ALARID: Yes. Thank you, Judge.
20 JUDGE ROBINSON: -- if nothing else, so we will allow him that.
21 MR. ALARID:
22 Q. Now, how does a possibility of a stamp play into your analysis?
23 A. Well, in the first place, what we examine is whether the
24 signatures were written by a person, not whether they were stamped by the
25 same person. And even if a stamp was used, you might find some
1 differences in inking when you make several stamps, and I didn't find any
2 difference between the signatures I examined in the density of the ink.
3 Q. Well, the reason I ask you about a stamp, is a stamp, when we
4 create one for the printmaker or the stampmaker, you sign your signature,
5 and then the printmaker makes a block of it; correct?
6 A. Yes.
7 Q. So a stamp is sort of like a driver's licence picture. It's sort
8 of as good as the time you made it, and you're stuck with it; is that
9 fair, to use the anecdote?
10 A. I don't understand your question.
11 Q. Well, meaning if I write my signature -- I know I need to prepare
12 a stamp some day, and I write my signature for the printmaker, that is
13 the print block that goes. I may have to sort of live with it from that
14 day forward.
15 A. I don't know whether you have to --
16 Q. Okay. Well, to change it, I got to get a new stamp made.
17 A. Yes, if you want to use a stamp to sign.
18 Q. Just if I don't like my driver's licence, I got to go back and
19 get a new picture.
20 A. Right.
21 Q. Okay. And so you don't have any idea if the questioned signature
22 was part of a stamp?
23 A. No.
24 Q. And is it possible that persons in political roles or
25 administrative roles use stamps in order to effectuate some of their
1 daily business?
2 A. That would be possible, yes.
3 Q. And the use of the stamp is also a good way for a small-town
4 politician or maybe a police chief in charge of the Visegrad to avoid
5 responsibility or have plausible deniability later.
6 JUDGE ROBINSON: He testified to that, Mr. Alarid?
7 MR. ALARID: I'm sorry?
8 JUDGE ROBINSON: How can he testify to that?
9 MR. ALARID: Well, he --
10 JUDGE ROBINSON: Does he know anything about that?
11 MR. ALARID: Well, maybe what reasons do people want their
12 handwriting to --
13 JUDGE ROBINSON: Please ask another question.
14 MR. ALARID: I'll tie it into something relevant, Your Honour.
15 THE INTERPRETER: Could speakers please slow down.
16 MR. ALARID:
17 Q. You talked about autoforgery. What's an autoforgery again?
18 A. When someone on purpose changes his own handwriting. Sometimes
19 they will, say, disguise his own signature so as to later deny that he
20 wrote the signature.
21 Q. Okay. Now, might someone in questionable practices, i.e., maybe
22 possibly committing war crimes, might want to use an autoforgery for
23 certain things?
24 JUDGE ROBINSON: How can he testify to that?
25 MR. ALARID: Your Honour, I guess it would be --
1 JUDGE ROBINSON: He is a handwriting expert.
2 MR. ALARID: Okay. You're right, Your Honour. Maybe I'm going
3 too far afield in terms of -- that's for argument in submissions more
4 than it is for this witness to speculate on.
5 Q. So the fact of the matter is, though, is you can't exclude the
6 use of a stamp for Risto Perisic for the questioned signature; correct?
7 A. I cannot exclude it, no.
8 Q. And other than being told that the signatures that were the
9 reference signatures are actual bona fide, you've done no research to
10 actually verify that.
11 A. I have to read this question. No.
12 Q. That's correct?
13 A. Yes.
14 Q. Okay.
15 MR. ALARID: No further questions, Your Honour.
16 JUDGE ROBINSON: Yes, Mr. Weber.
17 Re-examination by Mr. Weber:
18 Q. Mr. Alarid just asked you a number of questions about the
19 bona fide signatures. Were you able to determine whether or not the
20 signature which is on document 5 -- ending in ERN 568 was a bona fide or
21 mala fide signature?
22 MR. ALARID: Objection, calls for speculation; no foundation was
23 laid as to how he knew the bona fide signatures were as such.
24 JUDGE ROBINSON: He can answer the question. Answer the
1 THE WITNESS: I could determine not on its own -- when I assessed
2 the signature on its own, I cannot give an answer, but when I relate it
3 to my observations in respect to the other signatures, I could determine
5 MR. WEBER:
6 Q. Is the signature that's on document ending in ERN 568 a mala fide
8 A. I think so, yes.
9 Q. What is the basis of that opinion?
10 A. That there is -- the signature exactly matches the other three
12 MR. ALARID: Objection, Your Honour. This is where I'd say to
13 strike, so I don't know what you'd prefer me to say, Your Honour.
14 JUDGE ROBINSON: Yes, you can't go into that. We have been
15 through that already, Mr. Weber.
16 MR. WEBER: Your Honour, the Prosecution would tender the report
17 of Doctorandus Fagel in evidence and ask the Chamber to consider it just
18 for the limited purpose as it relates to document 1D25.
19 MR. ALARID: And we would object, Your Honour, so much as that's
20 not how he conducted his analysis; therefore, there's no way to properly
21 extricate that argument from his report.
22 [Trial Chamber and legal officer confer]
23 JUDGE ROBINSON: We won't admit the report.
24 MR. WEBER:
25 Q. Sir, you were asked a number of questions about the known
1 signatures that were provided to you. Is it correct there were nine of
3 A. Actually, two of the copied documents were copies of the two
4 documents which I had an original, so there were totally seven reference
6 Q. You were provided with nine documents --
7 A. Right.
8 Q. -- but you used only seven for the purposes of your comparison.
9 A. That's right.
10 Q. And the documents that were copies, was that 0024-7267 and
11 0024-7268 --
12 A. That's right.
13 Q. -- were copies of 0064-1896 and 0064-1897?
14 A. That's right.
15 Q. And were the other documents that you used for comparison with
16 the ERNs 0297-1870 --
17 A. Yes.
18 Q. -- 0297-1906 --
19 A. Yes.
20 Q. -- 0297-1920 --
21 A. Yes.
22 Q. -- 1297-1924 --
23 A. Yes.
24 Q. -- and document 0324-6754 through 0324-6757?
25 A. That's correct.
1 MR. WEBER: For the record, that last document that I read out,
2 which was 0324-6754 through -57, is in evidence as Exhibit P317.
3 The Prosecution would tender into evidence the explanation of the
4 methodology that's attached to the expert's report, which is at 0642-8816
5 through 0642-8820.
6 MR. ALARID: Just for clarification, Mr. Weber, does this
7 methodology incorporate the mutual comparison?
8 MR. WEBER: Mr. Alarid is in possession of this ERN. It does not
9 include that. This is the explanation of his methodology. Instead of
10 leading substantial evidence today regarding additional methodology, I
11 believe it's most efficient to just tender this document.
12 JUDGE ROBINSON: We will admit that.
13 THE REGISTRAR: Exhibit P348, Your Honours.
14 MR. WEBER: The Prosecution would tender the individual page,
15 which is appendix 2 to the witness's report, which is 0642-8815. This is
16 the page that shows the known signatures only that were used in the
17 witness's comparison.
18 JUDGE ROBINSON: We'll admit that.
19 THE REGISTRAR: Exhibit P349, Your Honours.
20 MR. WEBER: The Prosecution would also tender the seven --
21 actually, the nine documents used for his comparison, not for the truth
22 of what the documents purportedly say, but as it relates to the witness's
23 expert opinion here today, with the exception being P317, which is in
25 JUDGE ROBINSON: Yes.
1 THE REGISTRAR: Exhibit P350, Your Honours.
2 MR. WEBER:
3 Q. With respect to the known signatures that were provided to you,
4 were you able to determine whether or not there was a normal variance in
5 these signatures?
6 A. Yes, there was.
7 Q. And with respect to any time an individual signs a document, is
8 there some degree of variation in how they sign the document?
9 A. Yes, this is so-called natural variation. Every time you sign a
10 signature, there are always differences between two signatures.
11 MR. WEBER: Nothing further, Your Honour.
12 [Prosecution counsel confer]
13 MR. WEBER:
14 Q. With respect to the seven signatures that were known signatures,
15 is there any indication that these documents are not from the same
17 A. No. They are very consistent, and the assumption that they have
18 been written by the same person is supported by the fact that they are
19 fluently written, show natural variation, and are very consistent.
20 Q. And there are no signs of autoforgery or anything of the like in
21 those signatures?
22 A. No.
23 MR. WEBER: Nothing further, Your Honour.
24 JUDGE ROBINSON: Thank you, Mr. Weber.
25 Dr. Fagel, that concludes your evidence. We thank you for coming
1 to the Tribunal to give it. You may now leave.
2 THE WITNESS: Thank you.
3 [The witness withdrew]
4 JUDGE ROBINSON: Mr. Cepic, I understand that you indicated that
5 you would have your comments -- I believe we should be in private session
6 for this.
7 [Private session]
11 Pages 7155-7156 redacted. Private session.
11 [Open session]
12 THE REGISTRAR: We are in open session, Your Honours.
13 JUDGE ROBINSON: I believe we had indicated that closing
14 arguments would be one hour each.
15 MR. ALARID: Subject to our pending motion, Your Honour, we asked
16 for three hours in the motion to enlarge as well as asking for Thursday.
17 JUDGE ROBINSON: We won't allow three hours, Mr. Alarid. We
18 won't allow three hours, Mr. Alarid.
19 Yes, Mr. Groome.
20 MR. GROOME: Thank you, Your Honour.
21 Prosecution Closing Statement:
22 MR. GROOME: Your Honours, last July the trial of Sredoje and
23 Milan Lukic began. Last week, the Prosecution filed its final trial
24 brief summarising the evidence that is now before the Chamber and setting
25 out its case of how that evidence establishes beyond a reasonable doubt
1 the guilt of both accused. The brief details evidence of the killing of
2 the men along the Drina River
3 out the burning to death of over a hundred civilians in the houses on
4 Pionirska Street and in Bikavac; the killing of Hajra Koric; and the
5 mistreatment of civilian detainees at Uzamnica camp.
6 By now, you will read this brief, and I will not attempt to
7 summarise the Prosecution's's case in the limited time I have today. I
8 will use my hour to address some of the points made in the final briefs
9 of Sredoje and Milan
10 The Prosecution's case has gathered all the available witnesses
11 and documents relevant to this indictment. Taken together and viewed as
12 a unitary corpus of evidence, it establishes without doubt the guilt of
13 both accused. Witnesses, now scattered across Europe, most having never
14 spoken with each other since they each precariously escaped Visegrad,
15 were brought to The Hague
16 recounted their harrowing ordeals, describing the crimes of both accused.
17 They corroborate each other and are in turn corroborated by the available
18 physical and documentary evidence. They are reliable and credible
20 Their evidence also compellingly establishes the intent of the
21 two accused to commit these crimes, their intent most evident in the
22 Pionirska and Bikavac fires. In spite of the preparations made by
23 Sredoje and Milan Lukic for the Pionirska fire and in spite of all
24 efforts to kill those desperately trying to escape, eight people did
25 survive the Pionirska fire. The six who are still living testified in
2 Having fallen short of destroying every member of the Kurspahic
3 family as Milan Lukic had asserted to Court Witness number 1, he and
4 Sredoje Lukic would learn from their mistakes and take extra steps to
5 secure the house in Bikavac before setting another group of Muslims
6 ablaze two weeks later, both of them barricading the front entrance with
7 a steel garage door.
8 The Bikavac fire was carried out with the precision and the
9 effectiveness that comes with premeditation. They nearly succeeded in
10 killing all inside. Zehra Turjacanin, the sole survivor, escaped that
11 inferno, driven by a desire to save her brother, her neighbours, and her
12 friends from a similar fate.
13 This is my only opportunity to make submissions regarding the
14 final trial briefs of both accused, and while I trust the Chamber will
15 carefully analyse all arguments and adopt only those that pass careful
16 scrutiny, I do want to respond to some of the points that are raised in
17 those briefs.
18 Both Defence counsel raise as a central reason why you should
19 acquit both accused is the inconsistencies that they have identified in
20 the final trial briefs. They suggest to you that such inconsistencies
21 indicate you cannot rely on the evidence of these witnesses. Your
22 Honours are experienced jurists and have sufficient time on the bench to
23 know that several witnesses viewing an event from different perspectives
24 will invariably have differences between their accounts. Even witnesses
25 who recount their evidence on several occasions can be expected to have
1 minor differences between these retellings.
2 JUDGE ROBINSON: Just a minute. Mr. Cepic.
3 MR. CEPIC: I apologise for interrupting, but we have a problem
4 with translation in B/C/S, namely the translator/interpreter are late for
5 two paragraphs in transcript, so I kindly ask my learned friend so speak
6 a little bit slower.
7 JUDGE ROBINSON: Mr. Groome, you would have heard that.
8 MR. GROOME: Yes, Your Honour. I haven't heard anything from the
9 -- I'm wearing the headset so I can be mindful to the interpreters. If
10 there is a problem, I certainly would ask them to advise me to slow down.
11 I will continue at I think what is a slow pace, but ...
12 JUDGE ROBINSON: Proceed at a slightly slower pace.
13 MR. GROOME: The inconsistencies which Defence place great
14 significance are simply a function of human memory and a function of
15 different people seeing something from different perspectives. As VG-013
16 said at page 1089 of the transcript:
17 "All of us who were there in that group, nobody can say exactly
18 the same thing because they haven't seen all of them, the same things.
19 One saw one part. Another saw another part."
20 This astute comment is precisely the point that the Chamber must
21 keep in mind when reviewing the evidence, and it is exactly what the
22 Chamber has in this body of evidence, the independent accounts of all of
23 the relevant witnesses.
24 The large group of Kurspahics involved in the Pionirska fire were
25 spread out over a significant area. The column was broken and
1 disconnected as it made its way from the square in Visegrad to the Memic
2 house on Pionirska Street. The Memic house had about 70 people spread
3 out into several rooms on two floors. Some victims were already inside
4 the Omeragic house while others were still trying to wake their children
5 in the Memic house. Yet the Defence would have you view all of the
6 events of this day as if the witnesses were sitting a theatre watching
7 the same performance and suggest that any difference in recollection is
8 evidence of dishonesty. The witnesses have recalled honestly what they
9 saw. I submit that any inconsistencies are an indication of their
11 Compared with the evidence of some of the Defence witnesses,
12 identical recollections of insignificant events 16 years ago, it is that
13 kind of consistency which is the hallmark of fabrication of witnesses who
14 have discussed their testimony among themselves prior to coming into this
16 The Defence's own expert Dr. Hough explained very clearly that
17 inconsistencies are expected and of themselves mean little. He expressed
18 his view that three of the Prosecution witnesses were traumatised and
19 that he would not be surprised that the trauma would manifest itself in
20 their testimony. He said that with trauma victims, it is often "very
21 difficult emotionally to recall and report on trauma experiences." It is
22 stressful experience to pull up those memories. Dr. Hough said:
23 "The degree to which that stress is heightened by anxiety ... the
24 recall process can be subject to some distortion."
25 Events can be reported in slightly different order and time
1 sequences. He never suggested that these recollections were inherently
2 unreliable or that inconsistencies are an indicator of unreliablity. He
3 also said what many of us already know to be true, that due to the number
4 of years that have passed, it would be unrealistic to expect perfect
5 consistency. Even measured by the yard-stick of a Defence expert, the
6 Prosecution witnesses' accounts have the ring of truth and together form
7 a compelling body of evidence.
8 I would now like to address the issue of identification. As
9 Judge Robinson observed early in this case, the essential issue in the
10 case is identification. The Prosecution final trial brief sets out in
11 detail each of the witnesses, the survivors who knew one or both of the
12 accused prior to the day they perpetrated these crimes. Defence
13 witnesses from Visegrad as well as Prosecution witnesses are uniform in
14 their assessment that the size and custom of Visegrad was such that
15 people knew each other, if not always by name, very often by sight.
16 Prosecution witnesses described in detail their basis for knowing the
17 accused and recognising them at the scene of the crime. Some confirmed
18 their recognition of the accused in court as well.
19 Both Defence briefs erroneously link the ability of a witness to
20 describe a perpetrator with their ability to recognise a perpetrator,
21 suggesting that inconsistent descriptions indicate an unreliable
22 recognition. As the Prosecution brief points out, there is an important
23 difference between our ability as humans to recognise someone and our
24 ability to describe someone. They are two different skills, and while
25 most people are easily able to reliably recognise people they know,
1 describing them is often something they do poorly.
2 Children, infants, long before they can describe what their
3 mother or father looks like, they are able to recognise them.
4 Recognition is an essential instinctual skill that enables us to quickly
5 identify those who present a danger and those who provide safety. If
6 there is any doubt in your mind as to the difference between these two
7 skills, consider this simple exercise. Have each one of you and your
8 staff write down on a piece of paper my height, my weight, my hair
9 colour, age, eye colour without prior discussion. If you do, I'm
10 confident that no two will be the same, even if I were to stand here
11 while you wrote your descriptions, and in fact there might be broad
12 discrepancies between the descriptions, despite having seen me for a
13 period of nearly a year under the bright lights of this courtroom. Yet
14 every day when I appear before you, you instantly recognise me, and if we
15 encounter each other years from now, you will again recognise me. You
16 will have no difficulty recognising me, but you may have difficulty
17 correctly describing me.
18 There were approximately 35 police officers in Visegrad prior to
19 the conflict. Why is it unreasonable, as the Defence of Sredoje Lukic
20 suggests, for witnesses to have known Sredoje Lukic, either by sight or
21 by name? Consider our own everyday experience here. There are over
22 150 different people working in the security department of this Tribunal.
23 While we may come to know some by name, most we do not, yet we recognise
24 our security staff when we encounter them each day here, in this
25 courtroom, at the check-points downstairs. We recognise them when we
1 meet them in the store on Saturday or see them on the queue waiting for a
2 movie. Our innate ability as humans to recognise others we know is an
3 accurate and reliable skill and one the Chamber can confidently rely
5 The witnesses in this case were continually encountering
6 Sredoje Lukic over the course of their lives, much longer than our
7 relatively short time here at the Tribunal. VG-38 knew Sredoje Lukic
8 well, despite not knowing his name, and the fact that he first learned
9 his name the night of the fire does nothing to detract from the
10 reliability of his recognition.
11 The Defence have raised a number of issues related to the
12 credibility of individual witnesses. I want to address some of them here
13 briefly. The first witness is MLD-025. A witness who testified with
14 respect to the Drina River
16 JUDGE ROBINSON: Closed session.
17 [Private session]
11 Page 7165 redacted. Private session.
8 [Open session]
9 --- Recess taken at 4.29 p.m.
10 --- On resuming at 5.15 p.m.
11 JUDGE ROBINSON: May I apologise for the delay. I had to spend
12 more time that I had anticipated dealing with a particular matter.
13 Mr. Groome.
14 MR. GROOME: Thank you, Your Honour.
15 Your Honour, before the break I was beginning to talk about some
16 of the specific issues raised with respect to the particular witnesses.
17 I'd like to continue that with the discussion now of VG-115. Both
18 accused vehemently challenge the evidence of VG-115, and challenged they
19 must because she provides very damaging evidence regarding both accused.
20 VG-115 is a Serb woman, the only Serb civilian from Visegrad who had the
21 courage to come forward to describe what happened to her Muslim
22 neighbours who were ethnically cleansed from the town, a woman who has no
23 motive against either accused. She testified she hardly knew
24 Milan Lukic, and she testified for the affection she had for
25 Sredoje Lukic prior to the outbreak of the conflicts.
1 The Defence despite their best efforts have been unable to
2 establish with any evidence that she has a motive for falsely accusing
3 either accused. In fact, the evidence of her motives are contained on
4 pages 722 to 23 of the transcript where she said:
5 "I have come here to prove the truth, and that truth is a small
6 thing, namely what was it that those people ..." referring to the
7 Avengers "... did in the city of Visegrad. I'm not actually defending
8 the Muslim people or the Serbian people for that matter. I'm just here
9 to tell what I've seen and what I've experienced."
10 And in that attempt to discredit her, the Defence went out and
11 took photographs from the veranda of the Smajic house where she was
12 during the Pionirska fire. They absolutely confirm VG-115 and
13 demonstrate her credibility when she described what she could see from
14 her balcony. She said she saw smoke and flame. She never claimed to see
15 the house itself. The photographs in evidence make clear that it is
16 exactly what she would have seen, the smoke and fire rising from the
17 inferno in the Omeragic house.
18 The Prosecution submits that with everything that the Chamber now
19 knows about this group, it is clear that VG-115's evidence is truthful,
20 accurate, and corroborated in substantial part. The Defence's suggestion
21 that her evidence should be summarily dismissed based upon the
22 insufficiently reasoned opinion of the Vasiljevic Chamber is not
23 warranted by the evidence before this Chamber. This Chamber has a far
24 greater body of evidence and is in a far better position to evaluate the
25 credibility of VG-115 and the other Prosecution witnesses than the
1 Vasiljevic Chamber.
2 The Sredoje Lukic Defence takes issue with her description of a
3 sock on top of Sredoje Lukic's head on the afternoon of the Pionirska
4 fire. While she did recall him covering his face with this sock during
5 the Bikavac fire, she says something different with respect to the
6 Pionirska fire. She simply says he was wearing it on his head, covering
7 his shaved head. You will recall his head had been shaved while he was
8 in captivity. A close examination of VG-115's testimony with regard to
9 the sock is fully consistent with this view.
10 Most telling, at the very point where VG-115 was attempting to
11 explain this during her testimony, which is the portion relied on by the
12 Sredoje Lukic Defence in their brief at paragraph 155, VG-115 was
13 interrupted repeatedly by Defence counsel. Paragraph 155 states:
14 "VG-115 was unable to provide any reasonable and satisfactory
15 explanation..." for how she could identify Sredoje Lukic while wearing a
16 stocking on his head.
17 In fact, VG-115 was prevented from explaining. She was
18 interrupted three times on page 781 alone preventing her from fully
19 describing the way Sredoje Lukic wore this sock on his head. In fact,
20 the manner in which VG-115 continues to mention the sock in the remainder
21 of her testimony demonstrates that she is describing him wearing the sock
22 on his head covering his hair, not as a full head sock over his whole
23 head and face, as suggested by the Defence.
24 When asked to identify the accused at the end of her testimony,
25 she says, referring to the two accused:
1 "Mr. Milan Lukic, wearing a black suit; next to him, Mr. Sredoje
2 Lukic, who used to be bald and wear a sock over his head but now he has
3 plenty of hair."
4 The Sredoje Lukic Defence attempt to discredit VG-013's evidence
5 by claiming that she did not see him during the Pionirska fire, and that
6 Edhem Kurspahic did not know Sredoje Lukic, so she could not have heard
7 Edhem identify Sredoje as he escorted people into the Omeragic house.
8 With respect to the Edhem Kurspahic, the Defence contrast the
9 evidence of VG-013 with VG-018's cursory remark that Edhem did not know
10 Sredoje Lukic. Edhem was of the same generation as Hasib Kurspahic and
11 was a life-long resident of the small village of Koritnik
12 dispute that Sredoje Lukic was a frequent visitor to Koritnik, both while
13 on patrol and to visit his good friend Huso Kurspahic. Edhem would have
14 had the same opportunity to see Sredoje Lukic when he came to the small
16 VG-018's response to the Defence counsel that Edhem Kurspahic and
17 Sredoje Lukic did not know each other was a cursory conclusion. It was
18 not based on Edhem telling her. It was an assumption on her part. The
19 weight of the evidence before the Chamber strongly suggests that in this
20 patriarchal society, the men of this village knew each other and would
21 have known Sredoje Lukic, a prominent member of the community who
22 regularly visited and patrolled the village.
23 The claim that VG-013 did not see Sredoje Lukic is without merit.
24 At paragraph 40 of the Defence brief, they claim that VG-013 "clearly
25 testified that she did not see Sredoje Lukic on the 14th of June, 1992
1 In the full context of her evidence, it is clear that she
2 physically saw him during the day, and that when the Lukic group returned
3 at night and hurriedly moved the Kurspahic family in the Omeragic house,
4 VG-013 did not see him but was told by Edhem Kurspahic that Sredoje Lukic
5 was behind them.
6 The Defence highlights that VG-013 apparently does not mention
7 Sredoje Lukic in a video statement or a video interview admitted in this
8 trial. It must be noted that this was an interview that was edited and
9 is not a full account of what VG-013 said. In fact, the focus of the
10 interview seemed to be something other than the crime at Pionirska
12 Please read the questioning about the video at transcript
13 page 1130. Mr. Cepic places a transcript in front of VG-013 to see if
14 she can authenticate it. It becomes clear that she is unable to read it.
15 He then puts a single sentence from the transcript to her, a sentence
16 limited to her saying that she was from Koritnik, that she had two sons,
17 a daughter, and a husband, and they left Koritnik because people are
18 dead. Nothing about the fire. She agrees, the tape is tendered, and he
19 never puts to her as required under 90(h) his proposition that she did
20 not mention Sredoje Lukic. Read the trial transcript. While the tape is
21 being tendered, VG-013 is trying to ask questions about the tape; when
22 was it made, where is it from? This is not evidence that she did not see
23 Sredoje Lukic at Pionirska Street.
24 The Defence also failed to note that long before this tape,
25 VG-013 identified Sredoje Lukic as one of the perpetrators in a written
1 statement from 1995 now in evidence as 1D29. We also know that she
2 identified Sredoje Lukic as one of the perpetrators to Huso Kurspahic
3 shortly after the fire.
4 The Sredoje Lukic final trial brief places emphasis on what it
5 characterises as striking evidence of VG-089 and is comprehensive and
6 detailed description of Milan Lukic and the three men who were with him
7 on the 14th of June, which corroborates the evidence of VG-101.
8 The Sredoje Lukic Defence suggests that VG-089 is credible and
9 that his observations of Milan Lukic and the other men with him on the
10 day of the fire are reliable and credible. The Prosecution agrees with
11 the Sredoje Lukic's position on this point. VG-089's observations of
12 Milan Lukic in Visegrad on the day of the fire are indeed reliable. The
13 Prosecution also agrees with the Sredoje Lukic Defence that the evidence
14 of VG-101 and VG-089, two people who never met, corroborate each other.
15 Where we disagree and where the Defence argument fails is in its
16 assertion that if Sredoje Lukic was not in the car with VG-089 at the new
17 bridge in town, he couldn't have later been at Pionirska Street. The
18 argument makes the erroneous assumption that all of the perpetrators of
19 the Pionirska fire were in the car with VG-089 and the two other boys who
20 were killed, and we all know that this is simply not the case. VG-078
21 recalled approximately ten men all together being involved in the fire
22 that night. Hasib Kurspahic and VG-115 provide the names of some of
23 these other individuals.
24 When VG-101 stated that she could only see four people, she was
25 referring to a specific four people that she could see at a specific
1 point in time, when she was being brought from the Memic house to the
2 Omeragic house. There is no reasonable view of the evidence suggesting
3 that there were only four members of the Lukic group present that night.
4 In their final brief, Sredoje Lukic Defence make much of VG-038's
5 response to a single confusing question and ask the Chamber to draw an
6 unjustified inference from his answer. The question and answer are as
8 "Q. What do you know about my client, Sredoje Lukic, is only
9 from that night, not from before?
10 "A. Right."
11 Is completely unclear from the context of the question what the
12 words "what you know about my client" were intended to refer to.
13 The Defence suggests that this is evidence that VG-038 did not
14 know Sredoje Lukic before the Pionirska fire. The evidence makes clear
15 that VG-038 did know Sredoje Lukic by sight, as a police officer. He
16 learned his name the day of the Pionirska fire.
17 The Sredoje Lukic Defence ends its discussion of VG-038's
18 evidence with a misstatement of the evidence. At paragraph 81 of their
19 brief, they claim that VG-038 testified he could not recognise the men
20 who came in the evening because it was dark and because he did not dare
21 to look at them. He said no such thing. In fact, in response to the
22 question that is now in Prosecution Exhibit P044, Vasiljevic transcript
23 at page 1377, he said:
24 "Q. Were you able to see who it was who returned at this time?"
25 VG-038 answered:
1 "Yes. The same four men who searched us."
2 VG-024, the Sredoje Lukic Defence urges the Chamber to disregard
3 VG-024's evidence regarding seeing Sredoje Lukic at the end of June in
4 Visegrad because she was not -- because that assertion was not contained
5 previously in her statement. VG-024 gave a reasonable explanation for
6 this at page 3216 of the transcript. When asked why she never mentioned
7 it, she answered:
8 "No one ever asked me about it. Yesterday when I was told that
9 it was claimed that he was not in Visegrad at the time, I was a bit
10 disappointed because I know that -- personally that he and his family
11 were in Visegrad in May, June. This prompted me to say that I knew him
12 and to state that he was in Visegrad throughout that time."
13 The Defence take issue with the fact that she couldn't recall
14 whether she saw him specifically on the 27th or 28th of June. The fact
15 is, she said he and his family were living in Visegrad up until the day
16 she left, and the day she left was the 29th of June.
17 The Sredoje Lukic Defence offers a number of arguments that the
18 evidence of VG-035 is unreliable. None of these arguments is persuasive.
19 First, the Sredoje Lukic Defence suggests that VG-035 marked the
20 wrong location when asked to mark the Meho Aljic house on a photograph.
21 The Chamber will recall from Ms. Turjacanin's testimony that the
22 Meho Aljic house was immediately behind the Sadikovic house. The Alic
23 house is no longer there, so he was asking the witness to mark a spot on
24 the ground where a house once stood in a picture taken from several
25 hundred feet up in the air. If the Chamber examines P101 and P102, it
1 will be clear that VG-035 marked the open area immediately next to the
2 Sadikovic house, simply on the west side of the house instead of the
3 south side of the house; I submit, a completely insignificant error given
4 the passage of 16 years, the absence ever the Aljic house, and the fact
5 that the witness was being asked to mark an aerial photograph, a type of
6 evidence that often causes confusion with witnesses.
7 The Sredoje Lukic Defence has also attempted to impugn VG-035's
8 evidence by making erroneous statements about the effect of
9 Court Witness 002's evidence. VG-035 and Court Witness 002 were together
10 on the morning of the Bikavac fire when Milan and Sredoje Lukic entered
11 their home. VG-035 identified both accused as being there, while
12 Court Witness 002 only recognised Milan Lukic.
13 The Defence state that Court Witness 002 knew Sredoje Lukic
14 because he used to rent an apartment in her house, and, therefore, the
15 fact that she did not recognise him as the second man contradicts
16 VG-035's evidence.
17 This assertion misstates Court Witness 002's evidence.
18 Court Witness 002 stated that Sredoje Lukic lived in the house before she
19 married into the family. She never said that she knew him, and there is
20 no reason to assume that she did.
21 The Sredoje Lukic Defence declined to ask her any questions when
22 it was offered, saying at transcript page 7084:
23 "This has nothing to do with our particular case."
24 They certainly could have inquired whether she knew Sredoje
25 Lukic, but did not. The only evidence in this trial is that she knew
1 Sredoje Lukic lived in the house she moved into before she married her
2 husband and moved into that house. While such a statement may suggest
3 her husband may have known him, it does not suggest in any
4 interpretation, however broad, that she knew Sredoje Lukic herself.
5 In our initial review of the Milan Lukic final trial brief, we
6 have found it often misstates evidence. The time constraints we are
7 working under today do not permit a comprehensive listing of these
8 misstatements. The Prosecution will therefore list just an example or
10 One of these misstatements relates to VG-035. In paragraph 113
11 of their brief, the Milan Lukic Defence asserts that VG-035 testified
12 "... as to a blond Milan Lukic being the one that committed crimes she
13 testified about."
14 This is a misstatement of the evidence. During her testimony in
15 precisely the very pages cited by the Defence, VG-035 said that
16 Milan Lukic had dark brown hair. That's at transcripts page 1719. In
17 addition, in her statement, which the Defence also cites as Exhibit 1D44,
18 she also clearly stated that Milan Lukic had "dark brown, short hair."
19 One point with respect to hair colour: The Defence make the
20 point that there are differences in how witnesses have described the hair
21 colour of Milan Lukic. Please don't overlook the evidence of VG-142, the
22 Serbian official who interviewed him as found on page 4 of his statement
23 in evidence of P144.
24 VG-142 recalled in that statement that when they arrested
25 Milan Lukic, when he came to him, he had a fur cap that Milan Lukic
1 described as a traditional Chetnik cap. He went on to describe how
2 Milan Lukic had some of his hair highlighted. VG-142 thought it looked
3 ridiculous and asked Milan
4 of his girlfriend.
5 You will also recall VG-094's evidence that on the day Milan
6 Lukic stopped her family in the Visegrad square, one of the people in
7 Milan Lukic's car was a woman she recognised as a hairdresser in the
8 town. There is credible evidence before the Chamber that Milan Lukic
9 was, for whatever reason, colouring his hair at the time. I submit
10 variations between witnesses seeing him at different times regarding his
11 hair colour may also be due to his dying his hair during this period.
12 The Sredoje Lukic Defence makes a great deal about the fact that
13 Huso's father Hasib did not mention Sredoje as a perpetrator of the
14 Pionirska fire during his video-taped interview in July 1992. Hasib was
15 not reunited with Huso until January of 1993, but they then discussed the
16 events and perpetrators a number of times. Hasib was clear that Sredoje,
17 who he knew well, was one of the main Pionirska perpetrators, and he left
18 his son Huso the solemn task of telling what happened at
19 Pionirska Street
20 Why he did not mention Sredoje Lukic's name in the interview some
21 days after the fire? Recall Huso Kurspahic's evidence that he destroyed
22 his reports about the fire in 1993 because he feared the Bosnian Serbs
23 would get them. He believed they would know who had identified
24 perpetrators in Visegrad, and this would endanger those people.
25 When Hasib gave that statement, he had just fled Visegrad knowing
1 that the Lukic group was actively trying to find him and kill him.
2 Although Hasib is not here to tell us why he didn't mention them by name,
3 it is reasonable to infer that he did not do so because he was afraid.
4 As soon as he was safely with his son, he gave his son a full list of the
5 people who perpetrated the fire. There is no reasonable explanation as
6 to why Hasib would later fabricate Sredoje's involvement in the crime
7 when he knew him so well and was so friendly with him.
8 Throughout their submissions, the Defence have implicitly asked
9 the Trial Chamber to analyse the evidence in this case in a highly
10 artificial manner. Specifically, the Defence have asked the Chamber to
11 look at the evidence of each witness in isolation and ask itself whether
12 the evidence of that one witness, standing alone, is sufficient to prove
13 the guilt of the accused beyond a reasonable doubt. The Defence prefer
14 this artificial method of analysis because it allows them to avoid the
15 fact that these witnesses, separated from the day of the crimes in most
16 cases, corroborate and reinforce each other's evidence. The Prosecution
17 evidence when examined in its entirety clearly establishes the guilt of
18 the two accused.
19 The Chamber must analyse each element of the evidence in this
20 case in light of the trial record as a whole. The totality of evidence
21 in this case paints a picture of the events upon which the indictment is
22 based, and this picture is clear and certain when all of the evidence is
23 viewed together.
24 The Limaj Appeals Chamber cited approvingly a lesson from the
25 Limaj Trial Chamber:
1 "It is the cumulative effect of the evidence, i.e., the totality
2 of the evidence bearing on the identification of an accused, which must
3 be weighed to determine whether the Prosecution has proved beyond a
4 reasonable doubt that each accused is a perpetrator as alleged."
5 When all of the evidence in this case it considered in its
6 totality, its cumulative effect is a clear and compelling picture of the
7 crimes perpetrated by both accused.
8 Both briefs suggest that the Prosecution witnesses are lying
9 about who the perpetrators were while failing to explain what possible
10 motive they could have to lie. We have seen time and time again during
11 this trial the extraordinary character of the women of Visegrad; women
12 who endured unspeakable crimes so that their children might survive;
13 women whose quick thinking and strength saved their children; and women
14 whose last act on this earth was a failed attempt to protect their
15 children from the flames. These women of incredible strength and
16 integrity literally tempered by fire did not come to this Tribunal to
17 falsely accuse anyone. They came before you and testified about the
18 people they recognised, and they candidly admitted that there were some
19 perpetrators who they simply did not know.
20 Not only has there been no demonstrated motive for them to
21 fabricate anything, but there has been compelling evidence that where
22 there may have been a motive to fabricate, none succumb to it. The
23 survivors of Pionirska spoke about their life-long neighbours forcing
24 them from their homes, ransacking their possessions before their very
25 eyes. In their minds, these are the people who began the ordeal that
1 cost them so very much. Yet despite this, none of the survivors placed
2 these people at the fire. None of them suggest they had any direct
3 involvement in the fire.
4 I submit that this is proof that they have not fabricated
5 anything. If they were inclined to fabricate who the perpetrators were,
6 they would have placed these people there and not Milan and certainly not
7 Sredoje Lukic, someone they had no animosity toward, but actually had
8 affection for. They have placed Sredoje and Milan Lukic there because
9 they were there.
10 Even those who died in the fire, the question arises again, why
11 would they say it was the Lukics who were there if it was not true? The
12 voices of the victims who died in Pionirska Street fire speak loudly and
13 credibly through those that survived, yet the Defence maintain that you
14 cannot rely on these witnesses. I did not choose these witnesses; fate
15 chose them. Perhaps there were other people in the Pionirska or Bikavac
16 fires with better memories, better eyesight, people who could have told
17 you the precise height and weight of each of the perpetrators. Fate
18 chose the survivors, not the Prosecution. My duty as an international
19 Prosecutor is to bring those who survived and their evidence before you,
20 and although it presents far greater challenges than in a domestic
21 criminal trial, I don't ask for any diminishment of my burden to prove
22 the guilt of these two men beyond a reasonable doubt.
23 These witnesses also present special challenges for you who will
24 have to adjudicate this case. Some of these witnesses by their own
25 admission have limited education, are sometimes confused on minor
1 details. Some are irreparably traumatised, and their trauma is still
2 obvious to us 16 years later. But that is not, as is suggested, a reason
3 to dismiss their evidence.
4 You as international criminal judges were selected especially to
5 adjudicate these cases and have the experience necessary to discern the
6 truth, to evaluate the evidence from witnesses still suffering the
7 effects of terrible crimes. If you acquit one or both of the accused,
8 you must do so not because of who they are, not because of their palpable
9 brokenness. If you acquit one or both of the accused, it must only be
10 because you come to the conclusion that you do not believe them. And I
11 submit that a careful analysis of their evidence, the lack of any reason
12 for them to fabricate their account, the personal cost testifying has
13 exacted on them, when you take everything into consideration, the only
14 conclusion possible is that their evidence establishes the guilt of both
16 In keeping with the conduct of the Milan Lukic Defence --
17 THE INTERPRETER: Please slow down for the interpreters. Thank
19 MR. GROOME: Yes.
20 In keeping with the conduct of the Milan Lukic Defence over the
21 course of this trial, their brief makes miriad of unsubstantiated
22 allegations against the Prosecution and myself in particular. This is in
23 keeping with the pattern of similar conduct over the course of the trial
24 in which not only the Prosecution, but the Trial Chamber, the Registrar,
25 the governments of Bosnia-Herzegovina and Serbia have all at some point
1 had serious allegations cavalierly thrown at them. I regret that they
2 have enjoyed the freedom to do this. It is now five months since I filed
3 a request before the Chamber requesting that the Milan Lukic Defence be
4 directed to either substantiate their allegations or withdraw them.
5 I will not devote any time to these allegations now other than to
6 say that despite the Chamber granting the Milan Lukic Defence every
7 opportunity to investigate and substantiate their claims, granting nearly
8 every request they made for information, for contact details of people
9 they believed would prove their spurious claims, none of these people
10 have been called to testify.
11 One of them was VG-031. I cited simply as one of several
12 examples. Despite the allegations regarding him, despite being given the
13 opportunity to call him, they now claim in their brief that the Chamber
14 denied them the ability to call him as a witness, something clearly
15 contradicted by the Chamber's decision of the 13th of March, 2009
16 allowing him to be called. But he wasn't called, and somehow others are
17 to blame.
18 The end result has been that the Defence has chosen not to call
19 any evidence substantiating any of the allegations they made against the
20 Prosecution, against the Chamber, against the Registrar, and against
21 Bosnia-Herzegovina and Serbia
22 during this trial is against Milan Lukic and his Defence team, some of
23 which came from a former Defence witness himself.
24 I expect the Milan Lukic Defence closing will follow their
25 opening, a long litany of slanderous, unsubstantiated statements. I will
1 have no opportunity to reply. I ask the Chamber to insist that any
2 allegations be supported by evidence. Do not let this Chamber be misused
3 as a platform for slander.
4 As I conclude my remarks, I would like to thank the witnesses and
5 their families. I know that for most, their testimony here re-opened
6 deep wounds. Their willingness to revisit these painful memories was an
7 essential contribution to the truth. In particular, I would like to
8 thank those women who described vicious, terrible attacks knowing that
9 this Chamber would not be considering charges related to those attacks.
10 I would also like to thank the government of Serbia who provided
11 relevant evidence it had in its possession and made available a
12 government official to testify.
13 I would also like to thank the current police in Visegrad who on
14 several occasions facilitated visits to the crime scenes by myself and my
15 staff. I hope that such cooperation is a sign that the Visegrad police
16 is once again a professional organisation protecting the legal rights of
17 all Visegrad citizens. I hope both of these examples of cooperation are
18 evidence that the Tribunal is realising its goal of fostering
19 reconciliation in the region.
20 In my final few minutes, I would like to address you on the issue
21 of sentence. There is a line from Khaled Hosseini's book The Kite Runner
22 that says:
23 "There's only one sin, only one, and that is theft. Every other
24 sin is a variation of theft. When you kill a man, you steal a life. You
25 steal his wife's right to a husband, rob his children of a father."
1 Viewed in those terms, it's incalculable what the two accused
2 have taken from Visegrad. The magnitude of their theft can never be
3 calculated. We will never know how Meliha Memisevic's life changed the
4 day she watched Milan Lukic murder her father in cold blood. We will
5 never know what would have become of the 2-day-old infant burned alive in
6 the Pionirska fire. She would now be looking forward to her 17th
7 birthday in a few weeks. We will never know the contributions she would
8 have made to her community, to our world. What they stole from the
9 individual families, from the Visegrad community, from us as a human race
10 cannot be ascertained.
11 Someone once posed a question to me whether I ever calculated the
12 years of human lives taken in the Pionirska and Bikavac fires. How many
13 years of human life were taken? It is a surprisingly simple yet stark
14 calculation to make. The average life expectancy of a person in the
15 former Yugoslavia
16 when she die d in Pionirska. Ten years of her life were taken. Most of
17 the Bikavac victims we know nothing about other than Ms. Turjacanin's
18 recollection that the Aljic house was filled mostly with young mothers
19 and children.
20 But only considering the victims of the two fires we know and
21 have evidence about their age, just considering them alone, the number is
22 staggering: Over 3.000 years of human life lost in those two fires.
23 What the two accused destroyed in June of 1992 is far beyond
24 their capacity to repay. Spending the remainder of their lives
25 incarcerated is simply a nominal token toward the loss they occasioned.
1 Criminal theorists have long considered that one of the important
2 functions of punishment is general deterrence; sending a message to
3 potential offenders to deter them should they consider perpetrating
4 similar crimes. If you find the accused guilty for the Pionirska or
5 Bikavac fires or both, I ask the Court to seize the opportunity to send a
6 clear, unequivocal message to those who might consider similarly
7 egregious crimes, those who are apt to similarly exploit the vulnerable
8 and in the chaos of conflict.
9 Use your judgement and sentence to make clear three things: One,
10 if you perpetrate crimes like this, you will be pursued and you will be
11 found. You will be extradited from your hiding place and brought to a
12 court where you will be held accountable; two, you will be tried fairly,
13 no matter your conduct, no matter how the seriousness of the allegations
14 against you. You will have a full and a fair trial; and three, if you
15 are found guilty of such crimes against the world's most vulnerable, no
16 mercy will be shown. You will be given the severest of sentences.
17 There must be no question of the International Community's
18 resolve to vigorously pursue and hold responsible those who commit crimes
19 such as these during the conflict.
20 If this Chamber finds the accused guilty of the Pionirska and
21 Bikavac fires, the Prosecution recommends that it hand down a sentence
22 that ensures that the accused spend the remainder of their lives
23 incarcerated, the most severe sentence within your power.
24 Your Honours, my work on this case is now concluded. The
25 Prosecution has fairly laid before you all of the evidence available
1 related to the indictment against Sredoje and Milan Lukic. Every person
2 who survived these crimes and is still alive has been brought before you.
3 In addition, all other witnesses with relevant evidence have also
4 testified. You now have it all for your consideration. The evidence
5 clearly and compellingly establishes the culpability of both Sredoje and
6 Milan Lukic beyond reasonable doubt. It is now for the Chamber to
7 carefully consider it and adjudicate the indictment against them. I wish
8 the Chamber wisdom in this important task.
9 Thank you.
10 JUDGE ROBINSON: Thank you, Mr. Groome.
11 Mr. Alarid.
12 MR. ALARID: Your Honour, may we take a brief recess to use the
13 restroom? We have an hour left, but I would be thinking about that and
14 not talking to you.
15 JUDGE ROBINSON: You want to go to the restroom?
16 MR. ALARID: Yes, Your Honours.
17 JUDGE ROBINSON: All right. We'll take a break for 10 minutes.
18 MR. ALARID: Thank you, Your Honour.
19 --- Break taken at 5.58 p.m.
20 --- On resuming at 6.12 p.m.
21 JUDGE ROBINSON: Mr. Alarid, I remind you that your application
22 for three hours was not granted. It's one hour. You may begin.
23 MR. ALARID: Your Honour, we need the PowerPoint to be switched
24 on the screen for your benefit, Your Honour, and we've prepared copies
25 for the parties.
1 And, Your Honour, before I begin -- before I begin, Your Honour,
2 I'd like to make a request to the Chambers. Mr. Milan Lukic had prepared
3 a brief statement of which he'd like to read to the Court, understanding
4 that the Prosecution would normally not want this because it's -- I'm
5 sure they would say he's allowed to testify without cross-examination.
6 He would like to say a few things on his own behalf in closing, and I
7 assure the Court everything he wrote would stand by the decorum and the
8 respect due the Chamber and proceedings. And so if you would beg that
9 pardon, I'm making that request on behalf of Mr. Lukic right now.
10 JUDGE ROBINSON: I don't have my rules here. I thought we were
11 beyond that stage.
12 THE INTERPRETER: Would it be possible for the interpreters to
13 have a copy of this statement and of other documents, please.
14 JUDGE ROBINSON: Mr. Groome, do you have any views on this?
15 MR. GROOME: I'm not sure -- it's not provided for in the rules,
16 Your Honour, and it seems that for him to now --
17 [Trial Chamber and legal officer confer]
18 JUDGE ROBINSON: Mr. Alarid, what we suggest is that you proceed
19 now, and we will make a decision on that overnight.
20 MR. ALARID: Thank you, Your Honour.
21 JUDGE ROBINSON: I find it's a little unusual. Doesn't mean I
22 won't allow it, but I need to think about it.
23 MR. ALARID: Thank you, Your Honour. I appreciate the
24 consideration. So does Mr. Lukic.
25 Defence for Milan Lukic Closing Statement:
2 MR. ALARID: I think as Mr. Groome said, this has been a long and
3 arduous road we started. I'd first like to thank the Chamber for being
4 patient with my ignorance of the procedures and the nuance of this
5 Chamber. I'd like to thank all the court staff and everyone who has put
6 up with my level of disorganisation and lack of functionality in this
7 arena. And I'd even like to thank the Prosecution; although we've seen
8 -- not always seen eye to eye, I believe that there has been a high level
9 of disclosure, albeit in mass quantities at times. I've been impressed
10 by the levels of candour at times that has come through the pleadings,
11 even though frustrated the ability to present it under the restraints of
12 the court.
13 I'd like to start off my closing submissions, Your Honour, with
14 some quotations that mean a little bit to me and kind of mean a little
15 bit to me in hopes of looking at this case and taking tongue and cheek a
16 little bit, but in taking a quote from Eleanor Roosevelt which I felt
17 resonated with me, is: "Do what you feel in your heart to be right, and
18 you'll be criticized any way. You'll be dammed if you do and dammed if
19 you don't." That's important, Your Honour, because I think that that
20 resonates both with the choices I've made in handling this case as well
21 as the difficult decisions that you have before you as a concerted group
22 of people that has the most difficult demanding sorting-throughs of the
23 facts that I can imagine. And although this case was relegated to a
24 level 1, not knowing the difference, I think this is the most difficult
25 of cases.
1 I quote to Longfellow because: "If we could read the secret
2 history of our enemies, we should find in each person's life sorrow and
3 suffering enough to disarm all hostility." I think that's important
4 because unless you really look at all of these people and their in their
5 gentlest, in their difficulties, in their where they come from, it's very
6 difficult for us especially in the first world to relate to them. And I
7 think that none of us have had the sorrow to have gone through what all
8 of these people went through. It's a point of which I've only begun to
9 scratch the surface with myself.
10 And I take a quote from Bridge Over the Drina, because I think it
11 really goes to what's happened in this case, upon my opinion, and that's:
12 "The common people remember and tell of what they are able to grasp and
13 what they are able to transform into legend." I think that's important
14 because all of these ordinary and simple folks of which I lump Mr. Lukic
15 into have a very limited set of sophistication of which to approach, I
16 think, the big picture in this case.
17 And I quote Mr. Marley only because this has been a hard-fought
18 fight, and I believe that what I have been doing in honour is to uphold
19 the rights of Mr. Lukic despite the allegations which when I first met
20 this case, Your Honour, were horrendous. When I first read the articles
21 about Mr. Lukic, I shuddered and I wondered what I was doing getting on a
22 plane to come over here. And with regards to that, though, I'm proud of
23 the job we've done, and I wish we could have done more.
24 I cite to Judge Hunt and his trepidations about the completion
25 strategy simply because I think that that was part of this case. It's a
1 necessary evil that has made it difficult at times to prosecute every
2 angle, as Mr. Groome stated, and I wish I had had more time.
3 I cite to Judge Wald because, with all due respect to the
4 Chamber, we had a discourse many months ago, Judge Van den Wyngaert,
5 where you said I'm not a jury, and I'd like to think that we all are.
6 The minute the evidence closes and you go back in there and you've made
7 your decisions as judges, you've decided what's in and what's out, and
8 when you go back there, I ask that you simply look at all the evidence,
9 and let's decide whether or not there's reasonable doubt. Even if you
10 think Mr. Lukic is guilty of something, the important thing is did the
11 Prosecution prove beyond a reasonable doubt what they did in these
12 indictments, not everything else.
13 I'm using this, this is something I use in jury trials back home,
14 and I don't mean to offend the intelligence of the Court, only that this
15 is illustrative of how difficult the burden beyond a reasonable doubt is,
16 how lofty a principle it is that set such a high bar on the Prosecution.
17 And with all due respect to the Prosecution, I feel that at best they've
18 presented here is a preponderance of the evidence case, where we can
19 actually flip the coin maybe and decide whether Mr. Lukic is guilty or
21 But reasonable doubt isn't of itself according to the uniform
22 jury instruction of my jurisdiction which is proof so convincing that you
23 would rely on it without hesitation in the most important of your own
24 affairs. That's a tough one because even though we can be pretty darn
25 sure, especially with all the spurious allegations that are tangential to
1 Mr. Lukic's case, it is still beyond-a-reasonable-doubt of evidence that
2 we must apply to these counts. I ask you to reverse roles with everyone,
3 and I do this in respect to Mr. Jerry Spence who I work with back in the
4 States, is his method of teaching trial skills is that the lawyers must
5 explore their case, explore their witnesses, explore their clients by
6 doing as much as internal soul-searching as possible, as much internal
7 psychodrama of which we can stand to try and get into the skin of the
8 players of our case and hopefully find the truth.
9 This is a little bit of edification of what we believe the OTP
10 has put at us constant levelling of accusations of malfeasance against
11 us. They've thrown unindicted cases at you which we believe were
12 unsubstantiated, and we believe that the OTP has treated this Court very
13 much like a jury, attempting to sway its opinion, not based on the
14 quality of the evidence, but about the quantity of the accusations.
15 I believe this is how the OTP wants you simply to see my client
16 and Mr. Cepic's client. They want you to see him in this sterile
17 courtroom, this environment that whether or not we put it on paper what
18 the standard is, there is very much an appearance and a feeling of guilt
19 if you sit in those chairs. There is absolutely nothing like being
20 accused, and if you could find some place in your own lives where you've
21 been falsely accused of something, maybe inconsequential in the grand
22 scheme of things, but make yourself remember how you that made you feel,
23 and you'll only begin to understand.
24 You know, this case has transformed over time, and the
25 Prosecution has changed the way they've presented their case because at
1 the beginning you would have sworn -- and by the indictments that have
2 been handed down out of Visegrad, you would swear that Milan Lukic,
3 Mitar Vasiljevic, and Sredoje Lukic were the architects of Visegrad, that
4 no one else was doing anything bad in town but these guys, and yet where
5 are the leaders of Visegrad? Where is Savovic? Where is Perisic? The
6 Court issued subpoenas. They were not responded to. So in thanking the
7 government of Serbia
8 sure these witnesses came here.
9 I think it's important because the Prosecution has been
10 back-pedalling on their presentation as to the level of authority and/or
11 control that Milan Lukic had, much less now Sredoje Lukic as a last-ditch
12 attempt to save their case.
13 I ask you to look at this in the portens, and I'll try not to go,
14 is why a site visit would have been good. You've seen the overhead of
15 Bikavac so many times, Your Honour, and I can't tell you enough how
16 misleading that aerial photo is. Bikavac is a hill-side neighbourhood,
17 and yet in all the photographs it appears to be a pastoral valley. It's
18 actually -- the entire town, I think to get a sense of the layout is
19 important for understanding the nature of the allegations.
20 So I start here with a map, a precise and military map, showing
21 Rujiste and marked up through one of our witnesses, and at the
22 22 kilometres, anyone that wanted to go to Rujiste to Visegrad, half of
23 that would be on a dirt road. Half of it is above snow line, and I would
24 actually address this to Judge David only in so much that he remembers
25 the mountains of New Mexico, the north of near Chama and Brazos. You go
1 to Visegrad, and you will see this kind of place, and the people are
2 similar. They are ethnically segregated. They are humble, and yet they
3 are fiercely loyal. These people remind me of northern New Mexico, and
4 their country mirrors it almost exactly. And so I came, and it was only
5 until I saw this places that I sort of understood them a little bit if
6 you've ever been to Mora and you try to go into the grocery store and
7 you're not from there and you don't speak Spanish, you may not get
8 served. These people are insular and insulated in a similar way.
9 This case is about, for me, the son of Mile and Kata, born the
10 6th of September, 1967, in Rujiste municipality. I ask you decide
11 whether he is a war criminal or a scapegoat, a leader or a follower.
12 To me, Milan
13 mother and his sister Dragina. He is the gentleman with always an arm
14 around him or an arm around someone else. In every photograph we showed
15 you of him as a young up-and-coming man, all the way up until the war,
16 shows him as a gregarious, smiling, social person. I look at -- ask you
17 to look at the pictures below because that is Rujiste, and I took that
18 snowy photo myself, standing in the plum orchard that is circled on the
20 You see those dots in that yellow map, Your Honour? Well, that
21 is Rujiste, and that is Milan
22 lines. The person that would testify for Milan Lukic, MLD10, lived
23 there, and so is it really hard to believe, and why does bribery have to
24 become involved, when someone who has been your neighbour in the
25 mountains your whole life that you've dealt with the trials and
1 tribulations of living outside of town together would in fact ally
2 themselves in times of chaos?
3 Before the war, Milan Lukic was a brother, a teenager, a student,
4 a young man, a clown, a bartender; and when the powers turned on chaos,
5 he became a police officer, a soldier, now a fugitive, and an accused war
6 criminal. But he also became a father in that time. And I ask you, if
7 you look in these photographs, do you see someone that could do exactly
8 what they're saying, at least without the most careful of circumspection.
9 I ask you to look at the photograph in the middle with the two gentlemen
10 and everyone with their bad antiquated hair-cuts, but those are the
11 Muslim boys that were his best friends identified by MLD-10. This is a
12 boy that was raised in a mixed community. You cannot take the
13 accusations of the Prosecution lightly, and we will discuss the motives,
14 that fabricate that we have.
15 1D14, Milan Lukic just a few months before the war, Your Honour.
16 This is the guy that journalists would call the warlord of Visegrad. I
17 see him as being an ordinary man who, if you had looked at this, you
18 would never, ever think he would be an internationally accused war
19 criminal at some point in his life.
20 We brought Dr. Hough, and clearly, his qualifications and his
21 demeanour resonated with the Prosecution because they sided to him and
22 his reasoning when it supports their position. Well, I'd say if you give
23 him the credibility to do that, then we must also give him the
24 credibility to assess Milan Lukic, I think with a role that is also been
25 shown by the rest of the evidence.
1 This is important, Your Honour. In my jurisdiction, the case
2 would be dismissed based on an affidavit or arrest warrant that included
3 such diametrically opposed descriptions of the suspect of the crimes. In
4 the international warrant to INTERPOL, it cited blue eyes, eagle tattoos,
5 and a mole. I apologise for the issue with regards to the blond hair
6 cited by Mr. Groome, but actually it was the blue eyes, and we just --
7 for whatever reason, blond hair he escaped in there, but it was blue
8 eyes. It was the most important thing that you cannot take away.
9 I'd like to address the Drina River
10 practical perspective, as a criminal Defence lawyer, the Drina River
11 the most difficult for you to determine. It's the most difficult because
12 you have on your plate two eye-witness survivors that say my client's
13 there shooting them. You also have a former accused who testified in his
14 own trial that my client shot at those people. That's a lot on your
15 plate, and I admit that, and I'd like to hopefully prove to you why there
16 is doubt still despite that feeling of being overwhelmed.
17 First things first is ID. ID is up in the air as it's concerned
18 to VG-014 and 32. It's up in the air. It's not resolved. There are
19 serious inconsistencies between the eye-witnesses, especially if you
20 include VG-079 into the equation, and the OTP has failed to account for
21 the self-serving nature and unrebutted by cross-examination the Defence
22 of Mitar Vasiljevic. See, he put on a Defence of which no one
23 representing Milan
24 questions, so of course he wanted completely to mitigate his role, and
25 that needs to be explored because he hoped to walk out of this courtroom
1 acquitted, and he didn't. And the OTP has failed to rebut beyond a
2 reasonable doubt the alibi evidence presented by Milan Lukic.
3 I won't get into the thing. These are just simply quotes out of
4 our final brief, but it goes to the fact that VG-14 centred his
5 identification of Milan Lukic around a mole. So let's look at this. I
6 put all four photographs unretouched and marked by VG-14 an VG-032, and
7 if you -- they were asked in a pinch to circle what they thought was the
8 mole that was being referred to, and if you look at the unmarked versus
9 the marked, there's nothing there. More importantly, Your Honours,
10 there's nothing there that would be of the magnitude that if you put soot
11 or black paint on your face, that these kind of moles would not simply
12 disappear under the covering.
13 I show this because this has been the vanted OTP photograph of
14 Milan Lukic, the supposed White Eagle. Isn't it just as likely it's a
15 souvenir photograph because I've seen this hat on other heads, and how
16 can we say it's not even the same one? But the most important thing we
17 take from this, Your Honour, is here's a photograph that shows no mole
18 that can be misinterpreted by any witness, and I think it's arguable that
19 this is the issue.
20 Still skeptical? Where was the mole? Let's look at a bunch of
21 other photographs of his face over time and see if that circle on the
22 side of his face is a botched mole removal, and I don't think we have
23 anything here to show that there is such a thing.
24 Now, this is interesting because VG-014 has two ways of knowing
1 he also interacts with him during the two years that he went to school.
2 Well, arguably, Your Honour, you have in your custody the school records
3 of Milan Lukic, and he went to school for the full time. So that's
4 wrong. VG-014's wrong. He went to him with the school the entire time,
5 but why was that explainable? They weren't in the same section. So they
6 didn't see each other and go to class together. They saw each other.
7 And what did he know about the Milan Lukic that went to school with him?
8 He was a boy that never got into fights with people of Muslim origins.
9 He was soft-spoken, and he took the time to say hi to VG-014. Is that
10 someone we would expect to be a future war criminal? Really?
11 So I point your attention to Novica Lukic, Milan Lukic's older
12 brother. Now, we're not saying that Novica Lukic is a suspect, but if I
13 were a person maybe talking with a friend of mine, maybe VG-014 talking
14 to VG-032 and they're trying to figure out who just tried to, and they
15 could see a mole but couldn't tell who else it was, they might remember a
16 Lukic with a mole. As if we talked about memory with Dr. LaGrange,
17 certain things when we believe it or we say it can become parts of our
18 reality, and then it doesn't matter anymore. But he was a person with
19 the Lukic last name with a noticeable mole on his face as opposed to
20 Milan Lukic, and there's even Milan
21 right next to him that we can look at and see that there is no mole.
22 VG-032, he had never, ever had the time to know Milan Lukic and
23 only gained this knowledge through hearsay at the end. This is an
24 important diagram because it gets into the eye-witness testimony, and it
25 corroborates and deals with the eye-witness testimony of VG-079 who was
1 across the river with binoculars.
2 This is important. In the original statements of VG-079, he
3 documented a Paglicija, not a Passat. Regardless of whether or not the
4 Passat was there is an issue of credibility of these witnesses, and why
5 does VG-014 and VG-032 have reason to do this? Because it's easy for
6 them to lie if the only nexus they had between the accused was a Passat.
7 It's too easy for them never having to know Milan Lukic and simply
8 because everyone saw him at the Passat at some point in time. That is
9 not -- that would be dispositive maybe if VG-079 wasn't across the river
10 seeing a very different car which I would argue could not in any stretch
11 of the imagination be misconstrued for a Passat, and -- 4-door versus
12 2-door. And more importantly, VG-079 with the aid of his binoculars
13 without needing to speak to other people was able to identify two of the
14 named victims at the river. That means that the binoculars, if they are
15 good enough to ID a person, they're good enough to ID a car. They're
16 good enough to ID colours of uniforms. They're good enough to ID
17 headwear. And what you have is VG-079 in the very beginning documented
18 black uniforms; not just black face, black uniforms, black hats, black
19 scarves, skulls on them. That is absolutely diametrically opposed to a
20 blue beret and blue -- especially if I can recognise my friends.
21 Again, this is a slide related to that.
22 I did this for illustration, the reason being is is that the
23 witness identified that little white car in the background as a Jugo, and
24 that's right, and I think we've all seen those tiny cars that are made by
25 the former Yugoslavia
1 important because, albeit cramped, you can fit ten people in these two
2 cars. You can barely fit ten people. That's three in the back of each
3 and two in the front of each. One person has to be very, very
4 uncomfortable if you add an extra soldier. VG-079 in his original
5 statements said ten: Seven individuals, three soldiers dressed in black.
6 It's only in this trial have they added a fourth soldier, and only in
7 this trial is the uniform changing.
8 Mitar Vasiljevic, he seems to be the crux. He came in here, he
9 swore under oath, and he basically sent his kum down the river. He
10 testified on his own behalf in his own trial. He gave an OTP statement
11 in his own trial, and during that time, he presented himself in the most
12 out-of-the-picture sort of way, saying he was hiding, he didn't have a
13 gun, and all these things, and you know what his Trial Chamber did? They
14 chose to believe him that he was there but not believe him that he was
15 not involved. Why? Because VG-014 and VG-032 identified him. They
16 recognised him. This is a perfect example of the difference between
17 knowing somebody and not because --
18 THE INTERPRETER: Could counsel please slow down.
19 MR. ALARID: [Overlapping speakers] -- you can't say VG-014
20 didn't know Mitar. Of course he knew Mitar. They drank together --
21 THE INTERPRETER: Could counsel slow down, please.
22 MR. ALARID: -- as did Mitar with half the town. Why? Because
23 he was the biggest drunk in town, and we want to make him the architects
24 of these killings.
25 Dr. LaGrange testified that based on the history presented to her
1 regarding his alcoholism, his drinking, his bingeing, his blackouts, it
2 was likely that he had some brain damage. It's likely that that brain
3 damage affected memory, but more importantly, you also got to consider
4 state-dependent memory, Your Honour, because the day before this,
5 Mitar Vasiljevic buried his nephew. He had been drinking, certainly, and
6 he was drinking the next day by his own admission. If he was drunk at
7 the time, he needs to be drunk again to remember. That is
8 state-dependent memory.
9 Just have one slide dedicated to Uzamnica, and that is simply
10 this, that in the earlier statements before the Court, there are very
11 limited references to Milan Lukic supposedly entering the jail and doing
12 things that we would say he shouldn't be doing as a caretaker of anybody
13 in custody. However, if you look at their subsequent statements and,
14 worse than that, the statements as the OTP is speaking to them, the
15 instances become greatly exaggerated, and so we need to explore why these
16 witnesses need to go from one or two times coming in to every day, and
17 that is about how much the stakes go up.
18 The Koric killing. We don't have much on that, Your Honour. We
19 have two witnesses, VG-035 and CW-2. The issue with VG-035 is this, and
20 that was I think the problem with the OTP is that he had birth marks and
21 blue eyes. That's who she identified as him. She believed that the OTP
22 her showed a photospread with both Sredoje and Milan, but she identified
23 them in court. There was no photo arrays given by the Prosecution, and
24 that she is a member and her statement was prepared by Bakira Hasecic in
25 her organisation, and that her statement was then sent to the ICTY.
1 CW-002 also confirmed that the Milan Lukic she believed had blond hair,
2 that's where we mixed that up. Milan
3 and changed her story about who shot Hajra Koric and dropped by
4 Prosecution as a witness. Also, her statement was prepared by Bakira's
6 The Varda factory. The OTP failed to establish beyond a
7 reasonable doubt the ID of Milan Lukic. Why? Because they took all the
8 witnesses that were so far away. Again, the ID is based solely on the
9 Passat and not about an actual identification of Milan Lukic. They
10 failed to rebut beyond a reasonable doubt the alibi evidence. They
11 failed to establish beyond a reasonable doubt the identity of the alleged
12 victims. Why? As we filed the bar table, two of those alleged victims
13 were reported dead on different days. Two of the people are asking for
14 their property back. This is an issue where the identity of these people
15 is still up in the air much less how, why, when, and where they passed
17 Look at this place, Your Honour. Look at the screen. Look how
18 big this factory is. This is a huge factory. Now we have the multiple
19 drawings of the witnesses, and where are the witnesses that supposedly
20 identify in P190, a good distance away from the guard shack, either up on
21 the balcony of the house or in a chicken coop, all several hundred metres
22 away. This takes me back home because I think of myself, and we always
23 have immigration raids around where I live, and when they go into the
24 factories they usually cordon off all the exits and then round up people
25 and take them and ship them off. In the first statements of the witness
1 presented by the Office of the Prosecutor, Milan Lukic went in there by
2 himself. He went into this complex and brought out seven named guys,
3 took them out, and then one of the witness's statements actually
4 separated them, walked all the way down to the river, shot three guys,
5 come back up, get the other four who - God knows why they'd wait around -
6 and take them back down and shoot them too. Again, all from the vantage
7 point of this 200-metres-away situation, all based on a supposed red
8 Passat there and nothing else.
9 VG-031, we were chastised by the Prosecution today saying that
10 I'd dropped the ball. Your Honour, we filed our motion with regards to
11 VG-031 the 1st of December. It was not ruled upon as permission to allow
12 us to call him until March 13th, nearly the end of trial, and the Court
13 did not order the Prosecution to give his contact information until
14 March 30th. That was too late. We believe that the statement stands on
15 its own, and from a perspective of reasonable doubt, Your Honour, it's
16 big because when you have a worker inside that can name two of the
17 victims as being with two other named recognised by-name Serbs, at a
18 distance, and then he gives the Prosecution three other names that say
19 they saw the same thing I did, at the very least it would start to make
20 sense to me that it would take more than one guy to cordon off a factory
21 that big. But here's why I don't believe Milan Lukic has been proven to
22 be there. It's because the same way the water cooler works, you mean to
23 tell me this guy VG-031 wouldn't have heard Milan Lukic is there? It's
24 okay that he didn't see the thing by the river. It's okay that he only
25 saw the two other guys. But you sure would think that he would mention
1 to investigators what he saw.
2 These, again, are the death certificates that are the subject of
3 our most recent bar table, with two of the members most notably
4 Mr. Velagic who is reported to have died May 30th of 1992, not
5 10 of June, 1992; and Mr. Memisevic is alleged to have died the
6 9th of June, although we could argue that that's, yes, close enough, but
7 one is way out of the way.
8 Our expert, former deputy chief of police of Albuquerque,
9 New Mexico Clifford Jenkins stated that: Given the overall quality of
10 the Varda investigation, I would want my investigators to do more before
11 I brought it to the Prosecution.
12 Pionirska. This is a big one because I think it brought the most
13 witnesses, probably the most notoriety. We believe the Prosecution has
14 failed wholeheartedly. The OTP failed to establish beyond a reasonable
15 doubt the ID of Milan Lukic as being involved.
16 They are asking for life based on the evidence and the strength
17 of the evidence that they're asking in this case. They didn't even
18 establish beyond a reasonable doubt, Your Honour, the identity of the
19 actual victims. Instead, they attempt to amend their list as we prove
20 people are alive, as we prove that witnesses lied about not seeing them.
21 They lied about seeing them at funerals. They failed the correct, and
22 yet if you take a murderer case in its simplest, usually one person
23 killing one person, I'm sorry; if the body shows up alive, the case is
25 There's a notorious case in the United States where a gentleman
1 dilled his wife and his in-laws and then tried to kill himself, but he
2 set the house on fire and burned his victims alive. Imagine if three of
3 those supposed victims showed up in Mexico sometime later. What would
4 happen to the case even if we thought he killed one person?
5 Pionirska Street is important. This is just to demonstrate that.
6 This is the power, if you will, of the Prosecution's case. These
7 beautiful people, these beautiful people that are unaccounted for but
8 yet, wait, some of them are accounted for. Some are living and had
9 already left and yet were reported deceased by these witnesses, maybe
10 attempting to find justice for unindicted or silent alleged victims.
11 This is important. This is from the Prosecution's PowerPoint of
12 their opening. This shows the Hotel Visegrad of which -- where all these
13 bad guys were supposed to be staying, and it shows the way that the
14 Kurspahic family and others had come down from their home village and
15 then ended up in the Mahala neighbourhood.
16 This shows that the Prosecution has changed their story, and I
17 didn't have time to go back to the Vasiljevic exhibits that maybe led to
18 this, but as you can see, Your Honour, this diagram actually shows people
19 going through an opposite pathway to the Omeragic house. It is not the
20 same as the witnesses later dictated. As you can see, the yellow line
21 goes behind and between these Memic houses, and, in fact, in the most
22 recent testimony, the Memic house changes.
23 This, the Prosecution accuses us of misleading. Look at this
24 exhibit that was in their final brief. I don't know what these
25 headlights are. I don't know where that came from. I don't know. It's
1 uncited to the transcript, but if you look at the Exhibits that were
2 there, if you look at P057 in the bottom right-hand corner to this, I
3 recall specific testimony that there were some lights, ambient light from
4 the houses all the way across the creek-bed where the people escaped to.
5 But here is more important to this, Your Honour. If you look down there,
6 the shed to which VG-078 and VG-101 hid in, really? One, I don't
7 remember that evidence coming in anywhere, and then if you look at the
8 P57, there's that shed at the top of the far side of the hill, which
9 means these people while escaping got to go up the draw, through the
10 underbrush, which would make a lot of noise and a whole different thing
11 to go up to the other side. I don't believe that was the evidence. I
12 believe they are looking at this picture thinking, well, that looks like
13 it's in the bottom of the draw. But clearly, you can say it's 50 feet
14 higher than the bottom.
15 This is it. VG-115. Supposedly she saved herself by saying, oh,
16 she could see smoke and fire from her vantage point on the balcony of
17 where we took the pictures. Well, one, this is where it documents this
18 change where in fact that the lines drawn by all the witnesses don't go
19 around the back of that house or the front of the house, but more
20 importantly, this, Your Honour, if you look at one of those lines, one of
21 those lines is VG-115 saying Mitar Vasiljevic is on a white horse, riding
22 with a cast, yelling at these poor victims to get in the house. VG-115
23 was shown to be not credible by the Trial Chamber and the Vasiljevic
24 Appeals Chamber based on her testimony before that case, and if you want
25 to take a white horse and a guy in a cast doing this, the town drunk,
1 that is where it gets crazy.
2 They brought up the issue that this was somehow some air fuel.
3 Why? Because one of the VG witnesses said that the carpet was so soaked
4 with kerosene that now the theory becomes but the air just exploded and
5 blew everybody up. The problem is, as Mr. O'Donnell stated, an expert
6 with explosives, is were there a enough of the fumes to do that, there
7 wouldn't be any survivors. There wouldn't have been people coming out of
8 the windows. This place would have been rocked, and there would have
9 been no one crying or screaming or getting shot for an half an hour.
10 Important about Mr. O'Donnell, Your Honours, is simply this, and
11 it's a theory of the case that I believe is true: If something happened
12 at Pionirska, I think that to call everyone mistaken or absolutely crazy
13 is not the way it happened. I believe they couldn't ID Milan Lukic if
14 their life depended on it, and that's really the way it was. They didn't
15 know him. They didn't have the reasons, and their tendrils of
16 identification are so closely related to Mitar Vasiljevic who could not
17 have been there. He broke his leg. So everyone that said they saw Mitar
18 is lying. Why? Because they all knew Mitar. It wasn't a issue of maybe
19 it's him. They all knew him, drank with him, or saw him at the local
21 The important thing about my theory, though, is that for there to
22 be shrapnel in the wall from whatever was thrown in there to hurt these
23 good people, there cannot be 60 people packed in that tiny room because
24 then those 60 people would absorb and there would be no pathways to the
25 walls. The only reason for that shrapnel to make it to the wall is if
1 there was at least few enough that there is spacing to allow that.
2 This room I believe if anything, if there was a fire, if there
3 was a flash, if there was anything, it was a grenade. It was some small
4 improvised explosive device. Did it catch someone's skirt on fire or
5 something to give a witness that? Maybe. But if you went there and did
6 a site visit, you would see a dank, mouldy, wet environment, and that
7 flooring, if you soaked the floor-boards with it would be gone. It would
8 be burnt.
9 All of our experts basically prove that regardless of what
10 happened 15, 16 years ago in that basement room of Pionirska, it was not
11 a fully involved room fire. There's not the evidence. So if you believe
12 in part the witnesses for the Prosecution, it is possible they are simply
13 mistaken. Why? They escaped. But the biggest proof that goes towards
14 my theory, Your Honour, is that they heard voices and shots for that half
15 an hour. I think we all can imagine if the fire was -- enveloped
16 everyone, you would not hear the screams.
17 Officer Jenkins stated simply that all of this evidence speaks
18 directly to whether or not the possibility the crime even occurred, and I
19 would argue, in the manner it's described.
20 I believe that this case is completely about rape. I believe
21 that this case is about sons that did not come home on individual
22 arrests. I believe this case is about someone that you believe did
23 something and you're willing to seek justice even if it's not the right
22 This is an interesting diagram. We brought the picture of
24 we have nothing to fear from it because as the Prosecution would argue,
25 it makes their point; we argue it makes ours, which is, first, he was a
1 police officer. He's sitting there next to Vidoje Andric. He's got his
2 arm -- and there's nothing about this photograph that even says who drove
3 that car there. Clearly, I think we can assume they were both in it at
4 some point in time. But here is the issue with regards to the story that
6 THE INTERPRETER: Please slow down for the interpreters. The
7 interpreters cannot follow anymore. Please slow down.
8 JUDGE ROBINSON: You are being asked to slow down.
9 MR. ALARID: Three young teenagers were alleged to have been
10 kidnapped by Milan Lukic and Sredoje Lukic. They were alleged to be
11 driven to the bridge. They were -- two of them were alleged to be thrown
12 off and shot in the water in cold blood while two non-descript soldiers
13 sat in the back. Former case manager Marie O'Leary took off a cartoon
14 clip art of three young boys that I had on there to illustrate how silly
15 the story is of four soldiers, all their armaments, and three 14-year-old
16 boys having to squeeze between the two in the back with a sniper barrel
17 in their face, yet the witness had no clear recollection of the entry and
18 exit to the vehicle. That is important because if you go look at any
19 Passat, we were going to try to find one and squeeze a bunch of people
20 into it put it on video, but it's a ridiculous, ridiculous assumption
21 unless the witness accounts for such an uncomfortable situation.
22 And then for this witness to have witnessed two murders of his
23 friends and then be taken to the jail and then let go as if nothing had
24 happened, it's an illogical story meant simply to establish an alibi
25 rebuttal without a real logical tendril to reality.
1 I apologise. I correct. My counsel -- I apologise that -- it
2 was Varda I was thinking of.
3 Hamdija Vilic. The Prosecution brought him, the Court invited
4 him to come and talk about the possibility of being bribed. He says that
5 the Milan Lukic Defence or persons related to him offered him 100.000
6 Euros to testify. What to testify to? That he was fighting some unknown
7 Serbs on a certain day; not that he saw Milan Lukic, not that he kissed
8 Milan Lukic, not that he was with Milan Lukic, but that a fight happened.
9 Just a fight. We didn't need Hamdija Vilic to establish that. We have a
10 dead commander documented by the repeater. They've argued in their
11 submissions that, this road, look at it, it's a map, they show a map on
12 the road. If you'd go there, Your Honour, this is a mountainous, heavily
13 forested area that could be -- you could put three guys on a hill-side
14 with guns, and no one's going to get past a stretch of road if they don't
15 feel like it.
16 This is the most convincing bit of evidence that Hamdija Vilic is
17 just wacky, crazy, or lying, and the Court was distracted when this bit
18 of evidence came in. It was distracted because you had just received
19 some news on a filing, and this piece of evidence is important because if
20 you look at number one, that was Vlade who sat next to me for so long in
21 this courtroom. Vlade was with Mr. Vilic for supposedly an hour, yet he
22 couldn't pick him out of a lineup that was prepared by the Prosecution.
23 Vlade supposedly offered him 100.000 Euros, and he couldn't pick him out,
24 but look at these green ones. Hamdija Vilic said that number 3 was Milan
25 and number 8 was Sredoje. These are Dutch criminals, so that's how good
1 Hamdija is on remembering things.
2 Bikavac, 27th of June, 1992, allegedly. Again, the ID of
4 couldn't identify anybody. She looked around the room and said no. Of
5 the other people that supposedly identified him, they were in a proximity
6 to the alleged location that they should be dead right now. What no
7 one's really accommodated for is why people in this neighbourhood would
8 not be dead along with everyone else, and all you have to do is look at
9 the aerial to show this.
10 This is a high-up aerial, but it doesn't do us justice. Here we
11 go. This is the one that's been the exhibit so many times with so many
12 different people. In the corner of the road, if you look in the
13 upper-hand corner, that's the location of the Meho Aljic house, upper
14 left-hand corner, rather, and there's about 30 homes in that triangle,
15 and yet all these supposed survivors/witnesses had to have been in that
16 circle, and yet they're all here to talk about it. More importantly,
17 they were all at the refugee camp with Ms. Turjacanin. They all took
18 care of her. They all spoke with her. I believe they all came to love
20 Zehra Turjacanin, the sole alleged survivor, 70 of her family
21 neighbours and Muslim friends were put into this house, yet she only
22 remembered 11 names, and of the 11 names only 3 of them had biographical
23 information associated with them in Visegrad according to Ewa Tabeau, out
24 of 70. And yet, out of 70, where did they come from? Were they bused
25 in? If you had gone there, Your Honour, the streets are so narrow two
1 Jugos can't pass each other without someone pulling into a driveway.
2 That is a steep hill-side of which made the clutch smell just trying to
3 get up the hill to Bikavac. So they didn't bus them in.
4 THE INTERPRETER: Counsel, please slow down.
5 MR. ALARID: Did they walk them in like they stay in Pionirska?
6 How? She claimed to escape through a tiny -- go ahead.
7 This is important, Your Honour. She claims to have been burned
8 in the home, yet she told soldiers and doctors that she was burned a
9 different way. The nature of her burns are consistent with the history
10 she reported to the doctors and the soldiers, which was: I caught myself
11 on fire, my long flowing hair that was done down to my back. I caught it
12 on a stove. I had a fit. She denies ever saying that, but guess what?
13 It's in the transcript. It's in her earlier statement. It's in video.
14 She told people she was burned in a household accident, and guess what,
15 Your Honour? If you had long hair and it's on fire, what is going to
16 happen when you put it out? Your hands are in the fire, and your sleeves
17 pulled down as you raise it up. She only had burns from her eyebrows up
18 and only her forehead. The scalp was protected. Why? By her hair. It
19 was cut off in the video. You see the pictures, and it's on her
20 ear-tips. That is her hair on fire, Your Honour. That's her hair, and
21 had she -- but she says in her statement she burned her arms on a door
22 that was so hot from the fire that it caused her to burn. Well, one,
23 that kind of hot metal wouldn't cause burns on the back-side of your arm.
24 You need to be enveloped in the fire for that. And if the door was that
25 enveloped in the fire, to get that hot, how could she escape through it?
1 Another thing is --
2 JUDGE ROBINSON: Mr. Alarid, you have another five minutes.
3 MR. ALARID: Okay. She was -- she supposedly was put in the
4 house with 70 other people.
5 THE INTERPRETER: Could the counsel please slow down.
6 MR. ALARID: She gets in there. If the window -- if the windows
7 are all covered in furniture and the door is covered by a garage door,
8 then how are they throwing rocks through the windows? Then how do they
9 shoot through the windows? Then grenades come in through the windows,
10 then white powder that nobody has ever heard about or established as a
11 viable accelerant comes in, and all of a sudden, poof, everyone's
12 supposedly on fire? It makes no sense, but the most telling thing to me
13 that Ms. Turjacanin is a hysterical witness is why police departments
14 withhold -- see, I mean -- they are telling me to slow down a bunch, Your
15 Honour, and that's why I had asked for more time.
16 JUDGE ROBINSON: You may have another five minutes. We'll stop
17 at quarter past. That of course would be the end.
18 MR. ALARID: So Ms. Turjacanin then supposedly escapes. She
19 escapes out, and what happened? Again, go ahead, next one. This is
20 where Ms. Turjacanin denied telling others that she was in fact burned by
21 the gas cylinder despite being shown her own testimony.
22 This is important, Your Honour, because this is the original
23 opening statement for the Prosecution, and this is where they identified
24 the fire to be. This is what Ms. Turjacanin identified as the similar if
25 not identical garage door as well as marking up that same photograph, but
1 here is the important one. This is -- that opening's 9 inches wide.
2 That's a tight fit for anybody, especially in loose clothing, but look at
3 that picture to the right, Your Honour. One, the garage door is not high
4 enough to block off your average patio door because it's too short. It's
5 5 foot, 4 inches tall. But if you look at the site just a few years
6 back, not a picture used by the Prosecution, there's actually a shed
7 garage with a blue car parked on the site of Bikavac, and yet it's the
8 house in front that's burnt out, and as far as we know that site could
9 have been vacant there for many, many years, no history given. Again,
10 the door is too short, the window is too small.
11 This is interesting. One, these are Zehra's identifications of
12 where she passed. Why this is important? Because if you look on her
13 diagram, she goes by the same orchard where -- where? VG-115 says she
14 was hiding, where Zehra says that the police or soldiers were also
15 hiding. Again, I draw the geometric shape at the top to illustrate. If
16 not from this area, where did the victims come from that Zehra describes?
17 And you have a young lady in shock with second and third degree burns
18 trying to go through the June undergrowth of Bosnia? How could she do
19 this, run around all these homes to warn them away in that state?
20 You look at these competing diagrams as to where everyone put
21 Bikavac. Well, the one big problem is is that these witnesses -- if
22 VG-035 is over here at the top right-hand corner, if she's that close,
23 why wasn't she rounded up and put there? If you look down to, oops,
24 VG-58, VG-58 put the house on the wrong street completely. Cliff, that's
25 his diagram at the bottom. VG-115 is hanging out with the assailants.
1 That's because, if you look at this, to accelerate a little bit, the
2 orchard that Ms. VG-115 says she was at is also where Zehra Turjacanin
3 describes she gets out of the door, she's burning up, and there are these
4 soldiers that don't shoot her because they must be out of bullets. Then
5 they tell her, Stop, stop, and they don't come after her because maybe
6 they are on drugs. Why? Because they all have Band-Aids on their arms,
7 and then she wanders off and goes off on to the night. Do you realise
8 how silly that sounds. One, I come from a neighbourhood where there's
9 quite a few -- grew up where there was quite a few guys who would abuse
10 heroin. I don't think any one of them used a Band-Aid when they would
11 put that on their arm if they were just all going to party; one, the
12 sequencing events makes no sense. If Ms. Turjacanin is on fire and she
13 gets out, when did these guys have time to go start shooting up because
14 if they were, like, going to hang outside and watch it go down, but
15 they're going to start shooting up, then you put VG-115 in the picture,
16 well, she's right on top of them and either hanging out with them or
17 whatever. The fact of the matter is, though, is it makes no sense that a
18 bunch of soldiers that are otherwise willing to put you and kill you
19 wouldn't just club you or catch you or something in the state that
20 Ms. Turjacanin claims to have gotten out and walked right by them.
21 This is a big one. Zehra Turjacanin's brother and the statements
22 by her brother directly dispute her rendition in two major points --
23 three major points, one of which is Milan Lukic was an associate of her
24 brother's and: I met him through him. In his statement specifically, he
25 states: I never -- or my sister never met Milan Lukic through me. Why
1 would he do that unless it was a big deal?
2 Secondly, Milan Lukic supposedly -- excuse me. Her brother
3 supposedly was walled up in a home, and it was Zehra's warnings that got
4 him broken out. In his statement, he states: I was out of there before
5 the 27th. Therefore, he wasn't even there. And more importantly, Your
6 Honour, is he makes no reference in his statements to have even heard his
7 sister's story, because if he supposedly carried her to Medjedja for four
8 days, I would think that Ms. Turjacanin would tell her brother what
9 happened to her, and he would be willing to tell it to authorities and
10 investigators, but he did not.
11 More importantly, Your Honour, Ms. Turjacanin is fabricating
12 because she was so adamant about Mitar Vasiljevic being there, so much so
13 she wept when she was notified that Mitar was arrested. She identified
14 him readily at a photo array, of course indicating that she knew who he
15 was not but not necessarily that he killed anybody, and she never thought
16 he'd have an alibi that he was in a hospital with a broken leg at the
18 I believe Ms. Turjacanin is a true victim. I believe worse in
19 certain ways may have happened to her than even the allegations as they
20 stand. I think she should be evaluated and treated because she is a true
21 victim. I believe she is simply fabricating the allegations. And as Mr.
22 Jenkins stated, the fires may not have even happened.
23 Again, this illustration goes to show that we have presented
24 copious amounts of unrebutted alibi evidence.
25 This is just to sort of poke fun, if you will, a little bit, but
1 it's very serious, is that the OTP is changing their theory. They first
2 stated he was the White Eagle commander. Now it's just the Lukic gang.
3 I would argue simply that he was a soldier, and at two months into the
4 war he had no real authority whatsoever as a reserve police officer and
5 soldier. And this was the best evidence of the White Eagles. There's
6 that skull and cross-bones that, lo and behold, we brought witnesses that
7 identified these guys as Stevo and Josip, the camp cooks.
8 And, again, this goes to illustrate that the Prosecution is
9 evolving their case to suit, really, the evidence we brought, because we
10 spent half this trial fighting to prove that Milan Lukic was a reserve
11 police officer deserving of whatever role that put him in.
12 We would argue, Your Honour, by this slide that the Prosecution
13 picks and chooses when they want to believe our witness or their witness
14 or when they don't because there have been certain times when they've
15 stated that their witness is not reliable but only when it helps the
16 Defence of Milan
17 This is just to illustrate that every single witness that said
18 they saw Mitar Vasiljevic at Pionirska or Bikavac was lying, not mistaken
19 but lying, because he was so well known and so well identified in photo
20 arrays that there's no way to draw any other conclusion.
21 The Prosecution brought up the Koran. The only people, there was
22 no complaints from a single witness of the OTP or for fear. The only
23 people that complained about the Koran in the courtroom was Nerma Jelacic
24 [phoen] and Bakira Hasecic. That's it. That's where all the stink was
25 about. Mr. Lukic got that Koran from a Muslim general. He brought it
1 for his own reasons to make a point but not to bring fear to anyone.
2 JUDGE ROBINSON: You have to start closing now, Mr. Alarid.
3 MR. ALARID: The last slide was of all the main leaders. A
4 couple of them are standing trial or getting ready to stand for here.
5 They've already stood trial. But they forgot. See, Bakira Hasecic named
6 one of that I would -- defended one that I would argue is one of the main
7 people to be accused in Visegrad: Brano Savovic. Why? Because she knew
8 him. She knew him from before the war. She used to work with him. So
9 we have no information that he, Savovic, has blood on his hands, but they
10 were there the whole time and saw what was happening.
11 Now, why that's important, Your Honours, is if you look at
12 Visegrad as it stands, it's a very simple town to cut off. There's one
13 road in from the forth, one road in from the south, there's -- all you
14 need is three or four check-points. You mean to tell me Milan Lukic
15 could run rampant around this town under the authorities' noses unless he
16 wasn't either part of the establishment or under the direction of the
18 These are all of the witnesses that are associated with the
19 Association of Women Victims of War. These are all suspect because what
20 is the motive? If you look at all the reports and all the news from this
21 case, Your Honour, Milan Lukic was more accused of rape than anything.
22 So what would be a reason to fabricate but attempting to get justice for
23 an unindicted crime, an unindicted allegation? Why would people come and
24 say one thing when they simply want you to go down and it has nothing to
25 do with anything? The Court is very well aware of people that have felt
1 threatened by this association and that have been told that they would
2 lose their pensions or that they should testify wrongfully or
3 untruthfully against Milan Lukic for rape. If that is the issue and if
4 that is what is behind this case, all of the evidence of the OTP must be
5 scrutinised accordingly.
6 JUDGE ROBINSON: Thank you, Mr. Alarid. You've gone beyond the
7 five minutes.
8 MR. ALARID: Thank you, Your Honour.
9 JUDGE ROBINSON: I don't know if you wish to finish with a
11 MR. ALARID: Well, Your Honour, I don't know how flourish that we
12 could have --
13 JUDGE ROBINSON: [Microphone not activated].
14 MR. ALARID: -- other than -- I think that the reality is is
15 there was a real interest in this case that's separate from the crimes
16 involved, and I believe that the Prosecution did not investigate the
17 crimes in advance to the degree of which they brought a credible case
18 before the Court. I think that the evidence falls well short of a
19 conviction and that you should acquit Mr. Lukic on all counts.
20 JUDGE ROBINSON: Thank you.
21 Mr. Groome.
22 MR. GROOME: Your Honour, could I ask that the last slide shown
23 with all the witnesses who had statements with the Association of Women
24 Victims of War be redacted. Those are all -- or many of them are victims
25 of sexual crimes, and this would be a public reference to that fact, so
1 could I ask that slide not -- be redacted from the public record.
2 JUDGE ROBINSON: Yes, they will be redacted.
3 We'll adjourn and we resume tomorrow, 2.15.
4 --- Whereupon the hearing adjourned at 7.20 p.m.
5 to be reconvened on Wednesday, the 20th of May,
6 2009, at 2.15 p.m.