1. 1 Friday, 7th May, 1999

    2 (Judgement)

    3 (Open session)

    4 --- Upon commencing at 9.04 a.m.

    5 JUDGE RODRIGUES: Please be seated.

    6 Mr. Registrar, can you ensure that Mr. Aleksovski is

    7 brought in, please?

    8 (The accused entered court)

    9 JUDGE RODRIGUES: Good morning, ladies and

    10 gentlemen. Good morning to the Defence counsel, good

    11 morning to counsel for the Prosecution, good morning to

    12 the interpreters, to the court reporters also.

    13 Mr. Registrar, can you call the case,

    14 please?

    15 THE REGISTRAR: Case IT-95-14/1-T, the

    16 Prosecutor versus Zlatko Aleksovski.

    17 JUDGE RODRIGUES: Thank you very much,

    18 Mr. Registrar.

    19 Can we have the appearances, please? First,

    20 for the Prosecution.

    21 MS. HOLLIS: Good morning, Your Honours.

    22 Mr. Grant Niemann is absent on mission. In his

    23 absence, I, Brenda Hollis, appear for the Prosecutor,

    24 along with my colleagues, Mr. Anura Meddegoda and

    25 Mr. Dan Saxon.

  2. 1 JUDGE RODRIGUES: Thank you very much. For

    2 the Defence, please? Mr. Joka, I believe.

    3 MR. JOKA: Good morning, Your Honours. My

    4 name is Srdan Joka, and in this case, I am the Defence

    5 counsel, the only one at present, for Mr. Zlatko

    6 Aleksovski.

    7 JUDGE RODRIGUES: Mr. Aleksovski, in a few

    8 moments, I shall read the decision taken by the Trial

    9 Chamber relating to the crimes with which you have been

    10 charged; namely, inhuman treatment, the fact of

    11 wilfully causing great suffering or serious injury to

    12 body or health, outrages upon personal dignity. But

    13 before that, I would like to remind everybody of the

    14 background of your trial.

    15 The crimes that have been held against you

    16 took place between the months of January and May 1993.

    17 I shall also remind everyone that the Tribunal Statute

    18 was adopted by the Security Council of the United

    19 Nations on May 25th, 1993.

    20 These facts took place in Central Bosnia in

    21 the Lasva Valley in the area of Busovaca; more

    22 precisely, in Kaonik. Kaonik lies at the meeting point

    23 of several roads leading in the north-west to Vitez, in

    24 the north towards Zenica, to the south towards

    25 Busovaca, and beyond towards Kiseljak and Sarajevo.

  3. 1 The victims of the crimes which have been

    2 brought against you are, for the majority of them,

    3 Muslim individuals who found themselves in this area

    4 and who, after having been arrested by Croat armed

    5 forces of Bosnia, were led to Kaonik prison, at which

    6 you were the warden.

    7 An indictment was brought against you, as

    8 also against other individuals, by the Office of the

    9 Prosecutor. This indictment was confirmed on November

    10 10th, 1995, and an arrest warrant was issued against

    11 you. On June 8th, 1996, the Croat authorities arrested

    12 you and placed you in detention. It was only on April

    13 28th, 1997, that Croatia transferred you to the

    14 detention unit of the United Nations in The Hague.

    15 Your initial appearance took place the very next day

    16 before the Judges of this Tribunal. You pleaded not

    17 guilty.

    18 Your trial proper started before this Trial

    19 Chamber on January 6th, 1998, and ended on March 23rd,

    20 1999. Since that date, my colleagues and I have been

    21 deliberating, assessing, and reviewing all the

    22 evidence, briefs, and written documents of the trial.

    23 The conclusions which we have reached have

    24 seemed of such a nature that they justify amply the

    25 fact that the hearing be organised in the shortest of

  4. 1 delays, without waiting for the final judgement to be

    2 put down in writing. This judgement will be made public

    3 as early as possible, but the urgency seems to be such

    4 that we have not waited for the return of the senior

    5 trial attorney of this trial, Mr. Grant Niemann, to

    6 which I would like to pay homage. May he be made aware

    7 that we are very sorry that he is not present today for

    8 we have always been very pleased with his work. I

    9 would like to say the same for Mr. Mikulicic: We are

    10 very sorry not to see them here today.

    11 Mr. Aleksovski, I shall now read the decision

    12 of the Trial Chamber. Would you please rise,

    13 Mr. Aleksovski?

    14 The Trial Chamber, noting Articles 2, 3, 7,

    15 20, 21, 23, and 24 of the Statute of the Tribunal and

    16 Rules 98 ter, 101, and 108 of the Rules of Procedure

    17 and Evidence;

    18 Noting that Zlatko Aleksovski is charged,

    19 according to Article 2 of the Statute of the Tribunal,

    20 of serious violations of the Geneva Conventions of

    21 1949, or grave breaches of the said Geneva Conventions,

    22 ("inhuman treatment" and "wilfully causing great

    23 suffering or serious injury to body or health"

    24 respectively) and charged as proscribed by Article 3

    25 common to the Geneva Conventions of 1949 with a

  5. 1 violation of the laws and customs of war ("outrages

    2 upon the personal dignity") mainly on the basis of the

    3 following factual allegations set out in paragraph 31

    4 of the indictment:

    5 "From January 1993 until at least the end of

    6 May 1993, Zlatko Aleksovski accepted hundreds

    7 of detained Bosnian Muslim civilians from the

    8 HVO or their agents into his custody at the

    9 detention facilities in Kaonik. The

    10 detainees were from a widespread area,

    11 including but not exclusive to Vitez and

    12 Busovaca municipalities. Many of the

    13 detainees under his control were subjected to

    14 inhumane treatment, including, but not

    15 limited to, excessive and cruel

    16 interrogation, physical and psychological

    17 harm, forced labour (digging trenches) in

    18 hazardous circumstances, being used as human

    19 shields and some were murdered or otherwise

    20 killed."

    21 Noting that Zlatko Aleksovski was arrested on

    22 June 8th, 1996, in the territory of the Republic of

    23 Croatia by the Croatian police acting pursuant to an

    24 arrest warrant issued by the Tribunal and that, after

    25 having spent ten months and twenty days in detention in

  6. 1 the Republic of Croatia, he was transferred to the

    2 Tribunal's detention unit at The Hague on April 28th,

    3 1997;

    4 Noting that the trial against Mr. Zlatko

    5 Aleksovski commenced on January 6th, 1998 and ended on

    6 23rd March, 1999, when the hearing was declared closed

    7 pursuant to Rule 87 of the Rules;

    8 Having reviewed carefully all the evidence

    9 presented to the Trial Chamber during the course of the

    10 trial along with the written and oral submissions of

    11 the Office of the Prosecutor and the Defence counsel;

    12 Emphasising that the result of its

    13 deliberations compels the Trial Chamber to issue today

    14 a brief summary of its factual and legal findings, the

    15 full text of which will be presented in writing at a

    16 later date;

    17 Considering that at the material time a state

    18 of armed conflict existed between the armed forces of

    19 the Bosnian Croats and the Bosnian Muslims and

    20 considering that a nexus existed between that armed

    21 conflict and the alleged criminal conduct of Zlatko

    22 Aleksovski;

    23 Considering that a majority of the Trial

    24 Chamber deems that Article 2 of the Statute can apply

    25 only where the alleged offence is committed against

  7. 1 persons regarded as "protected persons" within the

    2 meaning of the Geneva Conventions of 1949 and that, in

    3 the present case, it has not been proved that the

    4 victims of the acts ascribed to Zlatko Aleksovski were

    5 such "protected persons";

    6 Considering that the legal consequence of the

    7 previous finding must be that Zlatko Aleksovski be

    8 declared not guilty of the two counts of grave breaches

    9 which rely upon Article 2 of the Statute; namely,

    10 Counts 8 and 9 of the indictment;

    11 Considering that the Trial Chamber

    12 unanimously determines that severe beatings and other

    13 forms of violence with acute physical and psychological

    14 consequences which were inflicted on some detainees at

    15 Kaonik prison constitute violations of Article 3 of the

    16 Statute;

    17 Considering that it has been proven beyond

    18 reasonable doubt that Zlatko Aleksovski participated in

    19 the commission of such violations to the extent

    20 necessary to hold him criminally responsible in respect

    21 of those violations pursuant to Article 7(1) of the

    22 Statute;

    23 Considering that it has been proven beyond

    24 reasonable doubt that Zlatko Aleksovski, as the

    25 commander (or director or warden) of Kaonik prison,

  8. 1 knew or had reason to know that persons in a

    2 subordinate position to that of himself were about to

    3 commit crimes or had done so and that Zlatko Aleksovski

    4 failed to take the necessary and reasonable measures to

    5 prevent such crimes or to punish the perpetrators

    6 thereof and that Zlatko Aleksovski therefore should be

    7 held criminally responsible in respect of those crimes

    8 pursuant to Article 7(3) of the Statute;

    9 Considering that Articles 23 and 24 of the

    10 Statute and Rule 101 of the Rules lay down the

    11 sentencing guidelines for determining the appropriate

    12 sentence in respect of a finding of guilt;

    13 Considering that a convicted person, pursuant

    14 to Sub-rule 101(D) of the Rules, is entitled to credit

    15 "for the period, if any, during which the convicted

    16 person was detained in custody pending surrender to the

    17 Tribunal or pending trial or appeal";

    18 Considering that, for the purpose of the

    19 application of Sub-rule 101(D), Zlatko Aleksovski has

    20 been detained since June 8th, 1996, and that he

    21 therefore to date is entitled to credit for time served

    22 for a period of two years, ten months, and twenty-nine

    23 days;

    24 Considering that, for the purpose of filing a

    25 notice of appeal pursuant to Rule 108, the time limit

  9. 1 will run from the date of the present decision;

    2 For the foregoing reasons, the Trial Chamber

    3 declares Zlatko Aleksovski:

    4 Not guilty of a grave breach (inhuman

    5 treatment) as stipulated in Count 8 of the

    6 indictment;

    7 Not guilty of a grave breach of the Geneva

    8 Conventions (wilfully causing great suffering

    9 or serious injury to body or health) as

    10 stipulated in Count 9;

    11 Guilty of a violation of the laws and customs

    12 of war (outrages upon personal dignity) as

    13 stipulated in Count 10;

    14 Consequently sentences Zlatko Aleksovski to

    15 two years and six months' imprisonment;

    16 Therefore orders the immediate release of

    17 Zlatko Aleksovski notwithstanding any appeal;

    18 States further that the notice of appeal, if

    19 any, shall be filed not more than 15 days from the date

    20 of this decision; and

    21 Further states that the Trial Chamber's

    22 written judgement giving reasons for the present

    23 decision will follow.

    24 Mr. Aleksovski, I hope you have understood

    25 well the decision of the Chamber. I shall come back to

  10. 1 it. But before doing so, I should like to address

    2 myself to all those who have contributed to the

    3 efficiency of these proceedings.

    4 I believe that we have every reason to be

    5 pleased with the quality of our debates. Each side has

    6 been able to present his point of view, to produce his

    7 evidence, to voice his preoccupations without fear or

    8 hatred.

    9 Mr. Aleksovski chose not to testify. I

    10 personally regret it, but his choice was made freely.

    11 We were also careful to make sure that Mr. Aleksovski

    12 could attend in the best possible conditions, bearing

    13 in mind the condition of his health, so that he should

    14 be fully capable of participating in all our sittings.

    15 Frequently, I almost forgot that there was an accused

    16 here, but I was always aware that there was a person,

    17 Mr. Zlatko Aleksovski.

    18 Our work, however, was possible thanks to the

    19 dedication of numerous staff members whose competencies

    20 contributed to the efficient functioning of the

    21 sittings. There were those that one sees, and I have

    22 in mind specifically the registrar; those who one

    23 hears, the interpreters and translators; those whose

    24 words one reads, the court reporters, to use the

    25 English expression; those whose presence one only

  11. 1 guesses, that is, the audio-visual technicians; those

    2 who are not visible, the officers and security guards;

    3 those who are further away but equally necessary, the

    4 personnel of the Victims and Witnesses Unit, who had

    5 the difficult task of ensuring, particularly at the

    6 psychological level, the presence of the victims who

    7 have come to testify; those whose qualities

    8 Mr. Aleksovski learned to appreciate in the detention

    9 unit; those who are present on a daily basis, the legal

    10 officers of the Chamber; and all those who have,

    11 generally speaking, allowed international justice to be

    12 exercised. Because, after all, that is what all this

    13 is about, Mr. Aleksovski, because when the Tribunal

    14 renders its decision, it is international justice that

    15 is at work.

    16 The decision that I have just read, for me,

    17 means at least two things:

    18 First of all, the acts that you were charged

    19 with are grave. They are crimes in international law.

    20 For some people, you have been acquitted; for others,

    21 you are today condemned.

    22 As you know, Mr. Aleksovski, the same reality

    23 has always at least two aspects to it. That is why

    24 justice exists. The seriousness of the crimes for

    25 which a sentence has been passed upon you exceeds,

  12. 1 without any doubt, by its very nature, the scope of

    2 your own person because, after all, it is a question of

    3 war crimes. On the other side, there are the victims,

    4 who have the right to be recognised as victims, who

    5 have the right to find in our decision a sanctioning of

    6 an attitude which morality, even more than law,

    7 condemns, and who can appease their thirst for

    8 justice.

    9 The sanction imposed upon you via the

    10 Tribunal by the International Community wishes also to

    11 send a clear signal to all those who wish to avoid the

    12 obligations that all of us have to respect if we wish

    13 peoples to belong to a civilised society and to be able

    14 to live together in co-operation and in peace.

    15 The condemnation that I have just conveyed to

    16 you is yours because these are crimes that you have

    17 been charged with personally and only those. I should

    18 like that to be very clear in your mind. We have taken

    19 into account all the elements that apply to you in the

    20 indictment but only that. We have examined all the

    21 evidence regarding the three counts against you but

    22 only those counts.

    23 The second point that today's decision

    24 appears to mean to me is that it is up to you to

    25 determine straightaway what lesson you wish to draw

  13. 1 from this. I am not talking about the possibilities of

    2 appeal that are open to you, and it is up to you alone,

    3 together with your counsel, to decide whether you wish

    4 to use them or not. I wish to speak of the reflection

    5 that all persons in your position should engage in,

    6 in my view.

    7 There is a Chinese proverb that says: If you

    8 wish to dig revenge, dig two tombs. To be judged in a

    9 fair manner, as you have been, also means to face one's

    10 responsibilities within a framework where there is no

    11 place for revenge, and if your trial has achieved at

    12 least that, that is, to eliminate the desire for

    13 vengeance among your victims, then a great deal has

    14 already been accomplished. But to accept, as you have

    15 done, to be judged under these conditions, also means

    16 to refuse to dig a second grave.

    17 If there is any revenge to be taken, it is

    18 against yourself, to look within in order to be able to

    19 resume your life with your family in peace,

    20 particularly with your children, and I hope that you

    21 will find that strength within you, to know how to take

    22 that kind of revenge.

    23 Mr. Aleksovski, the decision of the Chamber

    24 means that you are free. To be more precise, you will

    25 be free as soon as the necessary measures have been

  14. 1 taken, which means in a matter of hours. I hope that

    2 you will know how to make the best of that freedom.

    3 Mr. Aleksovski, do you have anything to say?

    4 You have the floor then.

    5 MR. ALEKSOVSKI: Your Honours, thank you for

    6 giving me this opportunity to address you, and I shall

    7 take the advantage of this opportunity to address you

    8 and also to convey my modest opinion about all this.

    9 In the first place, I should like to go back

    10 to 1993 with a few thoughts, and I appeal to all of you

    11 to look back, both those on this side of the glass

    12 partition and all the people sitting on the other side

    13 of the glass partition, including my wife.

    14 This applies to 1993. "In these

    15 terrible, turbulent times, I see signs of bad times."

    16 These are verses of Enes Kisevic, a well-known poet.

    17 To say that there was madness -- you will

    18 understand what I am saying. You are experts. You

    19 have others who will tell you what it is, but it was

    20 more than madness and I cannot explain it to you nor

    21 can anyone. I am not referring only to the Lasva

    22 Valley but throughout the territory of the former

    23 Yugoslavia. It was madness.

    24 I haven't changed from the very beginning.

    25 From my first encounter with Mr. Heintz when I was

  15. 1 brought to the detention unit, I said that I looked

    2 forward to the trial and that I trusted this Tribunal.

    3 You will say, as all jurists do, that this means that

    4 you accept two years and six months as your sentence,

    5 but I will not comment on that as that is not my

    6 expertise.

    7 As Mr. Niemann said, Zlatko Aleksovski is a

    8 university graduate and he knew how things should be

    9 done in a detention unit. If I had treated those men

    10 in the way they should be treated in prison, believe

    11 me, two years and six months would be too short a

    12 sentence.

    13 I told Mr. Niemann here, he was two metres

    14 away from me, we shook hands on a couple of occasions

    15 and exchanged a few words, I said that I was not the

    16 manager of a hospital, and even in a hospital, there

    17 are complaints. There are complaints everywhere.

    18 I wish to tell you and the whole world that

    19 never have I hated anyone, that never have I wanted to

    20 play a part in inflicting anything bad on anyone nor

    21 will I ever do that. I will use your words. I was and

    22 am and wish to remain a citizen of mankind. Thank you.

    23 JUDGE RODRIGUES: Is that all,

    24 Mr. Aleksovski? You may be seated.

    25 Thank you, Mr. Aleksovski. That brings to an

  16. 1 end this hearing.

    2 MS. HOLLIS: Thank you. May it please the

    3 Court, the Prosecutor does not request that the accused

    4 remain in detention pending the completion of any

    5 appeals. However, the Prosecutor may raise issues on

    6 appeal that could, if successful, result in a sentence

    7 that would be more severe. It is for that reason that

    8 the Prosecutor makes the following request, and that

    9 request is, before ordering that the accused be

    10 released from the custody and control of the Tribunal,

    11 that the Trial Chamber order that the Croatian

    12 government give assurances that if appellate action so

    13 requires, the accused would be returned to the custody

    14 of the Tribunal. We would respectfully request that

    15 Your Honours consider that request and that you grant

    16 it. Thank you.

    17 JUDGE RODRIGUES: Mr. Joka, do you have any

    18 comment to make?

    19 MR. JOKA: Your Honours, perhaps just a brief

    20 comment. We will respond to this request in writing,

    21 but at this point in time, bearing in mind all the

    22 elements that were mentioned by us on the 24th of

    23 November last year in our written brief for provisional

    24 relief, the guarantees provided and the fact that the

    25 Croatian government enabled Zlatko Aleksovski to be

  17. 1 here and to be put on trial, we feel that such a

    2 request would not be appropriate.

    3 JUDGE RODRIGUES: Allow me to consult with my

    4 colleagues.

    5 (Trial Chamber confers)

    6 JUDGE RODRIGUES: The Trial Chamber

    7 reiterates its decision. Mr. Aleksovski is free, and

    8 we trust that the Croatian government will cooperate

    9 and we trust that Mr. Aleksovski himself will cooperate

    10 if proved necessary.

    11 This is the Trial Chamber's decision. The

    12 hearing is adjourned.

    13 --- Whereupon the hearing adjourned at

    14 9.35 a.m.