110223ED

Page 52680

1 Wednesday, 23 February 2011

2 [Coric Defence Closing Statement]

3 [Open session]

4 [The accused entered court]

5 [The accused Pusic not present]

6 --- Upon commencing at 2.16 p.m.

7 JUDGE ANTONETTI: [Interpretation] Madam Registrar, could you

8 please call the case.

9 THE REGISTRAR: Good afternoon, Your Honours.

10 This is case number IT-04-74-T, the Prosecutor versus Prlic

11 et al.

12 JUDGE ANTONETTI: [Interpretation] Thank you, Madam Registrar.

13 On Wednesday, I would like to welcome everybody, the accused, the

14 counsel, members of the OTP, anybody who is assisting us.

15 I would like to give the floor to Ms. Tomic, the Defence counsel

16 for Mr. Coric. She's going to continue presenting her final arguments.

17 MS. TOMASEGOVIC TOMIC: [Interpretation] Good afternoon, Your

18 Honours. Good afternoon to everybody in the courtroom and around the

19 courtroom who are observing these proceedings.

20 At the beginning of today's argument, I would like to correct two

21 numbers that I read out incorrectly. I would like to do it for the

22 transcript. The mistake is on transcript page 52, lines 5 and 6. In

23 connection with Witness Skender, the following transcript pages should be

24 referred to: 45210 through 45283, and not 45310 and 45283. Likewise, on

25 transcript page 76, line 4, instead of P2574, there should be P2754.

Page 52681

1 Your Honours, the Prosecutor, in their final brief,

2 paragraph 1041, as well as in their closing argument, assert that the HVO

3 tolerated crimes because it was the HVO policy. It tolerated war crimes

4 and crimes against humanity, and thus it did not instigate proceedings

5 for such crimes. Instead, and only rarely, it prosecuted perpetrators of

6 minor offences. The Prosecutor furthermore alleges that the accused

7 Valentin Coric is directly responsible for such doings and that in that

8 way, he directly contributed to the joint criminal enterprise.

9 The Prosecutor asserts that there was an obligation for

10 proceedings to be instigated against perpetrators of such crimes and that

11 that was regulated by the International Humanitarian Law. The fact that

12 proceedings were instigated for crimes regulated by domestic laws does

13 not diminish the responsibility of the accused.

14 In order to support their thesis, the Prosecutor invoked the

15 first-instance judgement in the Milutinovic case. It should be pointed

16 out that that judgement is a first-instance judgement and that the

17 appeals judgement is still pending. Furthermore, the Milutinovic case

18 arose from Serbia and Yugoslavia, and the Penal Code of those states is

19 different from the Penal Code that was in effect in the area and at the

20 time relevant for the Prlic et al case.

21 The Coric Defence would like to draw the Trial Chamber's

22 attention to a more relevant legal authority, and those are the final

23 conclusions from the first-instance decision in the Hadzihasanovic/Kubura

24 case, because that judgement and those conclusions are relative to the

25 same space and the same time as our case. In paragraph 261 of that

Page 52682

1 judgement, it says:

2 "Consequently, at the time the acts alleged in the indictment

3 were committed, there was no binding obligation on states and, therefore,

4 on the Courts in the Republic of Bosnia and Herzegovina, to prosecute

5 individuals for war crimes under customary International Law."

6 Your Honours, it stems from this that national judiciary bodies

7 had the right and had the authority to decide whether crimes should be

8 qualified as war crimes or, alternatively, they would be qualified as

9 regular crimes, so to speak. In other words, the Prosecutor is not right

10 when he claims that the fact that crime reports were filed for regular

11 crimes, and not for war crimes, leads to one and only conclusion, and

12 that is that there was a criminal intent beyond any reasonable doubt and,

13 hence, that there was also criminal responsibility. In any case, the

14 Prosecutor didn't do anything to investigate or lead evidence about the

15 types of criminal reports filed. That did not prevent him from

16 misinterpreting the facts and saying that such criminal reports did not

17 even exist.

18 Your Honours, a more detailed analysis of a limited number of

19 pieces of evidence that the Defence has managed to obtain demonstrates

20 that such reports were indeed filed by appropriate bodies pursuant to the

21 Penal Code of the SFRY. The Coric Defence tendered into evidence

22 log-books and registers of some prosecutor offices. They are on the file

23 as Exhibit 5D4288. Due to its limited resources, the Defence was not in

24 a position to obtain the registries of all courts and all prosecutors'

25 offices. If we had been able to do so, that would certainly help the

Page 52683

1 Trial Chamber to create an integral picture of what really went on.

2 These registers, in the part that concerns proceedings against unknown

3 perpetrators, there is a reference to four proceedings that were

4 instigated for crimes pursuant to Article 142 of the Penal Code of the

5 SFRY. These cases may be located under the following numbers: KTN-3/95,

6 KTN-99/95, KTN-101/95, and KTN-103/95. In all of the cases, the criminal

7 reports were filed in 1993, which is also visible in the register. It

8 has also been noted that one case, under number KTN-98/95, was instigated

9 for a crime pursuant to Article 144 of the same law. In all the five

10 cases, the agreed parties or victims were Muslims.

11 Article 142 of the Penal Code of the SFRY concerns the crime

12 known as a war crime against civilian population. Article 144 of the

13 same Code concerns a crime of war crime against prisoners of war. Your

14 Honours, this clearly shows that the Prosecutor is wrong when he claims

15 that no single proceedings were instigated for war crimes.

16 With regard to the quantity of the pieces of evidence that the

17 Coric Defence has managed to obtain and tender into evidence, I would

18 like to draw the Trial Chamber's attention to another paragraph from the

19 aforementioned judgement in the Hadzihasanovic/Kubura case,

20 paragraph 239. In that sense, Hadzihasanovic's Defence, in its own

21 interests, has to answer charges against the accused Hadzihasanovic, and

22 it can present documents that testify to the measures that the accused

23 Hadzihasanovic undertook in order to, for example, elucidate the context

24 of the case or the fact that the military disciplinary system was in

25 place, it was up and running. However, the fact that the Defence

Page 52684

1 presented such documents should certainly not be at its detriment.

2 There is one thing to take into account the necessity for the

3 accused to answer the charges against him. However, burden of proof

4 cannot be transferred onto the Hadzihasanovic Defence and thus put it in

5 a hopeless situation. On the one hand, if the Defence presents a certain

6 number of documents which show that measures were indeed taken, the

7 Prosecutor will reap benefits from the lack of evidence in its case. On

8 the other hand, if the Hadzihasanovic Defence opts for a passive defence

9 and it doesn't present documents that demonstrate that measures were

10 indeed taken, the Prosecutor can use such a situation in order to

11 establish that the accused Hadzihasanovic did not take any measures at

12 all, since his own Defence failed to locate a single document that might

13 have proven that he had.

14 The Prosecutor, as I've already stated, by its allegations,

15 implies that Valentin Coric was responsible for the fact that

16 perpetrators of various crimes were not prosecuted and punished, and I'm

17 going to quote another part of the Hadzihasanovic and Kubura judgement.

18 Paragraph 137:

19 "To determine measures a superior must take, an examination of

20 national law is relevant."

21 139, paragraph 139:

22 "Besides, in order to determine the scope of the measures a

23 superior could take to determine his own responsibility under

24 Article 7(3), the Tribunal's case law has relied on the national law

25 and/or regulations of one of the armed forces in conflict."

Page 52685

1 At the time relevant for the indictment, across the entire

2 Bosnia-Herzegovina, including the HZ-HB, the area was regulated by the

3 same laws and regulations; the Law on Criminal Proceedings, the Penal

4 Code of Bosnia and Herzegovina, and the Penal Code of the SFRY. This is

5 corroborated by documents P449, P592, 2D908, 2D909 and 2D910.

6 The Law on Criminal Proceedings, which is also Exhibit 4D1105,

7 regulated the rights and obligations of authorised bodies in the

8 following way: In keeping with Articles 158 and 161, investigations were

9 instigated at the request of the prosecutor, and the person in charge of

10 investigations was the investigating judge. An investigating judge was

11 duty-bound to inform the prosecutor if, during the investigation, it was

12 established that the proceedings had to be expanded to include another

13 crime or other persons. This is regulated by Article 165 of the same

14 law.

15 According to Article 170, an investigating judge could stop an

16 investigation at the request of a prosecutor. In special cases regulated

17 by Article 171, that could be done by a trial chamber. Once an

18 investigation was completed, the investigating judge in charge would

19 refer the case to the prosecutor, and that was regulated by Article 174.

20 Article 261 stipulated that the proceedings before a court were

21 conducted based on an indictment issued by the public prosecutor or by

22 the victim of the crime. The prosecutor was the one who qualified a

23 crime, who gave it a legal name, referring to a provision in the Penal

24 Code, which also meant that those provisions had to be applied upon the

25 prosecutor's proposal. That was prescribed by Article 262.

Page 52686

1 A judgement was handed down by the court. When handing down a

2 judgement, the court did not have to abide by the prosecutor's proposals

3 about the legal qualification of the crime. This is regulated in

4 Article 346.

5 Your Honours, it arises from all of that that Valentin Coric, the

6 Military Police Administration, or any member of the military police did

7 not have the authority to issue indictments, to conduct investigations,

8 or to stop criminal proceedings. They also did not have the authority to

9 qualify crimes or issue judgements. This means that Valentin Coric, the

10 Military Police Administration and military policemen did not have a say

11 in deciding what kind of proceedings would be conducted. They didn't

12 decide about who will be punished, whether they will be punished, and how

13 they will be punished. It was the judiciary that had all those

14 authorities, both the military and civilian prosecutors as well as

15 judges, including investigating judges.

16 None of the aforementioned judiciary bodies were part of the

17 structures of the Military Police Administration or the military police

18 units. Valentin Coric did not have any authority over those judiciary

19 bodies. He was also not in a position to control them, either de jure or

20 de facto. The military police was just one of the bodies who could file

21 a criminal report with a competent prosecutor's office after the end of a

22 police investigation, and that is where all the obligations, authorities

23 and possibilities given to the military police to contribute to the

24 prosecution of criminals stopped.

25 Under the same factual circumstances, by studying and reviewing

Page 52687

1 the same regulations, the Trial Chamber in the Hadzihasanovic and Kubura

2 case, in paragraph 1061, concluded as follows:

3 "The Chamber finds that the accused Hadzihasanovic was unable to

4 carry out his own criminal investigation or to influence how the case was

5 dealt with by Judge Mirsad Strika or the competent prosecutor. Given

6 that the 3rd Corps military police informed the investigating judge of

7 the arrival of the bodies at the Zenica Morgue, thereby referring the

8 matter to the appropriate military judicial authority, it cannot be

9 concluded that the accused Hadzihasanovic did not take the necessary and

10 reasonable measures under Article 7(3) of the Statute."

11 Your Honours, in this case there is evidence that numerous

12 criminal reports were submitted against perpetrators of crimes, including

13 those crimes where the victims were Muslims. By far, the largest

14 percentage of those were initiated by the military police by submitting

15 those very criminal reports.

16 Tomljanovich, who was a Prosecution expert, at pages 6368 and

17 6369 of the transcript, as well as the OTP Witness Biskic at transcript

18 pages 15277 and 15278, confirmed that the military police submitted over

19 1.000 criminal reports in 1992 alone. It is also confirmed by document

20 P950. The Defence Witness NO, in his testimony at page 51215 and 51216

21 of the transcript, stated that according to his knowledge, the military

22 police submitted over 2.000 criminal reports.

23 Valentin Coric's Defence would like to remind the Trial Chamber

24 that during our examination of Witness Vidovic at transcript

25 pages 51438 to 51535, and its examination of Witness Buntic at transcript

Page 52688

1 pages 30516 to 30568, presented those witnesses a number of documents

2 which had to do with around 40 criminal proceedings held against various

3 perpetrators for crimes the victims of which were Muslims; inter alia, it

4 included the crimes of murder, rape, theft, et cetera.

5 Due to limited time, this Defence is not in a position to present

6 all those documents yet again to the Trial Chamber. Besides, in

7 Exhibit 5D4288, that is to say, in the KTN prosecution registers, one can

8 see that during the period of time relevant to this indictment, 296

9 criminal reports were submitted in total for various crimes committed

10 against Muslims. Most of them were submitted by the military police.

11 Your Honours, in their closing arguments at page 52132 of the

12 transcript, the Prosecution stated that they agree that in the Military

13 Police Administration, the various companies, and the 5th Military Police

14 Battalion, there were good men who were trying to perform their jobs

15 well. The Prosecution also stated that they were trying to do something

16 against this widespread criminal behaviour in the field. The Prosecution

17 also said that it was for that reason that they drafted all the reports

18 we watched, we saw. Your Honours, the Coric Defence asserts that

19 evidence shows that the position to prosecute perpetrators of crimes, and

20 a general condemnation of unlawful conduct, was the only plan

21 Valentin Coric had as well as the only plan that existed within the

22 Military Police Administration and the military police of the HVO as a

23 whole. It was not a position of a few good men.

24 I'd like to remind you of the words of Witness Andabak at

25 transcript pages 50953 to 50954:

Page 52689

1 [In English] "Yes, I do know about that, and it was the position

2 of the military police, from the top man, Mr. Coric, was that any such

3 perpetrators should be persecuted and the criminal report filed, and for

4 them to be dismissed from the unit. And those who upset law and order,

5 that disciplinary measures be taken against them and, if need be, to

6 eliminate them from our units. So at all briefings and all my contacts

7 with the Military Police Administration also told us that anybody who

8 besmirched the name of the military police on battlegrounds throughout

9 Bosnia-Herzegovina, that they should be thrown out of the units."

10 [Interpretation] Your Honours, I'd also like to invite you to pay

11 your attention to document P3571. Valentin Coric had the following to

12 say concerning a case of rape of two Muslim girls by military policemen:

13 "The named persons defamed the military police, and their further

14 retention in the unit would be detrimental."

15 The entire case file is handed over to the competent Military

16 Prosecutor's Office.

17 I'd like to move on to my next topic.

18 In their final brief, the Prosecution asserted that

19 Valentin Coric established and controlled check-points throughout

20 Herceg-Bosna, using them in order to control movement, and to render

21 delivery of international assistance, including humanitarian assistance,

22 impossible. They seek to corroborate this thesis of theirs in paragraphs

23 1000 to 1015 of their final brief. Your Honours, not a single document

24 the Prosecutor referred to in those paragraphs proves that Valentin Coric

25 in any way disrupted the movement of humanitarian organisations as well

Page 52690

1 as their lending assistance. Also, contrary to the Prosecution thesis,

2 these documents show that Valentin Coric had no exclusive authority over

3 check-points. The military police didn't have any either.

4 The Coric Defence, in our final brief in paragraphs 324 to 337,

5 dealt with the topic of check-points. Therefore, in this presentation I

6 will simply briefly comment on certain allegations made by the

7 Prosecutor.

8 In paragraph 1000, the Prosecutor asserts that Petkovic, in his

9 order number P1673, confirmed that the military police was responsible

10 for roads. This document shows only that Petkovic did order the military

11 police without informing the Military Police Administration about this

12 order, as the assertion stands. The Coric Defence asserts that the

13 check-points were not manned by military policemen and that the personnel

14 at those check-points were not under the control of the Military Police

15 Administration. This is shown in document P1548, which shows that

16 operational zone commanders commanded the check-points through their

17 brigade commanders. Also, in addition to military policemen, those

18 check-points were manned by soldiers. Both were commanded by operational

19 zone commanders.

20 The Prosecutor puts forth document P1331 as a key example of

21 Coric's order, proving that Coric controlled entry to Mostar. The only

22 thing you can see on the basis of that document is that it came about due

23 to a deteriorating security situation, and that because of that, searches

24 of persons, vehicles, and cargo were ordered. There is no mention

25 whatsoever of any ban on movement of international assistance or

Page 52691

1 international organisations. This order was issued based on an order of

2 the commander of the South-East Herzegovina Operational Zone, which is

3 document P1272. In the order, he clearly states that it was being issued

4 because there were check-points formed inside the town without the

5 knowledge of the Command of South-Eastern Herzegovina Operational Zone,

6 and because armed groups appeared, threatening the security of all, as

7 well as because of the attack on a police check-point in Grabovica.

8 Document P1134, referred to by the Prosecutor in paragraph 1001,

9 also has nothing to do with humanitarian assistance or with international

10 agencies. It is specifically mentioned that Valentin Coric did not

11 personally sign the document, because at the time he was not in Bosnia

12 and Herzegovina. This is something we discussed in our final brief in

13 paragraph 625.

14 The Prosecutor also refers to document P1654, P1654. Your

15 Honours, this document also has nothing to do with humanitarian

16 assistance or with representatives of the international organisations.

17 It is clear from the document that its author focused his attention on

18 law and public order and the prevention of crime. The last sentence of

19 the document clearly indicates that the operational zone commanded the

20 military police in the town of Mostar.

21 In order to corroborate their thesis, the Prosecution referred to

22 document P1868, the so-called plan of increased control of the town of

23 Mostar. The Coric Defence, first and foremost, wishes to stress that it

24 is clear from the document that the plan was drafted jointly by some

25 other organs, including the command of the operational zone, and not the

Page 52692

1 Military Police Administration or its head. It is clear, on the basis of

2 the document, that a dedicated task force was put together, on whose

3 behalf Lavric signed the plan. Therefore, Lavric did not sign the

4 document about this plan as Coric's deputy. It doesn't say that in the

5 document either. He signed this on his own behalf and on behalf of the

6 task force. All important telephone numbers are specified in the

7 document, including the telephone numbers of the chief of the Main Staff,

8 the commander of the operational zone, the deputy commander of the

9 operational zone, as well as commanders of certain military police units.

10 However, Your Honours, there is no number that would be Valentin Coric's

11 number.

12 Also, at the end of the document, there is a list of people who

13 were supposed to receive the document. Next to the name of each body

14 specified, we have a specific person that was to receive the plan; for

15 example, to the operational zone commander, to the Police Administration

16 and its head, to the head of the Department of Internal Affairs. Your

17 Honours, there is nothing written next to the "Military Police

18 Administration," no functional title, no name. The Coric Defence asserts

19 that there is no evidence that Coric was part of this plan or that he was

20 acquainted with it. The Coric Defence furthermore asserts that a few

21 days following the document, Valentin Coric issued an order on the

22 establishment of joint police patrols between the Army of

23 Bosnia-Herzegovina and the HVO, following an order issued by the

24 commander of the South-Eastern Herzegovina Operational Zone commander.

25 This is indicated in documents P2030 and P2020.

Page 52693

1 The documents referred to by the Prosecutor in paragraph 1004,

2 there is no mention of the military police.

3 In paragraph 1006, the Prosecution states that the military

4 police, during the siege of Mostar, prevented international organisations

5 from entering Mostar. They refer to several documents, of which not one

6 refers to the military police. By the same token, they also invoke an

7 adjudicated fact, which also makes no reference to the military police.

8 Your Honours, the Coric Defence asserts that out of all of the

9 evidence referred to by the Prosecutor, none of them show that Coric was

10 in any way controlling the check-points or that the military police was

11 the one preventing the distribution of humanitarian assistance. This is

12 further corroborated by the evidence presented by this Defence. The

13 Coric Defence asserts that the freedom of movement in a particular area

14 was decided upon solely by military commanders in their respective areas

15 of responsibility.

16 It is visible, from documents P2108, P2461, P2531, P2680, P4027,

17 and P4623 that various military commanders met from various levels,

18 starting with the chief of the Main Staff and other people from the

19 Main Staff, as well as different commanders from the Command of the

20 Operational Zone of South-East Herzegovina, as well as commanders of

21 local brigades. They met 27 times in total in order to negotiate with

22 the international organisations or with their mediation concerning the

23 issue of the freedom of movement. All these meetings and talks took

24 place between the 26th of April, 1993, and the 2nd of September, 1993.

25 All the documents I listed are documents of representatives of

Page 52716

1 whether criminal proceedings were being conducted against the person or

2 not. Documents P4379, 6D169, and P4450 show this.

3 Your Honours, the International Committee of the Red Cross

4 addressed high-ranking military commanders on a number of occasions

5 concerning the issue of treatment of prisoners of war, including forced

6 labour. They also addressed Mr. Petkovic among these. None of them ever

7 told the International Committee of the Red Cross to address the Military

8 Police Administration, nor that the Military Police Administration was

9 responsible for the treatment of prisoners. In connection with this,

10 Your Honours, please review the following documents: P284, P2950, P7629,

11 P7636, P7660, P5308, and P5967.

12 Why am I saying this? Because in its final brief, the

13 Prosecution uses, as the only documents that connect the Military Police

14 Administration with forced labour, the following documents: P4020 and

15 P4030. The former is a document signed by Mr. Petkovic, which says that

16 the Military Police Administration is responsible for the use of

17 prisoners, and the latter document is a document from the Posusje

18 Brigade, which supposedly acts on Mr. Petkovic's instructions and

19 requests prisoners for labour from, as the document says, the VPHB Coric.

20 Document P4068 is a report of the brigade military police from

21 the very same Posusje Brigade, which says that they acted on the request

22 from the brigade and took the prisoners from the Otok Prison.

23 Your Honours, there is no evidence that Valentin Coric or anyone

24 else from the Military Police Administration ever received or saw any of

25 these three documents, nor that anyone from the Military Police

Page 52717

1 Administration or Valentin Coric ever acted on this request. Concerning

2 these two documents which are connected with the Posusje Brigade, the

3 Defence particularly points out something else that is illogical. The

4 Posusje Brigade is located in the North-Western Herzegovina

5 Operational Zone. The Otok Prison was located in the South-Eastern

6 Herzegovina Operational Zone. It is not logical that the

7 Posusje Brigade, when the war operations were in full swing, should come

8 to fetch prisoners for labour from the North-Western Herzegovina

9 Operational Zone to another operational zone, particularly when, at the

10 same time in the area of the North-Western Herzegovina Operational Zone,

11 there were prisoners which were under the control of the Prozor Brigade

12 and the joint commander of all brigades in this area, Mr. Siljeg, from

13 the North-Western Herzegovina Operational Zone. And there are documents

14 which show that.

15 Now I will just say a few short remarks on the subject of prison

16 from the Prosecution final brief.

17 In paragraph 1071, the Prosecution, in order to prove that

18 Valentin Coric established the rules of conduct at the Ljubuski Prison,

19 refers to document P234. Your Honours, document P234 is a document from

20 a prison in Croatia, the Kerestinac Prison. This document has really

21 nothing to do with Ljubuski, nor with the HVO military police, nor with

22 the HVO Military Police Administration, except that an unidentified

23 person scribbled on the document, crossed out words, and added other

24 words such as, for example, "Ljubuski" and "Valentin Coric." The

25 document has not been shown to any witness, nor is there any other piece

Page 52718

1 of evidence that would connect this document with the Ljubuski Prison.

2 Paragraph 1161 of the Prosecution's final brief says that on the

3 23rd of September, 1993, the Muslim civilians tried to prevent the

4 transfer of prisoners who were being sent from Dretelj to Croatia. The

5 Prosecution refers to document P5322. Your Honours, this document does

6 not deal with Muslim civilians. These were not the Muslim civilians who

7 were protesting. The Croats were protesting, Croats who tried to prevent

8 the release of these prisoners from the prison. This was confirmed by

9 Prosecution Witness C. In connection with this, the Defence refers Your

10 Honours to paragraphs 590 and 591 of its final brief.

11 The Coric Defence claims that Valentin Coric never, not even

12 after the incidents on the 30th of June, 1993, issued an order on

13 disarming, arresting, or isolating Muslim members of the HVO. The Coric

14 Defence claims that according to the information which Valentin Coric had

15 at his disposal, he knew about the attack of the Army of Bosnia and

16 Herzegovina launched on the 30th of June, 1993, and the role of Muslim

17 members of the HVO in this attack.

18 After the 30th of June, 1993, within the military police, and due

19 to this security situation, a security check of military policemen of

20 Muslim ethnicity was carried out, and that was repeated in the fall of

21 1993, but not a single Muslim from the military police was arrested or

22 interned. The Military Police Administration assessed that this was not

23 necessary.

24 According to the information that could have reached the Military

25 Police Administration, Valentin Coric could only have known that the

Page 52719

1 military commanders in the Capljina and Stolac areas disarmed and

2 isolated the Muslim members of their units and able-bodied Muslims.

3 Valentin Coric had no reason to doubt the legitimacy of the decision of

4 these military commanders because they were in the position to best know

5 what the security situation in their units was, as well as in their zone

6 of responsibility. In addition to this, Valentin Coric believed, judging

7 by himself and the Military Police Administration, that everyone else

8 acted in the same manner.

9 In particular, I direct Your Honours' attention to document

10 P3960. The interpreters have it. The Coric Defence a

11 few weeks ago requested the Prosecution to provide a corrected

12 translation of this document. However, to this day we only received the

13 answer that this was in procedure. We have provided the Croatian text to

14 the interpreter's booth from which I will read only one single sentence

15 which is underlined for the sake of the interpreters. It's a report

16 personally to Valentin Coric, addressed by the commander of the 5th

17 Battalion of the Military Police, and the date is the 5th of August, 1993

18 :

19 "The order on arresting members of Muslim ethnicity for

20 preventive reasons made great difficulty and problems for us."

21 Your Honours, in the translation that the Coric Defence objected

22 against, which is the reason why we insisted that the translation be

23 corrected, lacked the word "preventive," and it is obvious that in the

24 Croatian text, this word exists.

25 Your Honours, at the moment when Valentin Coric learned what the

Page 52720

1 actual situation in Dretelj was, according to the testimony of Witness C

2 on transcript page 22381 and 22382, and that was a Prosecution witness,

3 in July Valentin Coric brought Ivan Ancic, the then commander of the

4 Military Police Company in Dretelj, to a government session so that he

5 would inform the government about what was going on in Dretelj. We know

6 that the government session was held on the 19th of July, 1993, and we

7 know that a commission which was to check the situation was sent to

8 Capljina and Stolac. Your Honours, in spite of all the effort made, the

9 government was powerless here. After that, in September 1993, at the

10 Collegium of the Defence Department, it was precisely Valentin Coric who

11 warned, once again, about poor practice in running prisons.

12 Eventually, on the 15th of September, 1993, Mate Boban issued an

13 order requesting that all norms of International Law and Geneva

14 Conventions should be observed in detention centres. Mate Boban, in item

15 7 of this order, requests the Main Staff to inform all subordinate units

16 and commands with this order, and that the Main Staff should help all

17 these units to implement the order. Mate Boban requested the Main Staff

18 to implement the order. He did not request the Defence Department or the

19 Military Police Administration to do that. The document in question is

20 P5104.

21 Your Honours, the Coric Defence, due to limitations of time, is

22 unable, in its closing arguments, to address all topics connected with

23 prisons. What we have presented here is just a shorter version of what

24 is included in our final brief in paragraphs 338 through to 609.

25 Your Honours, the Coric Defence invites Your Honours to check

Page 52721

1 very cautiously and with due attention every allegation of the

2 Prosecution from their final brief and compare it with the evidence which

3 are offered to corroborate these allegations. There are good reasons,

4 and the Coric Defence is not saying this just so. So far through our

5 presentation, we have showed documents which have been wrongly

6 interpreted or contents was added to them which the documents do not

7 include. Unfortunately, the Defence does not have enough time to point

8 out each and every one of such documents, but we direct Your Honours'

9 attention, for example, to paragraph 1143 of the Prosecution final brief,

10 in which it is claimed that the military police participated in an

11 incident, whereas the quotation from the witness testimony that the

12 Prosecution refers to just says the HVO police. Your Honours, it is a

13 well-known fact that the HVO had both military and civilian police. The

14 witness was here, and the Prosecutor should have, could have, and indeed

15 had to ask the witness which police this was, but the Prosecution did not

16 do that, and it's their problem.

17 In paragraph 1150, the Prosecution claims that Witness BJ said

18 that the military police was involved in the mass transfer of Muslim

19 civilians from Grude to Ljubuski. The Prosecution also refers to

20 document P3744. Your Honours, the document does not say what the

21 Prosecution claims, and Witness BJ, on transcript pages 5819 and 5820

22 during cross-examination, said that he did not know at all which persons

23 these were or where these persons were going or why. The witness was

24 unable to say whether these were Muslims, or Croats, or anything.

25 Your Honours, the Coric Defence claims that several documents in

Page 52722

1 this case are forgeries. It has claimed so during this presentation and

2 also in its final brief. In case of such arguments of Defence, the

3 Prosecution took the stand which implies that such a situation is

4 impossible, particularly if a document has the stamp from archives, and

5 that the Defence makes such objections just because such documents do not

6 fit its purpose. The Prosecution takes this stand even though it claimed

7 itself that it was facing the same problem a few years ago. Even the

8 book about the former Chief Prosecutor of this Tribunal deals with the

9 same issue.

10 Your Honours, the Prosecution of this Tribunal submitted a

11 request for a reconsideration of judgement in Blaskic case. This is to

12 be found in the judicial database of this Tribunal and can be accessed by

13 everyone. In this request, the Prosecution claimed that the appeals

14 judgement in the Blaskic case was founded on an at least strange document

15 of a state organ of the Republic of Croatia; namely, there were two

16 versions of one-and-the-same document. One of them had 20 pages, the

17 other one 40 pages. The longer version contained the name of the source

18 from whom the information on incidents relating to Ahmici was obtained,

19 including information on the dual chain of command as regards military

20 police in Central Bosnia. The source of all this information was

21 Mr. Blaskic's Defence attorney, Mr. Nobilo. This is what the longer

22 version of the document says.

23 However, what was submitted to the Trial Chamber was the

24 abbreviated version, the shorter version, that had only 20 pages and from

25 which the information about the source of information was left out, so it

Page 52730

1 can be fairly applied to every spear of activity that Mr. Pusic was

2 involved in.

3 Your Honours, and we don't need to remind you, as professional

4 judges, that the Defence in this case don't have to prove anything. All

5 we have to show is that there is another reasonable inference available

6 from the evidence. And given the evidence of these three witnesses,

7 given their testimony, we ask you to consider if the inference that Pusic

8 had no unilateral decision-making power can be simply set aside and

9 discarded. We submit if you cannot set aside/discard the testimony of

10 these three witnesses, then it follows -- it follows that there must be a

11 reasonable inference that Pusic, in the words of Biskic, could not give

12 orders to him or to anyone else.

13 And, Your Honours, I also echo the words of Mr. Khan, who was

14 standing where I'm standing a few days ago, and remind him of what he

15 said to you, which is that, If there is any doubt in your minds, that

16 doubt must be exercised in favour of the accused.

17 Your Honour, we go further than just to say that we've raised a

18 reasonable doubt. We submit that if you -- even if you are trying this

19 case on a different standard, if you are trying this case on a balance of

20 probabilities, we'd submit that you could find the facts, as interpreted

21 by us, as presented by the Prosecution, support an alternative theory,

22 and they support the theory that Pusic was a low-level civil servant who

23 had no decision-making authority.

24 Your Honours, given that the purpose of these closing addresses

25 at the end of a five-year trial are for all parties to refer to the

Page 52731

1 relevant arguments advanced in written submissions, you may have found it

2 surprising that the evidence of these three witnesses, which is fairly

3 prominently highlighted in our final trial brief, was not extensively

4 referred to by the Prosecution in the course of their oral submissions.

5 We suggest that that is an omission -- a glaring omission that can only

6 be explained in one way. The Prosecution failed to address this evidence

7 because they can't explain it, because they realise that these points

8 represent an Achilles heel in their case, and that's why they seek either

9 to evade or ignore it.

10 Your Honours, I hope you have before you an outline of our

11 submissions today. In the remainder of my speech, I will move on to

12 consider what we suggest to be serious legal errors made by the

13 Prosecution in the course of their closing submissions to you. We'll

14 then outline some general points in the nature of our defence before

15 dealing with the evidence against Mr. Pusic. And I turn to deal with the

16 evidence related to Mr. Pusic within the framework of the two questions

17 that I outlined to you in the course of my introduction. We'll then move

18 on, Your Honours, to look at the question of Article 7(3), command

19 responsibility, before examining issues of JCE liability, and then

20 sentencing remarks will follow.

21 In the course of the submissions made by the Prosecution last

22 week, one of the main accusations made was that the Defence had been

23 highly selective in their use of quotes. Your Honours, my view on this

24 really originates, and my interest in this trial originates, on the

25 international criminal justice system, from my initial studies as a

Page 52732

1 historian. And my first degree was in history and politics, and one of

2 the first texts that I was asked to read as a history student was a

3 treatise on histography by a British author called E.H. Carr. And he

4 said, in a characteristically provocative way, that:

5 "The belief in a hardcore of historical facts existing

6 objectively and independently of the interpretation of the historian is a

7 preposterous fallacy, but one which it is very hard to eradicate."

8 Your Honours, I take the view that one can attempt to be

9 objective, one can attempt to take the reasoned and fair view of the

10 evidence, while still coming to a firm conclusion, but it is inevitable

11 that in the course of any analysis, legal or historical, that there will

12 be some criticism that could be laid of selectivity. Bearing this in

13 mind, it is apparent from our final trial brief that we have had the

14 luxury -- we have been in the position where we have had the luxury of

15 being able to quote extensively from the relevant witnesses. And, Your

16 Honours, I would like to emphasise that we have done so for one simple

17 reason, and that is because we have endeavoured to make sure there can be

18 no doubt as to what was actually entered in the evidence during the

19 course of this trial.

20 And, Your Honours, the Pusic Defence does not accept the

21 Prosecution's criticism that we have simply ignored incriminating

22 material. If you examine paragraphs 120 and 126 of our final trial

23 brief, you will see that we have addressed various aspects of the

24 testimony of Witness DZ that do not entirely advance the Pusic Defence,

25 and in due course, if there is a rebuttal, if the Prosecution do choose

Page 52733

1 to address the points that we have raised today, it may well be that the

2 Prosecutor chooses to highlight other remarks made by DZ to ridicule the

3 submissions made by the Defence. Well, that is part and parcel of

4 adversarial proceedings.

5 We would respectfully ask the Chamber to focus on DZ's evidence

6 in the round, to take the rough with the smooth, because, in our

7 submission, it's quite clear that if you do that, it's quite clear that

8 Witness DZ considered Pusic not to be one of the main players in the HVO

9 and not to have any decision-making powers. In the same spirit, we would

10 ask the Chamber to examine the evidence of all the international experts

11 who testified against Mr. Pusic in the round, to look at their evidence

12 globally, because it's simply not possible to reconcile what certain

13 witnesses, Witness BB, BC and BD, say, to reconcile that with the

14 testimony of international witnesses DZ and DV. And where there are

15 contradictions, we suggest that the Trial Chamber should give preference

16 and weight to those witnesses who had regular direct contact with

17 Mr. Pusic, whose evidence is based on their first-hand experience and not

18 on unattributed hearsay. And, Your Honours, that is a submission that we

19 develop in more detail in paragraphs 110 to 112 of our final brief.

20 In summary, we also say this: that if you do come to the

21 conclusion that the Pusic Defence has misstated or misinterpreted the

22 evidence against Mr. Pusic, then please do not hold it against Mr. Pusic.

23 Ultimately, Your Honours, we recognise that it's up to you to

24 decide whether the conclusions that we've drawn from what we say is an

25 exhaustive and careful review of all the material, if those conclusions

Page 52734

1 are fair, balanced, and justified, but we would ask, furthermore, that

2 the Chamber treat the submissions that have been advanced by the

3 Prosecution and the Defence to the same degree and level of scrutiny.

4 We have tried to be transparent with the Trial Chamber. We stand

5 by every word of our final trial brief, and we say that we have presented

6 you with a scenario that is far closer to the truth than that advanced by

7 the Prosecution.

8 Your Honours, at the beginning of my speech, I referred to an

9 extract from the Prosecution's closing submissions concerning statements

10 misstating the law relating to the burden of proof. And, Your Honours,

11 there are three legal errors in the Prosecution's opening submissions

12 that we would like to explore with you now. The first relates to that

13 very issue, the burden of proof.

14 During the course of their closing argument, there were three

15 statements that were made that we take issue with. The first: The

16 Prosecution said, and I paraphrase, that the Pusic Defence has presented

17 no evidence whatsoever that could convince the Trial Chamber to come to a

18 different conclusion. That's at transcript page 52140. They went on to

19 say:

20 "Pusic put the Prosecution to proof and responded with a passive

21 and silent defence."

22 Transcript page 52161. And then, and perhaps of most concern is

23 the following:

24 "The problem for Mr. Pusic is his silent and passive defence. He

25 did not provide the Chamber with any evidence to support his

Page 52735

1 interpretation. The Trial Chamber has only his unsworn and untested word

2 in the form of his final brief and perhaps his earlier 98 bis

3 submissions."

4 Your Honours, obvious point that arises from that, the Defence do

5 not have to prove anything, and that's one point that the common law and

6 civil law jurisdictions often have in common. In France, it's recognised

7 in Article 9 of the Declaration of the Rights of Man and of the Citizen,

8 and in some national jurisdictions -- in the United States -- in parts of

9 the United States, for instance, I understand that any criticism of the

10 Defence for not testifying, for not calling evidence, would be entirely

11 prohibited and would be immediate grounds for a mistrial on the basis

12 that it violates a citizen's 5th Amendment rights.

13 So, Your Honours, it's regrettable you can't trust the

14 Prosecution to accurately state and apply the law. As far as it concerns

15 the Defence, these are basic principles of the Tribunal's jurisprudence.

16 Your Honours, the Prosecution also described another dilemma they

17 said faced the Pusic Defence, and it was stated thus :

18 "The first dilemma for the Pusic Defence, Your Honours, is that

19 the Pusic Defence has already presented all of their current arguments to

20 the Chamber previously during their 98 bis submissions in January 2008."

21 And that's transcript reference 52139.

22 Your Honours, that assertion is patently incorrect. The

23 arguments that were presented on behalf of Mr. Pusic during the 98 bis

24 submission did not address the strengths and weaknesses of the evidence

25 against him in any respect. In our 98 bis submissions, we simply

Page 52736

1 asserted that there was no evidence linking Mr. Pusic to Counts 4, 5, and

2 19 to 26 inclusive of the indictment, and there was no evidence linking

3 him to other specified allegations within other individual counts. And,

4 Your Honour, this is a submission that you'll find developed in more

5 detail in Part 2 of our final trial brief at paragraphs 32 to 36. The

6 remainder of our submissions focus on the law and, in particular, a

7 discussion of JCE 3 liability.

8 Your Honours, the third error made by the Prosecution during the

9 course of their 98 bis submissions arises from what we say is a

10 fundamental misunderstanding of the test set out in Rule 98 bis. The

11 Prosecution said that the Defence faced another dilemma because, as a

12 consequence of the Chamber's 98 bis finding -- Your Honour, I'll quote

13 directly:

14 "Since that time, Your Honours, the Pusic Defence has not placed

15 any alternative evidence before this court, no evidence whatsoever which

16 could convincingly persuade the Trial Chamber to come to a different

17 conclusion.

18 "The dilemma for the Pusic Defence is that the Trial Chamber must

19 therefore assess Pusic's criminal liability for the crimes he is charged

20 with on the basis of the very same evidence they have already previously

21 found sufficient beyond reasonable doubt."

22 Your Honours, I've read that extract on a number of occasions,

23 and I have to admit to you that I struggle to understand the logic behind

24 the assertion that's made. It's an assertion that's based on the

25 following extract from the Chamber's 98 bis ruling, which states that:

Page 52737

1 "Under Rule 98 bis, the Chamber needs only to determine whether

2 there is evidence on the basis of which any reasonable trier of fact

3 could enter a conviction beyond reasonable doubt. The Trial Chamber

4 believes that at this stage, the Trial Chamber is not to establish

5 whether it would enter a conviction at the end of the trial, but whether

6 it could do so."

7 Your Honours, I don't intend to lecture you on the Tribunal's

8 jurisprudence relating to Rule 98 bis. We do have some slides prepared.

9 I can summarise the position the Chamber took. The Chamber emphasised

10 that it was not part of their duty to consider the probative value of the

11 evidence in the course of determining whether the 98 bis test had been

12 met. The second point that was emphasised in your decision, Your

13 Honours, was that the Chamber only needs to find that there is evidence

14 supporting conviction on the basis of one mode of responsibility. The

15 final point in respect of this particular submission is that, Your

16 Honours, in the course of your decision, it was also emphasised that

17 there is no contradiction between a decision to dismiss a 98 bis motion

18 and a judgement of acquittal, and reference is made to the decision of

19 the Appeals Chamber in Jelic - I'm grateful to Mr. Mulalic - Jelic in

20 that particular case.

21 In summary, Your Honours, we say that the decision that you took

22 in respect of our application under Rule 98 bis should have no bearing on

23 your deliberations at this particular stage of this trial.

24 Before we move on to embark on an analysis of the evidence in

25 this case insofar as it relates to Mr. Pusic, I would also like to make a

Page 52738

1 number of preliminary points, the first of which is to clarify the

2 general nature of our defence.

3 Your Honours, this is not a case where we deny that Mr. Pusic

4 signed documents or issued paperwork, and this is not a case where we

5 challenge the authenticity of all the documents the Prosecution seek to

6 rely on. Where we do challenge the authenticity of any documents, we

7 have tried to explain why it is that we object. And, Your Honours, you

8 will have heard how the Prosecution have attacked the other accused for

9 often adopting what they describe as an unrealistic stance by claiming

10 that large volumes of documents were forgeries. Well, we haven't taken

11 that approach, but it does seem, Your Honours, that the Prosecution is

12 determined to attack us nevertheless.

13 Furthermore, when we have questioned a witness's veracity, we

14 have made it clear what parts of a witness's testimony that we say are

15 unreliable. So, for instance, in relation to witnesses Masovic,

16 Josip Praljak, or Cupina, Praljak being a case in point, is discussed at

17 paragraphs 131 to 136 of our final trial brief - we have said that there

18 are certain aspects of those individuals' testimony that we deem to be

19 unreliable, and we have explained why we take that position. And, Your

20 Honours, as professional judges, you will know from your own experience

21 that an intelligent witness may not lie about everything because an

22 intelligent witness will know that a half lie is often more convincing

23 than an outright lie.

24 So in the case of Josip Praljak, while we don't accept the

25 veracity of everything he says, we do make it clear that when he's

Page 52739

1 testifying about any matter that could potentially inculpate him or his

2 colleague, Bozic, then his words should not be relied on.

3 If I can turn now to the issue of documentary evidence.

4 We ask you to look beyond a literal reading of the documents. We

5 ask you to look beyond blind acceptance of the assertions made by the

6 Prosecution. One of the chief distinguishing characteristics of this

7 trial is the huge volume of documentation, and one of the striking

8 characteristics of this particular conflict is the fact that both sides

9 were armed with battalions of photocopiers, legions of secretaries, as

10 well as conventional weapons. The documents that have been produced in

11 their thousands, as a consequence, don't tell the entire story without

12 further reference to the testimony of the witnesses that have been called

13 in the course of this trial.

14 It also follows, in our submission, that where there is no

15 witness testimony to corroborate the contents of a document, that that

16 document -- the contents of that document should not be taken at face

17 value.

18 So, Your Honours, we ask you to try and place the documentary

19 evidence against Mr. Pusic in the framework of the evidence, as a whole,

20 and against the background of the testimony of all the witnesses that

21 have appeared in this trial.

22 Your Honours, at paragraph 347 of our final trial brief, we alert

23 the Chamber to the fact that there are a number of other individuals who

24 feature in this case who share the same surname as Mr. Pusic, and at

25 paragraph 347 we develop that point in more detail. Having considered

Page 52740

1 the contents of the Prosecution's final trial brief, we have noted that

2 on at least two instances, it appears that the Prosecution have confused

3 Mr. Pusic with someone else.

4 At paragraph 21 of the Prosecution's final trial brief, in an

5 extract referring to a document P2293 regarding deportations, and at

6 footnote 37, and also at paragraph 28 of the Prosecution's final trial

7 brief, at footnote 51, Mr. Pusic is confused with another individual

8 called Mile Pusic. Another example of this can be found at paragraph 595

9 of the Prosecution's final trial brief in connection with footnote 1389.

10 There is a mistaken reference to Mr. Pusic when it would appear that the

11 witness who is referred to therein is referring to another individual

12 called Berislav, Berislav Soldo.

13 Your Honours, these are, we suggest, important errors. They are

14 significant because they indicate how willing the Prosecution are to make

15 assertions without checking the facts. And they also indicate, in our

16 submission, how, in the course of this five-year marathon trial,

17 indicates how the Prosecution have lost sight of Mr. Pusic. They have

18 been concentrating so hard on the other accused that the dot representing

19 Mr. Pusic has disappeared off the radar.

20 There was a clear example of this in October 2007. Five months

21 after Witness BC had testified in this courtroom, the Prosecution were

22 moved to file a motion asking for that witness to be recalled, on the

23 basis that due to an oversight of counsel, an important document had not

24 been put. And, Your Honours, you will find further information

25 concerning that particular instance in the Prosecution's motion to admit

Page 52741

1 Exhibit P09848, dated the 23rd of October, 2007.

2 So, Your Honours, in our submission, this is a case where the

3 Chamber will need to subject every single assertion that the Prosecution

4 make, in both their final brief and in their closing submissions, to a

5 very detailed level of scrutiny.

6 The final point in respect to this preliminary discussion. Your

7 Honours, we suggest that it is facile for the Prosecution to say that any

8 defendant involved in these proceedings must have known what was going on

9 at the time, and this is a point that was made in the course of the 98

10 submissions by the Prosecution. And you'll find a reference at

11 transcript page 27148 to 9. It's something that we suggest is facile

12 because obviously in a large-scale case, it's this: Where essentially

13 the HZ-HB government and its policies are on trial. Almost everyone in

14 the area would have known what was going on, but that shouldn't lead to

15 an assumption that everyone connected with the HVO must be guilty of war

16 crimes.

17 In essence, the Prosecution seem to be saying that, Where there

18 is smoke, there must be fire. But in addition to smoke, there must also

19 be light. And, Your Honours, it is our hope that our submissions shine

20 some light on the evidence and shine some light on Pusic's role in this

21 case.

22 Your Honours, I'm about to move on to another substantially

23 different part of my submissions and to begin dealing with the evidence

24 against Mr. Pusic, so perhaps this is a convenient time for us to take a

25 break.

Page 52742

1 JUDGE ANTONETTI: [Interpretation] Very well. This will be our

2 last break for the day, and it will last 20 minutes.

3 --- Recess taken at 5.26 p.m.

4 --- On resuming at 5.47 p.m.

5 JUDGE ANTONETTI: [Interpretation] We continue with our hearing.

6 Please go ahead, Counsel.

7 MR. SAHOTA: Your Honours, I'd like to move on to consider the

8 evidence relating to Mr. Pusic. We have dealt with the evidence

9 thematically in our brief. However, in response to the arguments raised

10 by the Prosecution in their written arguments and in their oral

11 submissions, we propose to deal with those matters in a chronological

12 format. And, Your Honours, we'd like to begin by examining the evidence

13 concerning the involvement of Mr. Pusic in this so-called JCE prior to

14 the 5th of July, 1993, which is an important date because, as you will be

15 aware, it's the date of his appointment as head of the Service of

16 Exchange.

17 During the course of the Prosecution's oral submissions, it was

18 stated that the Pusic Defence's submissions that the lack of any

19 evidence, the paucity of evidence concerning Mr. Pusic's contact with

20 other senior members of the so-called JCE, and the paucity of evidence

21 suggesting that he had any role in the genesis of the purported JCE

22 between 1991 and 1993, it was said by the Prosecution that those

23 submissions were irrelevant and amounted to an irrelevant red herring.

24 The words used by the Prosecution were that:

25 "The argument of not being in the JCE because he was unknown to

Page 52743

1 some witnesses and an accused, it's an irrelevant red herring."

2 We say that that statement is unsustainable. You are entitled,

3 Your Honours, to take into account the absence of any evidence of

4 association with other alleged JCE members. That is something that you

5 may consider to be relevant when you decide if Mr. Pusic was a member of

6 the JCE. And, Your Honours, we say the fact that Mr. Pusic had no

7 contact with Franjo Tudjman, the fact that Slobodan Praljak had never

8 heard of him at the time the indictments were announced, and was indeed

9 very surprised when he first heard that he had also been charged, that is

10 all relevant given the way the Prosecution put this case, because it

11 could potentially rebut any inference that Pusic was a leader or member

12 of the joint criminal enterprise. And, Your Honours, that is an area of

13 our submissions that is described in more detail in our brief -- in our

14 final trial brief submissions at paragraphs 25 to 26 and paragraphs 15 to

15 16.

16 Moving on to take matters chronologically: One of the earliest

17 references to Mr. Pusic is in a SIS report from late 1992, and that's

18 document P0663, dated the 28th of October, 1993. Your Honours, you may

19 recall that that was a report of alleged misconduct involving Mr. Pusic.

20 We query if the contents of that document are relevant to the charges in

21 this particular indictment, given that the report refers to Pusic's

22 alleged activities with the Serbs, and note also, Your Honours, you may

23 recall that the Prosecution have also clarified, in the course of their

24 closing submissions, that Mr. Pusic didn't join the JCE until April 1993,

25 yet they're relying on documentation that dates back to a point far

Page 52744

1 earlier in time in October of 1992.

2 Your Honours, we are going to devote some time to this particular

3 document simply because it's highlighted by the Prosecution in their

4 closing brief at paragraphs 1026, 1193, 1247, and 1267. Our position is

5 that the assertions made by the Prosecution on the basis of this document

6 are not reliable.

7 Firstly, this document is a SIS report which is compiled on the

8 basis of sources that are unknown. And, Your Honours, I don't intend to

9 belabour this point. We have the same position that we adopted in the

10 joint Defence motion that was filed on the 7th of January, 2008, in

11 response to the documentary evidence motion filed by the Prosecution.

12 The second point that we would make in respect to this particular

13 exhibit is that this is a document that the Prosecution should have

14 tendered through a witness. We submit the Prosecution should have

15 brought a witness to testify about these allegations, given that they now

16 form a central plank of their case against Mr. Pusic.

17 May I also clarify, Your Honours, that we do not accept any of

18 the allegations made in this document. We say that no weight whatsoever

19 should be attached to them. However, we will, in the course of my

20 submissions, highlight various contradictions that arise from the

21 Prosecution's reliance on this type of material.

22 One of the characteristics of the Prosecution's presentation of

23 their case, we submit, is that as with this particular document, P0663,

24 there are a number of other critical documents that were never put to

25 witnesses in this case, yet they are now given some prominence in the

Page 52745

1 course of the final arguments, either written or oral. It's a particular

2 cause for concern for the Pusic Defence, given the relatively small

3 amount of time that's been spent focusing on Mr. Pusic, and, Your Honour,

4 it's a cause for concern that the Prosecution place so much emphasis on

5 this type of material when it should have been, could have been, shown to

6 a relevant witness. And, Your Honours, the fact that it wasn't shown to

7 a relevant witness reinforces our submissions to the effect that the

8 Prosecution have failed to meet their evidential burden, that they have

9 taken their eye off the ball when it comes to Mr. Pusic. This is nothing

10 more, this document, than uncorroborated documentary hearsay.

11 And we do note that the Chamber has acknowledged in this

12 decision, in other decisions, to admit documentary evidence, that the

13 Chamber will determine how much weight to attach to this type of material

14 in its final deliberations. At this juncture, Your Honours, we would

15 respectfully ask the Chamber to reflect on the approach taken by the

16 Trial Chamber in the case of Haradinaj. And, Your Honours, you have on

17 the screens in front of you an extract from that trial judgement at

18 paragraph 18. I don't intend to recite the entire contents of that

19 particular extract, save to highlight the last sentence:

20 "As a general rule, the less the Trial Chamber knew about a

21 document, the circumstances of its creation and usage, the less weight it

22 gave to it."

23 And, Your Honours, if I may also refer to the following

24 paragraph -- the next paragraph in that particular decision from the same

25 Trial Chamber, paragraph 19. Once again, I don't intend to read out the

Page 52746

1 entire extract, but, Your Honours, we would refer you to the approach

2 taken by the Haradinaj Trial Chamber, where it was held that:

3 "In general, the Trial Chamber clarified that it attached little,

4 if any, weight to unexplained opinions and untested hearsay, and that an

5 accumulation of such evidence did not necessarily make it stronger."

6 The last point I wish to make about this particular document,

7 P0663, is or relates to what you may consider, Your Honours, to be a lack

8 of consistency in the Prosecution's approach to the weight to be attached

9 to SIS documents in general. We submit that when the Prosecution have

10 adduced a SIS document, when the contents of that document tends to

11 support their case, then it has followed that the Prosecution say that

12 that document is a reliable piece of evidence. However, when, in similar

13 circumstances, the Defence have tried to rely on a SIS document, and

14 I can identify one particular instance when Mr. Karnavas presented a SIS

15 document to try and impeach the Witness Smajkic, and that's -- you will

16 find a reference to that in transcript at page 2882, there was an

17 objection raised by the Prosecution on the basis that that document may

18 have been manufactured and was not, therefore, prima facie reliable.

19 Your Honour, we say that this approach smacks of double standards.

20 Your Honours, we have no doubt that you are faced with a

21 formidable task in going through a mountain of material in the coming

22 months, and that you will go through this material and look at it with

23 great scrutiny, but we hope that you will not fall victim to the

24 Prosecution's suggestions that you find Mr. Pusic guilty based on the

25 assumption, conjecture, or speculation contained in uncorroborated

Page 52747

1 documents such as these. Moreover, whatever the scenario, Your Honours,

2 I submit to you that this amounts to nothing more than a form of gossip,

3 and gossip is too unreliable to use as a basis to convict.

4 Your Honours, if I can pick up now the evidence in April 1993,

5 which is a very important date, according to the Prosecution theory of

6 the case, because it is the date when Mr. Pusic is said to enter the JCE.

7 It's also claimed in the Prosecution's brief that in April 1993,

8 Mr. Pusic held a commanding position with substantial authority in the

9 Military Police Crime Prevention Department and that he was involved in

10 processing detainees and dealing with prisoners. And, Your Honours, you

11 will find a reference to that at paragraph 1194 of the Prosecution's

12 final trial brief. We do not dispute that the evidence shows that

13 Mr. Pusic was employed by the Military Police Crime Prevention Department

14 at that time. However, we do submit that the Prosecution have failed to

15 show what position he held. And we also would like to highlight the fact

16 that the documents that the Prosecution rely on to substantiate their

17 assertion that Mr. Pusic held a commanding position all pre-date -- or

18 generally pre-date April 1993, and I will comment on three of these

19 documents very briefly.

20 The first is P1605. This is a document that we submit confirms

21 little more than the fact that Mr. Pusic was on the payroll of the

22 military police in March 1993. It doesn't tell you what post he

23 occupied. Furthermore, P1393 is a Crime Prevention Department report.

24 It's dated February 1993, and it merely shows that Mr. Pusic was one of

25 three military police personnel interviewing detainees held at the

Page 52748

1 Ljubuski detention facility. The third document is dated the 14th of

2 October, 1992. Your Honours, we will provide you with the reference to

3 that document in due course. We submit that this document does not

4 establish, as the Prosecution allege -- does not establish that Pusic had

5 any powers to order inmates to undertake forced labour assignments. The

6 document refers not to prisoners of war or to detainees in the course of

7 the conflict, but to convicts that were held by the HVO.

8 And, Your Honours, we also would like to put forward this

9 proposition: that there are two recurring patterns in the Prosecution's

10 submissions that these documents highlight. The first is that, again,

11 these three documents are now said to be very important, they are now

12 said to be central to the case against Mr. Pusic, yet they have never

13 been shown to a witness. The second pattern that these documents reveal

14 is that they provide further evidence of the Prosecution making

15 assertions which do not stand up to any close scrutiny.

16 So, Your Honours, in respect to the evidence concerning

17 Mr. Pusic's role with the military police in April 1993 --

18 JUDGE ANTONETTI: [Interpretation] Please slow down, because the

19 French booth is lagging behind you. So please slow down as much as

20 possible, and now please continue.

21 MR. SAHOTA: I'll just recap, then, Your Honours, on the last

22 point that I was making, which is that: We say that the evidence, at its

23 highest, insofar as it concerns Mr. Pusic's role and function in April

24 1993, goes to show that Mr. Pusic was employed by the military police as

25 a control officer of unspecified rank and responsibility; nothing more

Page 52749

1 than that.

2 Your Honours, in May 1993, the Prosecution alleged that Mr. Pusic

3 acquired another hat, that he became a permanent liaison officer to

4 UNPROFOR, and this is based on an order that is purportedly issued by

5 Bruno Stojic on the 11th of May, 1993. You'll find further particulars

6 of that allegation at paragraph 13 of the indictment. We submit that

7 this assertion is patently incorrect and it has been flatly contradicted

8 by the evidence of one of the Prosecution's own witnesses from SpaBat.

9 That's Witness BJ.

10 Witness BJ testified that what has been described as an order

11 from Bruno Stojic did not appoint Mr. Pusic to be a permanent liaison

12 officer. It simply put him in charge of contact with UNPROFOR in one

13 particular instance. And, Your Honours, you can find further

14 elaboration/discussion of that point at paragraph 80 of the Pusic Defence

15 final trial brief, and we submit this is yet another instance where the

16 Chamber simply can't rely on the assertions made by the Prosecution.

17 And, Your Honours, despite the fact that this was highlighted in our

18 written final trial brief, this is not an assertion that's been retracted

19 by the Prosecution in their closing oral submissions.

20 This allegation is also a matter of concern because we submit,

21 Your Honours, that it provides an example of the Prosecution expanding

22 their case against Mr. Pusic because it's also claimed in the

23 Prosecution's final trial brief, at paragraph 1204, that Mr. Pusic's role

24 as a liaison officer was wider than that. His dealings were restricted

25 not just to SpaBat. Your Honours, that's an allegation that's not

Page 52750

1 previously -- that has not been previously advanced in the Prosecution's

2 pre-trial brief or in the course of their Rule 98 bis submissions. So

3 this allegation of a wider liaison role is not mentioned at all in the

4 indictment. Your Honours, we submit it's unfair to the accused that he

5 should have to respond to what constitutes, in reality, a fresh

6 allegation, an allegation that should have been particularised at an

7 earlier point. In summary, Your Honours, we submit that the Prosecution

8 should not be allowed to use the indictment as a moving target.

9 The next point in the chronology that we pick up on is the 22nd

10 of April, 1993. That's another key date, as far as the Prosecution is

11 concerned, because they claim that from that point onwards, Mr. Pusic had

12 primary responsibility for exchanges. And you'll find that assertion at

13 paragraph 1196 of the Prosecution's final trial brief. That allegation

14 is based on a document, P02020, which you have before you on the

15 PowerPoint presentation, which states and relays an order from

16 Valentin Coric which states that:

17 "Mr. Pusic is charged with participating on behalf of the

18 Military Police Administration in the exchange of all arrested persons."

19 The critical word there, Your Honours, is "participating." We

20 submit that that's a term that's entirely open to interpretation. And,

21 Your Honours, we raise the question of whether it's reasonable to adduce

22 from this document that Pusic had primary responsibility for exchanges or

23 whether there's another reasonable inference that arises, which is that

24 Pusic was not conferred with any decision-making powers as a consequence

25 of this particular document. Your Honours, we say that the Chamber would

Page 52751

1 need to look at other corroborated evidence, if it exists, to see what

2 the true significance of that order is.

3 Your Honours, in reference to this particular allegation that

4 Mr. Pusic had primary responsibility for exchanges, you'll note that at

5 paragraph 288 of our final trial brief, we highlight the fact that there

6 were a number of other HVO bodies who were also engaged in prisoner

7 exchanges. Most prominently and most importantly -- there were four

8 bodies, but most importantly amongst those four bodies is the HVO

9 Exchange Commission headed by Maric. This is a commission - we have

10 labelled it the Maric Commission - that had been in operation and

11 existence since 1992, and it may be relevant, Your Honours, for you to

12 note that Maric was an individual, who was head of that commission,

13 attended far more sessions of the HZ-HB Cabinet than Mr. Pusic ever did.

14 And, Your Honours, that's a point that's further elaborated on in our

15 brief at paragraph 228.

16 Any examination of Mr. Pusic's role in releases and exchanges,

17 which also form one of the most important limbs of the Prosecution's

18 case, we submit, cannot be -- cannot take place without some

19 consideration of the political context at the time. We take the position

20 that the -- that an examination of the facts reveals that decisions

21 regarding prisoner exchanges and prisoner releases, particularly

22 decisions regarding HVO policy in those areas, those decisions were taken

23 at a far higher level than Mr. Pusic's modest station.

24 And, Your Honours, we would like at this juncture to look at

25 Mr. Pusic's role in an exchange meeting that took place on the 4th of

Page 52752

1 May, 1993, at Jablanica, because careful examination of Mr. Pusic's role

2 in that particular event shows that his input was clearly insignificant.

3 According to the Prosecution, this was a high-level meeting where

4 Mr. Pusic played an important role. And, Your Honours, we've examined

5 this meeting. Our submissions are outlined at paragraph 223 of our final

6 trial brief.

7 You may recall during the course of the Prosecution's final

8 submissions that they played clips from two video-recordings, the first

9 from a video, Exhibit P02187, where it was said that Mr. Pusic could be

10 seen sitting on the same table as other senior members of the BiH Army.

11 However, Your Honours, you may have noticed or you may recall that in the

12 course of that clip, there was no dispute -- there can be no dispute that

13 Pusic was only engaged in a discussion concerning the exchange of the

14 sick and wounded. And this meeting is also important in respect of

15 Pusic's Defence because it does appear to be the first occasion when

16 Mr. Pusic comes across General Petkovic. General Petkovic gave evidence

17 in regards to this meeting, and, Your Honours, you'll see from the

18 PowerPoint presentation screen in front of you that he made it clear, in

19 the course of his evidence, that the first time he came into direct

20 contact with Mr. Pusic was during the course of these talks.

21 General Petkovic also made it clear that his job was such that he didn't

22 have any further contact with Mr. Pusic. And His Honour the

23 Presiding Judge, Judge Antonetti, went on to say:

24 "Very well. Then there's no point in my asking you whether he

25 referred to Greater Croatia, et cetera, talking to you, because you said

Page 52753

1 you hardly ever saw him, so the question doesn't arise."

2 Your Honour, that extract from the trial record can be found at

3 page 49799.

4 Petkovic also gave further evidence about this meeting when he

5 confirmed that Mr. Pusic's role was wholly insignificant, as Pusic's role

6 was restricted to dealing with the sick and injured from Sovici and

7 Doljani. And, Your Honours, you'll find the reference to that would be

8 transcript record page 49501. Your Honours, we submit that

9 General Petkovic had no reason to lie and no reason to minimise

10 Mr. Pusic's role at that particular meeting.

11 The Prosecution say that this was a high-level meeting, but, on

12 the contrary, General Petkovic makes it clear that Mr. Pusic's presence

13 was not considered significant by him.

14 The Chamber may also recall that the same footage from that

15 particular video also contains footage of a dispute between a

16 representative of the HVO, Bagaric, and General Halilovic. There was a

17 heated discussion, and it's clear from that that Mr. Pusic does not

18 feature prominently in that exchange. And, Your Honours, if you -- if

19 you were to examine the Exhibit P02187, between -- from 3:31 to 4:20 or

20 transcript pages 1 to 32 relating to the same exhibit, you would find

21 that there is very little, if no reference to Mr. Pusic in the contents

22 of that particular document.

23 The second video that the Prosecution relied in the course of

24 their submissions concerning the 4th of May meeting in Jablanica was

25 Exhibit P0999. In the course of that video, you may recall that the

Page 52754

1 Prosecution highlighted a reference to Mr. Pusic from a television

2 journalist, where Mr. Pusic was described as a negotiator. Now, Your

3 Honours, we don't necessarily agree that Mr. Pusic was a HVO

4 representative or negotiator, but even if it was -- even if he was, it

5 does not follow that he necessarily had decision-making powers.

6 Your Honours, it's up to the Trial Chamber to decide what the

7 truth is beyond reasonable doubt, but we would ask you to take heed of

8 the careful forensic approach taken by the Milutinovic Trial Chamber when

9 determining the significance and weight to be attached to evidence

10 concerning Milutinovic's participation in numerous meetings. I'm not

11 saying that there were any obvious parallels that can be drawn between

12 the case against Mr. Milutinovic and that against Mr. Pusic. I would

13 only merely suggest that the forensic approach taken by the Milutinovic

14 Trial Chamber should be adopted in this case.

15 At paragraph 25 of the Milutinovic trial judgement, the

16 Trial Chamber noted that Mr. Milutinovic had given two morale-boosting

17 speeches at meetings that he'd attended. However, in the Trial Chamber's

18 view, his conduct did not constitute a significant contribution to the

19 joint criminal enterprise. Nor did the Milutinovic Trial Chamber take

20 the view that Milutinovic's conduct at other meetings had a substantial

21 effect on the commission of other crimes. And, Your Honours, if I can

22 refer you to paragraph 281 of the Milutinovic trial judgement, there is

23 further reference to Milutinovic's conduct in providing a number of

24 morale-boosting speeches to officials, and the trial judgement reads

25 that:

Page 52755

1 "These two factors on their own, however, in the context of such

2 a large case with a multiplicity of players, cannot be said to have had a

3 substantial effect on the commission of the crimes of displacement which

4 were committed from late March 1999 onwards."

5 I would like to turn now to discuss the evidence concerning the

6 events in Mostar that took place between the 7th and 9th of May, 1993.

7 The evidence indicates that Mr. Pusic was still employed by the military

8 police at this time. If we accept the testimony of Josip Praljak,

9 Mr. Pusic's role in the arrest and detention of Muslim residents in

10 Mostar, and their delivery to the Heliodrom, was restricted to their

11 release or to the release of some of the detainees interned between those

12 dates and thereafter in the course of May.

13 Josip Praljak testified that Pusic would regularly telephone him

14 with lists of detainees to be released. The Prosecution seek to draw the

15 inference from that testimony that Pusic had the power to decide who

16 could be released. We question whether that is the only reasonable

17 inference that can be drawn from Josip Praljak's evidence, given that

18 Praljak had no knowledge of the internal procedures that Pusic had to

19 follow. And we submit that even if this evidence is taken at its

20 highest, even if Praljak is accepted as credible on this issue, all the

21 evidence shows is that Pusic transmitted lists, lists containing names of

22 detainees to be released, from the military police to Mr. Praljak. And,

23 in any event, even if you were to find that Mr. Pusic was involved in

24 expediting the release of these detainees, we submit that Mr. Pusic acted

25 entirely correctly in doing so.

Page 52756

1 And if I may refer the Chamber to Josip Praljak's testimony on

2 this point in relation to a document P02260. This is a note prepared by

3 Stanko Bozic, recording a call from Pusic, with a request for the release

4 of detainees held at the Heliodrom. In responses to questions from His

5 Honour Judge Antonetti, Josip Praljak confirms that the people that had

6 been detained at this time at the Heliodrom had no place there and should

7 have been released. To be more precise, he's asked:

8 "What I'm saying is, if Mr. Pusic acted as is written down in the

9 Official Note, was that the right decision when he said --"

10 JUDGE ANTONETTI: [Interpretation] Mr. Praljak, what is the

11 problem?

12 THE ACCUSED PRALJAK: [Interpretation] Your Honours, could

13 everyone please say "Josip Praljak," because later on a confusion might

14 arise, because there's Slobodan Praljak and there's Josip Praljak.

15 MR. SAHOTA: I apologise to General Praljak. I'll try and take

16 heed of his observation.

17 Josip Praljak testified, in response to the question from His

18 Honour Judge Antonetti, that:

19 "Well, not only those people, but none of the other people either

20 should have been there."

21 He was then asked:

22 "And then you testified that the people left Heliodrom very

23 quickly after that, these people?"

24 He answered: "Yes."

25 Your Honours, the evidence shows that almost all those civilians

Page 52757

1 that were detained between the 7th to the 9th of May, 1993, were released

2 by the end of that month. Subsequent to that, subsequent to the events

3 of the 7th to the 9th of May, there were meetings, a number of

4 negotiations between HVO and BiH representatives that continued until the

5 end of June. In our final brief, we have examined the evidence

6 concerning Mr. Pusic's role at these meetings, and we submit that

7 although Mr. Pusic may have been present at some of these exchange

8 meetings, the facts of his involvement do not support the Prosecution's

9 case that he had primary responsibility for prisoner exchanges. Indeed,

10 the evidence indicates that at the high-level meetings that took place

11 after the 12th of May, 1993, meetings that were to arrange the release of

12 those Muslims arrested in Mostar and other issues such as humanitarian

13 aid, the evidence suggests that General Petkovic and Halilovic were the

14 main negotiators until Delic replaced Halilovic in June 1993.

15 Your Honours, we also submit that there is a valid distinction to

16 be made between high-level negotiations that were taking place at this

17 time and low-level talks that were also occurring, and the distinction is

18 one that is identified by the Prosecution Witness Watkins and also by

19 Prosecution Witness Masovic. Our case is that Mr. Pusic was involved

20 primarily in low-level talks, where he dealt with lower-ranking BiH

21 officials such as Alikadic. And, Your Honours, we have developed those

22 submissions in more detail at paragraphs 56 to 58 of our final trial

23 brief and also at paragraphs 74 to 81. But there is one point that

24 highlights our submissions, and this is the fact that there is no

25 evidence that Mr. Pusic attended any of the highest-level talks in Geneva

Page 52758

1 throughout 1993 or any of the highest-level talks in Sarajevo, talks that

2 normally took place at Sarajevo Airport.

3 Your Honours, any discussion of exchange negotiations in 1993

4 must also include some reference to political machinations occurring at

5 the various highest diplomatic and political levels. We submit that

6 there is very little evidence to link Mr. Pusic to key events and

7 meetings at those levels throughout the entire indictment period. There

8 is, for instance, no link between Mr. Pusic and the talks that took place

9 on the 20th of July, 1993, between Galbraith and Boban, and on the same

10 date, Izetbegovic issues a decision for the release of all captured

11 soldiers and civilians. And, Your Honours, that's a point that is

12 developed at paragraph 243 of our final trial brief. There's also no

13 link between Mr. Pusic and the joint agreement signed by Tudjman and

14 Izetbegovic on the 14th of September, 1993, one of the major milestones

15 in the course of the negotiations between the HVO and the ABiH during the

16 course of that summer.

17 It's also relevant to note, we submit, that on the following day,

18 on the 15th of September, 1993, Mate Boban issues an order to ensure that

19 the conditions at the detention centres run by the HVO are compatible

20 with the requirements of International Humanitarian Law. The order also

21 requires ICRC to have access to all facilities. What is particularly

22 relevant about this order is -- as far as the Pusic Defence is concerned,

23 is the fact that it's not circulated to Berislav Pusic. And again, Your

24 Honours, we would refer you to paragraphs 240 and 243 of our final trial

25 brief. The document in question is P5104.

Page 52759

1 One of the Prosecution's main witnesses in relation to

2 Mr. Pusic's role concerning prisoner release and exchanges is Cupina.

3 Cupina claimed that Pusic was the Alpha and Omega of release and exchange

4 matters, and that's a quote, Your Honours, that's cited in the

5 Prosecution's final trial brief at paragraph 1209, and it's a quote that

6 was repeated in the course of -- it's repeated in the course of their

7 closing submissions, and that's transcript reference 44908.

8 Cupina's evidence is dealt with in our trial brief at paragraphs

9 188 to 197, and we've dealt with his evidence in some detail. In

10 summary, we say that his testimony is incapable of belief. And we note

11 that the Chamber has already recognised that they have reservations about

12 his credibility that may seriously affect the reliability of his

13 testimony, and we rely on a decision rendered by the Trial Chamber on the

14 3rd of November, 2006, in response to a request from the Defence for

15 General Praljak. Your Honours, we suggest that no weight should be given

16 to the evidence of Mr. Cupina.

17 Your Honour, in relation to events before the 5th of July, the

18 last document that I want to refer to briefly is P02546. This was

19 referred to in the course of the Prosecution's closing oral submissions,

20 and that reference can be found at transcript page 52148. The document

21 is a report on the activities of the HVO military police, dated the 28th

22 of May, 1993. It records that an order had been received from

23 Berislav Pusic and Coric to transfer the prisoners to the prisons on the

24 Heliodrom. In their interpretation of this document in their closing

25 submissions, the Prosecution put Mr. Coric and Mr. Pusic on the same

Page 52760

1 footing, and, Your Honours, we highlight that because we suggest and

2 submit it's important for the Trial Chamber to know that there are

3 contradictions in both the Prosecution's final brief and in their closing

4 arguments in regard to what they claim the positions are taken by each of

5 the co-accused, and we raise the question of whether the only inference

6 that can be drawn from this document is the inference that Mr. Pusic had

7 decision-making authority, or whether there is any other reasonable

8 inference available from this material; namely, that Mr. Pusic's role was

9 restricted to that of a messenger in this scenario.

10 I would now like to move on to the second phase of our

11 submissions, which deals with the evidence concerning events after the

12 5th of July, 1993, which is the date that Mr. Pusic is appointed head of

13 the Service of Exchange. Your Honours, if I could briefly make a general

14 observation about the Service of Exchange and also the 6th of August,

15 1993, commission.

16 Our position is that Mr. Pusic had no de jure or de facto powers

17 arising as a consequence of either appointment. The titles that he was

18 given may sound grand, but we would remind you of a quote from

19 George McGovern, the American politician, who said that:

20 "The longer the job title, the less important the job."

21 Your Honour, the Service for Exchange was conceived on the 5th of

22 July, 1993, and we submit that from that very moment onwards, there is no

23 evidence that Mr. Pusic was conferred with any de jure authority over any

24 limb of the HVO military apparatus, that he had no de jure authority over

25 any military personnel as a consequence of that appointment, and, Your

Page 52761

1 Honours, we also submit that the evidence suggests that the Service for

2 Exchange was not part of the civilian structure either. The evidence

3 does not show that the Service for Exchange was required to report to the

4 HVO HZ-HB Cabinet, and that's a point that we have outlined at

5 paragraph 85 of our closing submissions. The evidence does not show

6 that, as a consequence of his appointment to the Service for Exchange,

7 Mr. Pusic was subordinated and required to report to Jadranko Prlic. The

8 evidence suggests that the Service for Exchange was a stand-alone body,

9 and we say that that conclusion is entirely consistent with its role as a

10 service providing technical advice.

11 It was the Prosecution's expert, Tomljanovich, who confirmed that

12 the Service for Exchange's remit was strictly defined at the time it was

13 created, and it was strictly defined, in his words, so that the service

14 was:

15 "... charged with providing the technical support for the HVO

16 HZ-HB, in particular the Commission for Exchange of Prisoners and Other

17 Persons ."

18 Your Honours, it's up to you to decide if you consider our use of

19 a selective quote from the Prosecution's own expert to be unfair.

20 Turning now to the 6th of August, 1993, commission, this is

21 another important moment in the Prosecution's case. The Prosecution

22 allege that as a consequence of this appointment, Mr. Pusic began

23 releasing detainees. And, Your Honours, you'll find a reference to that

24 at paragraph 595 of the Prosecution's final trial brief. The Prosecution

25 also contend that Mr. Pusic's appointment amounts to a natural expansion

Page 52762

1 of his role. Further elaboration of that can be found at paragraph 1202

2 of the Prosecution's final trial brief. During their oral closing

3 submissions, the Prosecution said as follows:

4 "Bruno Stojic, he placed the responsibility and power to release

5 and exchange prisoners upon Mr. Pusic's shoulders when he set up the

6 commission on the 6th of August, 1993. And that's Exhibit P03995.

7 Mr. Pusic exercised this responsibility throughout the rest of 1993. He

8 often did this without following the outlined procedures, as we have

9 seen, of engaging with the SIS and military police concurrence or

10 involving other commission members."

11 Your Honours, that's transcript reference 52156.

12 Your Honours, we submit that the evidence of Josip Praljak points

13 to the fact that the commission never took effect and existed only on

14 paper. Josip Praljak gave evidence about his role in the commission,

15 because he was appointed as one of its five members, and said as follows.

16 He was asked:

17 "But let me go back. When you received this order," this is an

18 order notifying him of his appointment to the commission, "you said that

19 you talked to Mr. Pusic over the telephone about the work of that

20 commission and that Mr. Pusic said, 'We'll do the work.'"

21 He answered: "Yes."

22 "After that, had you no further contact with Mr. Pusic in respect

23 to this commission, did you, nor do you mention this in your diary at

24 all? I find no entry to that effect."

25 He answered: "No, we never had a meeting."

Page 52763

1 And that's transcript reference 14974.

2 Josip Praljak went on to say that he had no further contact with

3 Mr. Pusic regarding the work of the commission and that Mr. Pusic never

4 wrote to him concerning the commission. Praljak continued and confirmed

5 that he never spoke to or met with any other members of the commission in

6 an official capacity. And, Your Honours, that's a point that we've

7 explored in further detail at paragraph 96 of our final trial brief.

8 Other factors that the Trial Chamber may wish to take into

9 account when considering what weight to attach to this evidence

10 concerning the commission relates to the absence of any documentation

11 produced by it and to the fact that the commission is never referred to

12 in any HVO HZ-HB Cabinet meetings. And, Your Honours, that is a point

13 that we have outlined at paragraphs 100 to 103 of our final trial brief.

14 It's also interesting to note that the Prosecution's position on

15 the 6th of August commission seems to be somewhat contradictory. At

16 paragraph 319 of the final trial brief, the Prosecution assert that:

17 "In fact, Pusic's commission never convened, a fact commission

18 member made known to Stojic."

19 Your Honours, it's not clear, in light of that reference, whether

20 the Prosecution agree with the submissions advanced by the Defence, that

21 the commission never functioned at all, or whether they don't. It's also

22 correct to say that the Prosecution never challenged the evidence of

23 Josip Praljak on this point. We submit the Prosecution can't have it

24 both ways and that this evidence goes to show, once again, that the

25 Prosecution have failed to discharge their evidential burden, that they

Page 52764

1 have taken their eye off their ball when they're dealing with Mr. Pusic.

2 On the 12th of August, 1993, the Prosecution allege that

3 Mr. Pusic prepared a proposal concerning the work of the commission, and

4 this document is Exhibit P04141, and it's a document that's referred to

5 in the indictment at paragraph 17.6(G). Your Honours, we don't intend to

6 dwell on this particular document, because we say that far too much

7 significance has been given to it by the Prosecution. It is just a

8 proposal. There is no evidence that proposal was ever acted on. This

9 document does not, in our submission, establish that Pusic had any

10 decision-making powers. And, Your Honours, a review of the evidence

11 concerning, for instance, the categorising and cataloging of prisoners

12 suggests that there were other HVO bodies that were actually responsible

13 for those tasks.

14 Concerning prisoner exchanges in the latter half of 1993, there

15 are two inter-connected limbs of the Prosecution's case that we would

16 like to address.

17 At paragraph 1249 of the Prosecution's final trial brief, it said

18 that Mr. Pusic obstructed and frustrated exchanges, and one of the ways

19 he is alleged to have achieved this is through advocating -- insisting on

20 "one for one" exchanges. We will deal with the wider allegation of

21 obstruction first.

22 And, Your Honours, may I ask that we go into private session.

23 JUDGE ANTONETTI: [Interpretation] Yes, Madam Registrar.

24 [Private session]

25 (redacted)