Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6878

1 Thursday, 14 February 2008

2 [Open session]

3 [The accused entered court]

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

5 JUDGE HARHOFF: Thank you.

6 Mr. Registrar, would you be so kind as to call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to

8 everyone in the courtroom.

9 This is case number IT-04-83-T, the Prosecutor versus Rasim Delic.

10 JUDGE HARHOFF: Thank you very much.

11 And welcome to the Prosecution and to the Defence, to the accused,

12 and welcome back from Sarajevo to all of us. It was a good trip once

13 again.

14 We are here this afternoon, as you can see, without the presence

15 of the Presiding Judge Moloto, who has been called away on an urgent

16 personal matter, and so for that reason we will sit today according to

17 Rule 15 bis.

18 Otherwise, the purpose of today's hearing is, since we have come

19 to the closure of the Prosecution's case, to allow for the Defence to

20 raise a motion pursuant to Rule 98 bis, and let's just get on with it.

21 So I give the floor to the Defence.

22 MR. ROBSON: Good afternoon, Your Honours.

23 As you've mentioned, Your Honour, this is the Defence's

24 application pursuant to Rule 98 bis for a judgement of acquittal in

25 respect of one of the counts faced by General Delic, namely, count number

Page 6879

1 3 on the indictment. In that count, General Delic is charged with rape,

2 as a violation of the laws or customs of war, on the basis of Article

3 7(3), responsibility.

4 If I could first of all turn to the law, Rule 98 bis provides that

5 at the close of the Prosecutor's case, the Trial Chamber shall, by oral

6 decision, and after hearing the oral submissions of the parties, enter a

7 judgement of acquittal on any count if there is no evidence capable of

8 supporting a conviction. In the submission of the Defence, there is no

9 evidence capable of supporting a conviction in respect of count number 3.

10 Before an accused's criminal responsibility, on the basis of

11 command responsible under Article 7(3) can be considered by the Trial

12 Chamber, there is a precondition, which is that it is for the Prosecution

13 to prove that crimes were actually committed by the alleged subordinates

14 of the accused. In relation to count 3, paragraph 48 of the amended

15 indictment is the applicable paragraph, and it pleads that three women,

16 DRW-1, DRW-2 and DRW-3, were captured during the attack on Vozuca and

17 taken to Kamenica camp on the 11th of September, 1995. It then alleges

18 that during detention at Kamenica camp, they were subjected to sexual

19 assaults, including rape.

20 If I can turn to the definition of "rape," that crime has been

21 defined by this Tribunal as the sexual penetration, however slight, (a),

22 of the vagina or anus of the victim by the penis of the perpetrator or any

23 other object used by the perpetrator or, (b), of the mouth of the victim

24 by the penis of the perpetrator where such sexual penetration occurs

25 without the consent of the victim. And "consent" for this purpose must be

Page 6880

1 consent given voluntarily as a result of the victim's free will, assessed

2 in the context of the surrounding circumstances.

3 So, Your Honours, that is the law.

4 I'll now turn --

5 JUDGE HARHOFF: Just to clarify, where have you taken this

6 definition from?

7 MR. ROBSON: Your Honour, the definition that I've just outlined

8 to you comes from the Kunarac trial judgement, paragraph number 460, as

9 upheld in the Kunarac appeal judgement, paragraphs 127 and 128.

10 Turning then to the evidence on the record in relation to this

11 count, or the lack of it, as the Defence would submit, Your Honours, it's

12 now necessary to consider the evidence of some witnesses that gave their

13 evidence in protected circumstances, so if we could please move to closed

14 session.

15 JUDGE MOLOTO: We move to closed session. Excuse me, yes. We

16 will be moving into private session and not closed session.

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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8 (redacted)

9 [Open session]

10 THE REGISTRAR: Your Honours, we're back in open session.

11 JUDGE LATTANZI: [Interpretation] I just had a question. Could you

12 correct the transcript by adding the name of the Judge presiding the Trial

13 Chamber today. There's a mistake.

14 JUDGE HARHOFF: Thank you, Judge Lattanzi. Indeed, Judge Moloto

15 has many abilities, but this may be in excess of what he normally can

16 provide us with.

17 Please proceed.

18 MR. ROBSON: Thank you, Your Honour.

19 Your Honours, there are two other witnesses who gave testimony

20 that pertain to this count, and they are Edin Saric and Zakir Alispahic.

21 Dealing first of all with Mr. Saric, you'll recall that gentleman worked

22 in the counter-intelligence department of the 3rd Corps, and he testified

23 how he met the three women and interviewed them, and that was at the

24 Reception Centre, KP Dom Zenica.

25 On the 21st of November of last year, he testified at page 5953

Page 6885

1 the following: He was asked:

2 "So you actually saw these women on more than one occasion; is

3 that so?"

4 And he said: "Yes."

5 He was asked:

6 "So you've described their appearance, but earlier on during your

7 testimony you told us that there were no signs of visible injuries on

8 these women; is that correct?"

9 And he said:

10 "Yes, that's correct. I can even add that that was the first time

11 I was talking to women POWs, and my question was if they had been raped.

12 They said 'no.' Apart from looking frightened and unkempt, I think they

13 were all right otherwise. At least that's how it looked to me, and that's

14 what they said."

15 Now, at page 5954, he was asked:

16 "Now, you told us that you asked them if they had been raped. Is

17 it correct that you also asked them if they had been mistreated during

18 that time during their detention with the Mujahedin?"

19 And his reply to that was:

20 "Yes, I asked them that as well. They said that they had not been

21 mistreated, apart from being kept in some sort of basement with no contact

22 with the outside world."

23 As I say, that was at page 5954.

24 And then, finally dealing with the last relevant witness, Zakir

25 Alispahic, Your Honours will recall that he was a member of the 3rd

Page 6886

1 Military Police Battalion of the 3rd Corps. He testified about the

2 circumstances in which he collected the three women from the Mujahedin and

3 how he took them to the Reception Centre for POWs at Zenica KP Dom. During

4 cross-examination, at page 6533, it was put to him whether he remembered

5 asking if the women had been mistreated, and he replied:

6 "Yes. As we went to the main road, when I told them to remove

7 their blindfolds."

8 And then he said:

9 "And when we brought those two, three women, the practice was to

10 ask them whether they had been ill-treated, hurt, whether they had any

11 objections. I asked them and I received a negative answer. There were no

12 traces on them of any physical abuse, and they indeed confirmed that they

13 hadn't been ill-treated. At least at that moment, that's what they said

14 to me."

15 And Mr. Alispahic said that at page 6532 to 6533.

16 He was also asked about the documents that he had prepared in

17 connection with the arrival of the three women at the Reception Centre,

18 and he was asked about Exhibit 947, which is an official note on the

19 bringing in of a person, dated the 28th of September, 1995. And this

20 document related to DRW-1. And at page 6541, he confirmed that there was

21 nothing in that note to indicate that the lady had been injured or

22 mistreated in any way, and he also confirmed that DRW-1 signed that

23 document herself.

24 He was also shown Exhibit 853, which is yet another official note

25 prepared by Mr. Alispahic, and that related to the takeover of the three

Page 6887

1 women, and in that document he wrote the following:

2 "There were no signs of physical abuse when the aforementioned

3 persons were taken over, and this was also confirmed by them during a

4 short interview."

5 So Mr. Alispahic wrote that note, and during his testimony, at

6 page 6542 to 6543, he confirmed that if the women had told him that they

7 had been mistreated in any way, or if he had seen any signs of injury,

8 himself, he would have recorded that in the official note.

9 Now, Your Honours, that is the sum total of the evidence relating

10 to count 3, and if I could bring this submission to a conclusion, what we

11 would say is that there is no evidence whatsoever of any sexual assault

12 relating to DRW-1. There's no evidence from the victim, and there's

13 nothing to indicate that that person was sexually assaulted in the

14 evidence of any of the witnesses that the Trial Chamber have heard from.

15 The Defence would also submit that there is powerful evidence on

16 the record which suggests that in fact DRW-1 was not sexually assaulted,

17 and for that we of course rely upon what I have just explained from the

18 testimony of DRW-3, Mr. Saric and Mr. Alispahic.

19 So, Your Honours, in consequence, it's my submission that there is

20 no evidence capable of supporting a conviction in respect of this

21 particular count, and we would invite you to enter a judgement of

22 acquittal in respect of count number 3.

23 Unless you have any further questions, those are my submissions.

24 JUDGE HARHOFF: Thank you, Mr. Robson.

25 And can I just confirm that indeed in the indictment, the alleged

Page 6888

1 sexual assault and rape is referred to having taken place in the Kamenica

2 camp and not at any later point?

3 MR. ROBSON: That's correct, Your Honour. You will see, from

4 paragraph 48, that it specifically relates to Kamenica camp, and in

5 addition if you look above paragraph 48, you will see an underlined

6 heading which clearly shows that this allegation pertains solely to

7 Kamenica camp.

8 JUDGE HARHOFF: Right. I just wanted to clarify that, that this

9 relates exclusively to Kamenica.

10 Mr. Prosecutor.

11 MR. MUNDIS: Thank you, Mr. President.

12 Good afternoon, Your Honours, Counsel, and everyone in and around

13 the courtroom.

14 The Trial Chamber will recall that on 7 December 2007, the

15 Prosecution sought leave to withdraw count 3. That leave was denied by

16 the Trial Chamber.

17 With respect to the evidence concerning count 3, nothing has

18 changed in the intervening few weeks, and for that reason the Prosecution

19 will concede or does concede that there is insufficient evidence to

20 support conviction on count 3, and in our respectful submission justice

21 requires that that count be taken out of the indictment in the form of an

22 acquittal at this stage of the proceedings. So we would agree with the

23 Defence that there is insufficient evidence to support a conviction, and

24 we would concede that an acquittal on that count, count 3, is merited at

25 this stage of the proceedings.

Page 6889

1 JUDGE HARHOFF: Thank you, Mr. Prosecutor.

2 I'm glad to see that both parties apparently are in agreement on

3 this part.

4 We will now consider the matter, and we will certainly wait until

5 Judge Moloto is back with us again before we render the decision. And I

6 would therefore suggest that we hand down our decision on this matter on

7 Tuesday, the 26th of February, which is Tuesday next week, and we'll do so

8 at 2.15 in courtroom II when we continue our proceedings.

9 So we will not sit in this trial again before Tuesday, the 26th of

10 February, so as to allow the Defence to prepare its case, and we will

11 reconvene, as I said, in this courtroom at 2.15 on Tuesday, the 26th of

12 February.

13 Unless the parties have any other matters to raise, then I think

14 we can adjourn.

15 This hearing is adjourned, and I wish you a good preparation for

16 your case.

17 --- Whereupon the hearing adjourned at 2.42 p.m.,

18 to be reconvened on Tuesday, the 26th day of February,

19 2008, at 2.15 p.m.