Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13167

1 --- Monday, 22nd of June, 1998

2 (In open session)

3 --- Upon commencing at 10.06 a.m.

4 JUDGE KARIBI-WHYTE: Good morning, ladies and

5 gentlemen. So do we have the appearances now.

6 MR. NIEMANN: Your Honours, please, my name

7 is Niemann and I appear with my colleagues, Ms. McHenry

8 and Mr. Huber for the Prosecution, Your Honour.

9 JUDGE KARIBI-WHYTE: May we have the

10 appearances for the Defence.

11 MS. RESIDOVIC: Good morning, Your Honours, I

12 am Edina Residovic, appearing on behalf of Mr. Zejnil

13 Delalic, along with my colleague, Professor Eugene

14 O'Sullivan from Canada.

15 MR. OLUJIC: Good morning, Your Honours.

16 Good morning, Your Honours my name is Zejnil Olujic,

17 attorney from Croatia, appearing on behalf of Mr.

18 Zdravko Mucic, along with my colleague Tomislav

19 Kuzmonovic, attorney from the United States of

20 America.

21 MR. KARABDIC: Good morning, Your Honours, I

22 am Salih Karabdic, appearing on behalf of Mr. Hazim

23 Delic, along with Mr. Thomas Moran, attorney from

24 Houston, Texas.

25 MS. McMURREY: Good morning, Your Honours. I

Page 13168

1 am Cynthia McMurrey and I represent Esad Landzo, along

2 with my colleague, Ms. Nancy Boler. Thank you.

3 JUDGE KARIBI-WHYTE: We're having some

4 difficulties with the transcripts. Mr. Olujic, I think

5 you start this morning.

6 MR. OLUJIC: Yes, Your Honours, thank you.

7 Before we begin with the witnesses for the Defence,

8 allow me in an introductory address to present our

9 Defence and the purpose for the testimony of our

10 witnesses, which we will bring before this Honourable

11 Court.

12 My wish is first to illustrate --

13 JUDGE KARIBI-WHYTE: You know this was a

14 choice given to Defence, if the intent to make an

15 opening address during their Defence, they should not

16 make an opening speech. Mr. Topolskovic made a long

17 opening speech and lost his right to make a Defence

18 speech. If you read the rules carefully, you see the

19 implications of making them. But I suppose we might

20 allow you, you were not part of the team then.

21 Although, you should have known what your predecessor

22 has done before now. But, in any event, I think you

23 could do that, you can explain whatever you want to.

24 MR. OLUJIC: Thank you, Your Honours. What I

25 should like to start with is to make a preliminary

Page 13169

1 analysis of the indictment and the overall proceedings

2 against my client, Mr. Zdravko Mucic. I shall

3 then present a further review--

4 JUDGE JAN: You're merely going to explain

5 what your evidence, Defence evidence, will be. It's

6 not --

7 JUDGE KARIBI-WHYTE: A general opening speech

8 introducing everything, analysis, defence, indictment,

9 those are not the things you're expected to do at this

10 stage. If you choose to do that, then you could have

11 done that at the opening or at the end of your evidence

12 because you always have a right to address the Trial

13 Chamber at the end of the Defence evidence.

14 MR. OLUJIC: Thank you for your advice, Your

15 Honours, I am aware of that. I do not intend to

16 summarise all the things that I consider important to

17 be said in my closing statement. I should just like to

18 familiarise you in brief with the proceedings so far

19 and the method in which we intend to present our

20 witnesses and prove the link between the Defence

21 witnesses of Mr. Mucic and the proceedings so far and

22 the indictment. This would then lead to my

23 conclusions.

24 This will certainly not be a closing speech,

25 that will come in due course. But, since there has

Page 13170

1 been a change, if I can call it that, in the strategy

2 of Defence, when I joined the Defence team in May,

3 1997, the Trial Chamber allowed me the possibility to

4 make this introductory address, especially in view of

5 my learned colleague who represented the Defence before

6 me.

7 So first of all, I should like to analyse the

8 indictment against Mr. Mucic, then I should like to

9 comment on the actual arrest procedure in the Town of

10 Vienna, Austria. We know that Mr. Mucic was arrested

11 by the Austrian police in an anti-terrorist operation,

12 even though he was charged with so-called objective

13 responsibility. A man who knew that he had not

14 consciously done anything wrong, he was naturally

15 afraid and depressed by such an operation. He was not

16 immediately given access to a sworn court interpreter,

17 which in the opinion of Mr. Mucic was a further illegal

18 act against him.

19 What is important now is not that the

20 responsibility for this lies with the Austrian police,

21 but rather the fact that Mucic was depressed and that

22 there was a demonstration of force at his expense. The

23 very absence of an official interpreter resulted in

24 certain consequences. His daughter interpreted for

25 him, who is legally unqualified and has a poor

Page 13171

1 knowledge of the German language. And there's no doubt

2 that in the process of interpretation, she made a

3 series of errors. There was no one there to check her

4 work because no one on site was familiar with both

5 languages, that is German and Croatian.

6 Further, my client received a series of

7 incorrect data from the Austrian authorities. The

8 Austrian law regulates remand prison in quite a

9 different manner from the statute and rules of

10 procedure of this learned tribunal. After his daughter

11 interpreted to him the information given by the

12 Austrian police, correctly or incorrectly, then the

13 Austrian judge spoke to him and gave him a form with

14 provisions interpreted by the official, sworn

15 interpreter and quite contrary to the rules of this

16 lofty Tribunal.

17 A third series of incorrect acts were carried

18 out by the investigator. The investigator clearly

19 disinformed Mr. Mucic, for he gave him information

20 contained in the statute having to do with the rights

21 of detainees, but he did not convey them to him in the

22 manner envisioned by the statute. So that the question

23 one may ask is, why he didn't do that? Why the text of

24 the statute and the rules were not read out to him

25 literally, but rather, interpreted in a way which is

Page 13172

1 certainly affected by the consciousness and the

2 experience of the investigator and the background he

3 comes from? It was quite simple to find the articles

4 and rules, to cite them literally from the text. As a

5 result, Mr. Mucic was disinformed and this was at his

6 expense.

7 What the daughter of Mr. Mucic interpreted to

8 him as written in the Austrian forms is quite contrary

9 to the provisions of this Tribunal. Even what the

10 investigator himself told him was not identical, so

11 that Mr. Mucic is in a detrimental position. Under

12 these circumstances, after a long day of not having had

13 anything to eat, Mr. Mucic was kept awake until 2.00

14 a.m. and questioned. He was totally disinformed about

15 the very cause of his arrest. The investigators told

16 him a falsehood that he was arrested for murder and

17 rape without showing him the grounds on which the

18 charges of objective responsibility rested.

19 Naturally, such a tormented and frightened

20 man, knowing well that he had not committed any crime,

21 gave up his rights and all he wanted to do was to go

22 home feeling that this was just a mistake. He doesn't

23 realise why he should apply any kind of tactics, why he

24 should call an attorney and he doesn't even know that

25 he's entitled to one. He simply wants everything to be

Page 13173

1 cleared up. He wants to go home and that is why he

2 renounced his rights as envisioned by the statute.

3 The Austrian judge, the Austrian attorney and

4 the Austrian police around him and who are not familiar

5 with the statutes of this Court, still interfered. The

6 attorney promised to get him out of prison after two

7 weeks if he engages him, even though he himself knows

8 nothing about the case. The restrictive Austrian law

9 prohibits Mr. Mucic from speaking in any language other

10 than German when making the single telephone call that

11 he is entitled to and this is written in the Austrian

12 law.

13 Our question is, how could Mr. Mucic could

14 have engaged anyone like that? Why, even before the

15 arrest, didn't the Croatian embassy in Vienna

16 interfere? If it had, it could have provided Mr. Mucic

17 both with an interpreter and a Defence attorney. As my

18 distinguished colleague Tapuskovic from Serbia, a

19 country which is, allegedly, belongs to the accused in

20 these proceedings and which, according to you,

21 committed a military aggression against the party to

22 which Mr. Mucic belonged, this is quite unclear the

23 us. And all this is part of the injustice in the

24 proceedings done to Mr. Mucic. In this way, he was

25 deprived of many rights. That is why the knowledge and

Page 13174

1 the documents obtained in Vienna in this way could not

2 be appropriate for the Court to make any rulings on

3 their basis.

4 An analysis of the indictment itself. The

5 indictment charges Mr. Mucic of being in a position of

6 superior responsibility and holds him responsible for

7 this. However, the statute of this Tribunal does not

8 use this term at all. Therefore, the indictment

9 charges the accused with something that is not -- that

10 does not figure in the statute. What does a position

11 of superiority mean? That is unclear. A teacher in

12 school is a superior, a traffic policeman in traffic, a

13 doctor in a surgery. Therefore, until this superiority

14 is explained, the indictment is lacking.

15 Second, the indictment says that Mr. Mucic

16 was a superior to those who came to the Celebici camp.

17 Here again we are not told what particular kind of

18 superiority in question.

19 Third, the indictment claims that Mr. Mucic

20 knew or had reason to know that his inferiors committed

21 crimes? What is an inferior?

22 Fourthly, the indictment goes on to say that

23 it charges him for not taking measures that are

24 expected of a person in a position of superiority.

25 What does the term "is expected to do" mean? Can

Page 13175

1 anyone be asked to answer for something that he --

2 because he didn't do something that is expected of him,

3 can such a responsibility be defined as a war crime?

4 The statute and relevant conventions say something

5 quite different.

6 Anyway, what can one expect of someone? One

7 may demand or require something, somebody may have

8 certain legal responsibilities and the like and these

9 can be cited from the statute. But expectations are

10 not a sufficient legal qualification for the acts that

11 the client is being charged with. So, again, there is

12 an error in the formulation of this position of

13 superiority. This is not splitting hairs, but a point

14 of substance.

15 Fifth, the 7th point of the indictment, says

16 that Mr. Zdravko Mucic was responsible for the work in

17 the Celebici camp, but it doesn't say in what way.

18 Sixth, the conflict in Bosnia-Herzegovina,

19 Your Honours, was not an international conflict as is

20 stated in the English text. The people is a populace

21 and the nation is a national and there's nothing more

22 to discuss. This is simply a matter of a

23 misinterpretation.

24 The allegation of the indictment that this

25 was an international, interstate conflict simply does

Page 13176

1 not correspond to the truth. The Republic of

2 Bosnia-Herzegovina in tempore bos camelorum suspectorum

3 (phoen) was an internationally recognised state

4 inhabited by three constituent peoples. Uprisings in

5 that state cannot be an international war, even if a

6 rebellious party is assisted by another external

7 state. These can be described as unrest and this may

8 possibly be treated as a civil war. The aggression of

9 the federal Republic of Yugoslavia is another matter.

10 The alleged victims were not members of the armed

11 forces of the federal Republic of Yugoslavia, so they

12 cannot be protected persons according to the

13 conventions of international law.

14 JUDGE JAN: Mr. Olujic, why don't you leave

15 these arguments to your concluding address? Tell us

16 something about the evidence that you want to lead. At

17 this stage we're not going to give any finding on these

18 issues. They are to be resolved at the end of the

19 evidence.

20 MR. OLUJIC: Thank you, Your Honours.

21 JUDGE JAN: The evidence which you intend to

22 lead the relations, how they are, how the evidence is

23 connected to that. At this stage we're not going to

24 decide whether it was international or internal

25 conflict. We're not going to decide what really is

Page 13177

1 implied by command responsibility.

2 MR. OLUJIC: All these things are

3 interconnected because that is the content of the

4 indictment in the way it has been worded and to which

5 we have been objecting in the course of the

6 proceedings. Of course, I will in my closing statement

7 elaborate on all this in detail. These are just

8 introductory remarks whereby I wish to prove the

9 inconsistency of the indictment in relation to my

10 client and that is precisely why I am going from point

11 to point.

12 JUDGE JAN: At the end of your evidence when

13 you're giving us your final concluding address.

14 JUDGE KARIBI-WHYTE: When you were to lead

15 evidence, I asked you what you intended to say. And

16 all I expected was what these witnesses you have told

17 me, what they are saying when they come in today when

18 the witness sits, not arguments which you intend to

19 give or evidence which you as Counsel would be giving.

20 Counsel is not expected to give evidence and many of

21 the things you are saying now will not come into

22 evidence by anyone, except from what you have said. I

23 don't like interrupting Counsel, I expect them to use

24 their judgement to present their arguments properly

25 because you are being unfair. You have very little to

Page 13178

1 say after you have led evidence. Now these are the

2 same things you will say at the end of the Defence

3 case. You have nothing more to add.

4 MR. OLUJIC: In law, many things could be

5 said, but, of course, your ruling for me is final and,

6 therefore, I will strictly abide by it. But I do not

7 intend to speak at any length. I will also be

8 referring to the witnesses that we intend to call, but

9 simply to make the link between the witnesses of the

10 Defence and the proceedings so far in the indictment

11 itself, allow me to briefly tell you what it is that we

12 intend to try to prove in the proceedings. That is,

13 the areas we wish to cover, the arrest in Vienna and we

14 will have witnesses about that. And it is important to

15 note that in that connection that we will try to prove

16 a series of omissions made by the Austrian police and

17 the Austrian judiciary and that the evidence seized was

18 seized in an illegal manner.

19 As for the importance of Mr. Mucic's position

20 and his command position and responsibility, here again

21 my witnesses will prove that at the time it was not

22 possible to organise forces which would be in any

23 sense, regular. There were no military or police or

24 political subordination. There was no law, no rules,

25 no regulations regarding their implementation.

Page 13179

1 Furthermore, we will prove that Mr. Mucic was

2 not an officer, he was not appointed to any position of

3 command. We will prove through our witnesses that he

4 wore no insignia of such a position, nor had

5 competencies stemming from such a position. We have

6 already heard much to that effect from witnesses

7 testimony so far, but our witnesses will also confirm

8 that. They will tell us that for most of the time

9 covered by the indictment, Mr. Mucic was absent from

10 Konjic. So it is not possible for a real camp

11 commander to be absent from his job in the middle of a

12 war.

13 Furthermore, as far as the actual

14 international character of the conflict is concerned,

15 we will prove that it was no international conflict.

16 And as for inhumane conditions in Celebici and the

17 illegal detention of civilians and alleged plunder of

18 civilians and other detainees the Prosecution has not

19 proven any of these allegations, but on the contrary,

20 the witnesses of the Prosecution in their statements

21 spoke in favour of Mr. Mucic so that I do not intend to

22 call witnesses to those charges. I am referring also

23 to the testimony of the expert witnesses and other

24 witnesses heard in this Trial Chamber who were called

25 by the first accused. So we will not duplicate the

Page 13180

1 proceedings by trying to prove those points again.

2 Finally allow me to conclude. In this short

3 introduction, we wish to draw attention to what we

4 consider to be crucial for establishing the truth. All

5 these allegations and all the testimony and all the

6 other evidence as required from me by Your Honours will

7 be covered in my closing statement when I will also

8 support those statements with references from these

9 proceedings and other relevant sources. On this

10 occasion, we have tried merely to highlight the main

11 directions of the Defence emanating from the indictment

12 and the whole case against my client, Mr. Zdravko

13 Mucic. Some of my thesis will lend themselves to

14 logical analysis.

15 Everything else, I think, shows that there

16 are no elements for any charges against my client, in

17 spite of the case that we have before us. That would

18 be all in brief in my introductory statement.

19 And now, with your permission, Your Honours,

20 we should like to present our case and our witnesses.

21 MS. RESIDOVIC: Your Honours, may it please

22 the court. May I address you before my learned

23 colleague calls his first witness?

24 JUDGE KARIBI-WHYTE: Yes. What do you have

25 to say?

Page 13181

1 MS. RESIDOVIC: Your Honours, there may be a

2 problem in my understanding of your comments, but what

3 I heard at the beginning of your remarks addressed to

4 my colleague is that the Defence of Mr. Delalic has

5 lost some right. So I would like to ask this to be

6 corrected and clarified before we continue, because I

7 should like to refer to Rule 84, according to which

8 before the Prosecutor presents his Defence, each party

9 may make an introductory address.

10 The Defence of Mr. Delalic did not make such

11 an opening statement. The Defence of Mr. Mucic did

12 make an opening statement, but with the permission of

13 this Trial Chamber, it was allowed to do so

14 subsequently.

15 The second sentence of this same Rule is

16 clear. The Defence may, however, elect to make its

17 statement after the conclusion of the Prosecutor's

18 presentation of evidence and before the presentation of

19 evidence for the Defence.

20 Mr. Delalic's Defence opted for a brief

21 opening statement indicating what evidence it intends

22 to call and did not feel it necessary to make any

23 lengthy opening address. For this reason I don't

24 understand. Maybe it is misinterpretation. I do not

25 understand your remark that we have lost our right to

Page 13182

1 an opening statement. We made that statement before

2 the presentation of the Defence, saying that we would

3 be calling expert witnesses and other witnesses who

4 would deny the allegations in the indictment.

5 JUDGE JAN: You had full opportunity to make

6 any addresses you like.

7 JUDGE KARIBI-WHYTE: If you read the rules

8 carefully, it says you either opt to make it at the

9 opening or after the presentation of the case of the

10 Prosecution. It is a very clear -- Rule 85 is very

11 clear. You have not concluded, you still have a right

12 to make your statement.

13 MS. RESIDOVIC: Yes, Your Honour. I just

14 wanted to make it clear. We will not have any more

15 opening statements, but at the end we will avail

16 ourselves of the right from Rule 86 to make our closing

17 statement, closing arguments. I just wanted to make

18 sure that we hadn't lost any right, as I had gathered

19 from the interpretation. So that at the end of the

20 presentation of the evidence we will present our

21 closing arguments. Thank you.

22 JUDGE KARIBI-WHYTE: Well, you can now call

23 your witness, Mr. Olujic.

24 JUDGE JAN: Is your witness is a protected

25 witness, the witness you are going to call? Because

Page 13183

1 the curtains have to go down.

2 MR. OLUJIC: Yes, Your Honours, it is a

3 protected witness.

4 JUDGE KARIBI-WHYTE: Now, you inform the

5 technical crew about the distortion of the faces so

6 that they couldn't be recognised from outside.

7 (The witness entered court)

8 JUDGE KARIBI-WHYTE: Swear the witness.

9 THE WITNESS: I solemnly declare that I will

10 speak the truth, the whole truth, and nothing but the

11 truth.

12 JUDGE KARIBI-WHYTE: Please take your seat.


14 JUDGE KARIBI-WHYTE: You may proceed,

15 Mr. Olujic.

16 THE REGISTRAR: To make sure of the identity

17 of the witness, we will show the witness a document

18 with her name and date of birth, and the witness simply

19 has to agree whether that is indeed her name and her

20 date of birth.

21 THE WITNESS: Yes, it is.

22 MR. OLUJIC: Your Honours, with your

23 permission, and since we are going to have some

24 introductory questions to begin with, questions which

25 concern the identity, so the witness might be

Page 13184

1 recognised by anyone, I would kindly ask you to move

2 into closed session, just for this part of this

3 introductory part of my examination.

4 JUDGE KARIBI-WHYTE: Yes, move into closed

5 session.

6 THE REGISTRAR: This will rather be a private

7 session, I think.

8 (In private Session)

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Page 13185









9 Pages 13185 to 13284 redacted - in private session



12 --- Whereupon proceedings adjourned, to

13 be reconvened on Tuesday, the 23rd

14 day of June, at 10.00 a.m.