1 Tuesday, 22 April 2008
2 [Appeals Judgement]
3 [The appellant Hadzihasanovic entered court]
4 [Open session]
5 --- Upon commencing at 2.17 p.m.
6 JUDGE POCAR: Good afternoon, to everybody.
7 Madam Registrar, can you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours, this is case number
9 IT-01-47-A, The Prosecutor versus Enver Hadzihasanovic and Amir Kubura.
10 JUDGE POCAR: Thank you.
11 May I turn to Mr. Hadzihasanovic and Mr. Kubura. Can you clearly
12 here and understand the translation?
13 THE ACCUSED HADZIHASANOVIC: [Interpretation] Good afternoon, Your
14 Honour. Yes, I can hear loud and clearly.
15 THE ACCUSED KUBURA: [Interpretation] Good afternoon, Your
16 Honours. I can hear the translation and I can understand it.
17 JUDGE POCAR: Now let me ask for the appearances for the parties.
18 First, the Defence for Mr. Hadzihasanovic.
19 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honours.
20 For General Enver Hadzihasanovic, Edina Residovic, main counsel, Stephane
21 Bourgon, co-counsel, and our case managers and legal assistants.
22 JUDGE POCAR: Thank you.
23 Now for Mr. Kubura.
24 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.
25 I am Fahrudin Ibrisimovic. I am counsel with Amir Kubura, and with here
1 me today are Rodney Dixon, co-counsel, and our legal assistant.
2 JUDGE POCAR: And for the Prosecution.
3 MR. KREMER: Peter Kremer, appearing for the Prosecution, with
4 Xavier Tracol and Ms. Barbara Goy; and Sebastiaan van Hooydonk our case
5 manager is assisting us. Thank you.
6 JUDGE POCAR: I thank you.
7 As the registrar announced, the case on our agenda today is The
8 Prosecutor versus Enver Hadzihasanovic and Amir Kubura. In accordance
9 with the Scheduling Order on 11 April 2008, today the Appeals Chamber
10 will deliver its judgement.
11 This case concerns certain events that unfolded in Central Bosnia
12 in 1993, particularly in the municipalities of Bugojno, Vares, and
13 Zenica. During the period relevant for the indictment, the appellant
14 Hadzihasanovic was commander of the 3rd Corps of the army of Bosnia
16 7th Muslim Mountain
17 On 15 March 2006
18 pursuant to Articles 3 and 7(3) of the Statute for having failed in his
19 duty as a superior to prevent or punish the murder by his subordinates of
20 Mladen Havranek at the Slavonija furniture salon in the Bugojno
21 municipality, the murder by his subordinates of Dragan Popovic at the
22 Orasac camp, and the cruel treatment by his subordinates at the Zenica
23 music school at the Orasac camp and at various detention centres in
25 The Trial Chamber acquitted Hadzihasanovic on all other counts of
1 the indictment. Kubura was found guilty, pursuant to Articles 3 and 7(3)
2 of the Statute, for having failed in his duty as a superior to prevent or
3 punish the plunder by his subordinates in the Ovnak area and in Vares.
4 The Trial Chamber acquitted Kubura on all other counts of the indictment.
5 Hadzihasanovic was sentenced to five years of imprisonment;
6 Kubura was sentenced to two years and six months imprisonment.
7 Hadzihasanovic appealed on 18 April 2006
8 convictions against him. Kubura appealed on 13 April 2006, challenging
9 both his conviction and the sentence imposed on Hadzihasanovic, but not
10 the acquittal.
11 The Prosecution appealed the sentence imposed on Hadzihasanovic
12 but not the acquittals. The Prosecution appealed Kubura's acquittal
13 under Count 5 on the indictment, regarding wanton destruction in the town
14 of Vares in November 1993 and the sentence imposed on him. The Appeals
15 Chamber heard oral submissions of the parties regarding these appeals on
16 4 and 5 December 2007
17 Following the practice of this Tribunal, I will not read out the
18 text of the judgement except for the disposition. Instead, I will
19 summarize the issues on appeal and the findings of the Appeals Chamber.
20 I emphasise that this summary is not part of the written judgement, which
21 is the only authoritative account of the Appeals Chamber's rulings and
22 reasons. Copies of the written judgement will be made available to the
23 parties at the conclusion of the hearing.
24 I now will address the party's grounds of appeal. First, I will
25 address Hadzihasanovic's arguments regarding the alleged infringement on
1 his right to a fair trial. Second, I will address the party's arguments
2 concerning Hadzihasanovic's individual criminal responsibility as a
3 superior. Third, I will address the parties' arguments concerning
4 Kubura's individual criminal responsibility as a superior. And, finally,
5 I will turn to the parties' arguments regarding the sentences imposed on
6 Hadzihasanovic and Kubura.
7 In his first, second, and as a part of his third and sixth ground
8 of appeal, Hadzihasanovic submits that the Trial Chamber committed
9 numerous errors infringing upon his right to a fair trial under Article
10 21 of the Statute. For the reasons that are set out in the judgement,
11 the Appeals Chamber finds that Hadzihasanovic failed to demonstrate that
12 the Trial Chamber erred in law or, in fact, that his right to a fair
13 trial was infringed.
14 Let me now turn to Hadzihasanovic's individual criminal
15 responsibility as a superior. Under his third ground of appeal,
16 Hadzihasanovic argues that the Trial Chamber erred by finding that he
17 failed to take the adequate measures required to punish those responsible
18 for the murder of Mladen Havranek, and the cruel treatment of six
19 prisoners at the Slavonija furniture salon on 5 August 1993, as well as
20 to prevent similar crimes in the other detention facilities in Bugojno.
21 The Appeals Chamber concurs with the Trial Chamber's finding that
22 the evidence before it provided a sufficient basis to conclude that the
23 perpetrators of the 5 August 1993 Slavonija furniture salon crimes were
24 held responsible for breaches of military discipline, by the military
25 disciplinary organ in Bugojno, and that no criminal report was filed with
1 the district military prosecutor's office regarding the matter.
2 The Appeals Chamber agrees with the Trial Chamber that, given the
3 gravity of the offences for which the perpetrators were being punished,
4 murder and cruel treatment, Hadzihasanovic could not consider as
5 acceptable punishment the disciplinary sanction of a period of detention
6 not exceeding 60 days.
7 The Appeals Chamber, however, finds that no reasonable trier of
8 fact could have found beyond a reasonable doubt that the 3rd Corps failed
9 to initiate an investigation or criminal proceedings against the
10 perpetrators of the murder and cruel treatment by filing a report with
11 the Bugojno municipal public prosecutor.
12 The report from the 20 of August 1993 from the chief of the
13 civilian police in Bugojno regarding alleged war crimes committed against
14 Croats, which established that the Bugojno municipal public prosecutor
15 met with European Community observers to discuss alleged war crimes
16 committed against Croats, including the murder of Mladen Havranek, indeed
17 raises a reasonable doubt as to whether the 307th Brigade subordinated to
18 the 3rd Corps headed by Hadzihasanovic filed a criminal report regarding
19 the 5 August 1993
20 municipal public prosecutor.
21 The Appeals Chamber recalls that a superior need not dispense
22 punishment personally and may discharge his duty by reporting the matter
23 to the competent authority. In the present case, the Appeals Chamber
24 finds that the reportings of the crimes to the Bugojno municipal public
25 prosecutor in conjunction with the disciplinary sanction imposed by the
1 military disciplinary organ constituted necessary and reasonable measures
2 to punish the perpetrators.
3 For the reasons set out in the judgement, the Appeals Chamber
4 reverses Hadzihasanovic's convictions for having failed to take the
5 adequate measures required to punish those responsible for the murder of
6 Mladen Havranek and the cruel treatment of six prisoners at the Slavonija
7 furniture salon on 5 August 1993
8 Under his third ground of appeal, Hadzihasanovic also contends
9 that the Trial Chamber erred in finding that he had reason to know of the
10 acts of mistreatment committed in the Bugojno detention facility as of
11 18 August 1993
12 To reach this conclusion, the Trial Chamber mainly relied on its
13 previous finding that Hadzihasanovic had failed to take adequate measures
14 to punish the perpetrators of the 5 August crimes; however, the Appeals
15 Chamber found that this latter finding was in error.
16 Considering then none of the Trial Chamber's remaining findings,
17 whether taken individually or collectively, sufficiently supports the
18 Trial Chamber's conclusion that Hadzihasanovic had reason to know of the
19 acts of cruel treatment in the Bugojno detention facility as of
20 18 August 1993
21 fact could have concluded, given the evidence, that Hadzihasanovic
22 possessed the requisite knowledge under Article 7(3) of the Statute,
23 which would trigger his responsibility to prevent or punish such acts.
24 For the reasons set out in the judgement, the Appeals Chamber
25 reverses Hadzihasanovic's convictions for having failed to take adequate
1 measures to prevent or punish the acts of mistreatment in the Bugojno
2 detention facilities as of 18 August 1993
3 Under his fourth ground of appeal concerning the cruel treatment
4 at the Zenica music school from May to September 1993, Hadzihasanovic
5 argues that the Trial Chamber erred by finding that he failed to take the
6 reasonable measures necessary to punish the perpetrators and prevent such
8 First, Hadzihasanovic argues that the Trial Chamber failed to
9 properly consider the evidence provided by Witness Dzemal Merdan, his
10 deputy commander, and Witness HF, a senior officer of the 3rd Corps
11 command, that the measures were taken by the 3rd Corps to investigate
12 allegations of mistreatment at the Zenica music school. The Appeals
13 Chamber notes that the Trial Chamber did not ignore the testimony of
14 these two witnesses, but, after reviewing the totality of the evidence
15 before it, decided to accord greater weight to other evidence.
16 The Trial Chamber found, based on the many accounts by former
17 prisoners at the music school, that the Zenica music school's basement
18 consistently housed between ten and 30 detainees from 18 April until
19 20 August 1993
20 received alarming information from other sources, which established the
21 need for further inquiry based on allegations of mistreatment. Thus, the
22 Trial Chamber's finding that an investigation of the allegations of cruel
23 treatment would have enabled Hadzihasanovic to identify the persons
24 responsible for the violence does not turn solely on the truthfulness of
25 witnesses Dzemal Merdan and HF.
1 Second, Hadzihasanovic argues that the Trial Chamber failed to
2 properly consider evidence that the arrest, detention, and alleged
3 mistreatment of the detainees at the music school was concealed by some
4 members of the 7th Brigade. The Appeals Chamber finds that the Trial
5 Chamber noted that there was an intention on the part of the soldiers
6 present at the school to conceal the mistreatment inflicted on the
7 detainees, but concluded that this had no bearing on Hadzihasanovic's
8 criminal responsibility. Indeed, the Trial Chamber found that
9 Hadzihasanovic had received information that his subordinates were
10 committing mistreatment at the Zenica music school from sources outside
11 the 7th Brigade, such that any attempted concealment by members of the
12 7th Brigade was rendered secondary.
13 Third, Hadzihasanovic submits that the measures he took with
14 respect to the Zenica music school were necessary and reasonable. The
15 Trial Chamber considered Hadzihasanovic's arguments that he had taken
16 preventative measures to ensure that civilians and prisoners of war were
17 treated in accordance with international humanitarian law, and that he
18 took steps to investigate allegations of mistreatment. The Trial
19 Chamber, nevertheless, concluded that Hadzihasanovic did not make genuine
20 efforts to initiate an appropriate investigation into the allegations of
21 cruel treatment; whereas, such an investigation would have enabled him to
22 discover the identity of the persons responsible for the violence.
23 For the reasons set out in the judgement, the Appeals Chamber
24 finds that Hadzihasanovic failed to demonstrate that no reasonable trier
25 of fact could have concluded that, given the evidence, he failed to take
1 necessary and reasonable measures to punish the perpetrators of the cruel
2 treatment at the Zenica music school and prevent further mistreatment.
3 I now turn to Hadzihasanovic's arguments under his fifth ground
4 of appeal, concerning the murder and cruel treatment in Orasac in
5 October 1993.
6 Hadzihasanovic submits that the Trial Chamber erred by finding
7 that he failed to take necessary and reasonable measures to prevent the
8 murder of Dragan Popovic and the cruel treatment committed by
9 El Mujahedin Detachment in the Orasac camp against five civilians
10 abducted on 19 October 1993
11 He argues that the Trial Chamber erred in finding that he had
12 de jure authority over the members of the El Mujahedin Detachment and in
13 finding that he exercised effective control over the El Mujahedin
14 Detachment. Since de jure authority is only one factor that helps to
15 establish effective control, and because the question is resolvable on
16 the basis of effective control alone, the Appeals Chamber declines to
17 address whether Hadzihasanovic had de jure authority over the
18 El Mujahedin Detachment.
19 The Trial Chamber found that Hadzihasanovic exercised effective
20 control over the detachment on the basis that the evidence before it
21 showed that three types of indicia of effective control were satisfied;
22 namely, the power to give orders to the detachment and have them
23 executed, the conduct of combat operations involving the detachment, and
24 the absence of any other authority over the detachment.
25 First, the Appeals Chamber recognises that the power to give
1 orders and have them executed can serve as a an indicia of effective
2 control. In the present case, the Trial Chamber took concern orders of
3 resubordination into account, though to varying degrees, as indicia of
4 effective control. However, for the reasons set out in the judgement,
5 the Appeals Chamber finds that none of the resubordination orders, either
6 individually or collectively, is sufficient to establish the existence of
7 effective control.
8 Second, the Appeals Chamber finds that while the findings relied
9 upon by the Trial Chamber confirm that the El Mujahedin Detachment took
10 part in several combat operations in September and October 1993, and that
11 this occurred within the framework established by the Operational Group
12 Bosanska Krajina and the 3rd Corps, they do not necessarily provide
13 sufficient support for the conclusion that Hadzihasanovic had effective
14 control over the El Mujahedin Detachment in the sense of having the
15 material ability to prevent or punish its members should they commit
17 Notably, several findings of the Trial Chamber demonstrate that
18 the El Mujahedin Detachment maintained a significant degree of
19 independent from the units it fought alongside on various issues, which
20 belies the Trial Chamber's conclusion that the El Mujahedin Detachment
21 was under the effective control of the 3rd Corps. The Trial Chamber
22 found, for example, that the detachment members were anxious to maintain
23 their independence and reserved the right to decide whether they would
24 take part in combat operations. Thus, while these Trial Chamber's
25 findings indicate that the 3rd Corps cooperated with the El Mujahedin
1 Detachment, they are insufficient to establish the existence of a
2 relationship of effective control between the 3rd Corps and the
3 El Mujahedin Detachment.
4 Third, with regard to the absence of any other authority over the
5 El Mujahedin Detachment, the Appeals Chamber finds that some of the Trial
6 Chamber's findings suggest that the El Mujahedin Detachment was more
7 under the influence of Muslim clerics than under that of the 3rd Corps.
8 However, the Appeals Chamber disputes the relevance of the criterion
9 identified by the Trial Chamber as an indicator of the existence of
10 effective control. Hadzihasanovic's effective control cannot be
11 established by process of elimination. The absence of any other
12 authority over the detachment in no way implies that Hadzihasanovic
13 exercised effective control in this case.
14 Last, I turn to Hadzihasanovic's argument that he could not have
15 effective control over the detachment if the only way for the 3rd Corps
16 to obtain the release of the civilians abducted on 19 October 1993 was to
17 use force.
18 The Appeals Chamber finds that the military operation that the
19 Trial Chamber expected the 3rd Corps to undertake to rescue these
20 hostages would be comparable to that necessary to obtain the release of
21 hostages from an enemy force rather than a force under its effective
22 control. Regardless of whether the use of force was materially feasible
23 or advisable to save the lives of the hostages, the facts of the case
24 reveal a situation in which the relationship between the El Mujahedin
25 Detachment and the 3rd Corps was not one of subordination. Instead, it
1 was close to overt hostility, since the only way to control the
2 detachment was to attack them, as if they were a distinct enemy force.
3 This scenario is at odds with the premise that the Trial Chamber that the
4 El Mujahedin Detachment was subordinated to the 3rd Corps. This
5 conclusion further confirms that Hadzihasanovic did not have effective
6 control over the El Mujahedin Detachment.
7 For the reasons set out in the judgement, the Appeals Chamber
8 concludes that no reasonable trier of fact could have concluded that it
9 was established beyond a reasonable doubt that Hadzihasanovic had
10 effective control over the El Mujahedin Detachment between 13 August and
11 1 November 1993
12 Hadzihasanovic's conviction for having failed to present the crimes of
13 cruel treatment committed between 19 and 31 October 1993, and the murder
14 of Dragan Popovic.
15 I now turn to Kubura's individual criminal responsibility as a
17 Under his first ground of appeal, Kubura submits that the Trial
18 Chamber erred in convicting him of failing to take necessary and
19 reasonable measures to punish the acts of plunder committed in June 1993
20 in the Ovnak area. He argues that the Trial Chamber erred in finding
21 that the 7th Brigade was involved in the plunder committed in the Ovnak
22 area and/or that he knew of his subordinates' involvements in these acts.
23 First, the Appeals Chamber notes that the Trial Chamber examined
24 Kubura's claim that members of the 7th Brigade could not have been
25 responsible for the plunder because they had already left the Ovnak area
1 on 8 June 1993
2 otherwise. While, as Kubura argues, the Trial Chamber, indeed, found
3 that members of the 7th Brigade did not enter the villages where the
4 plunder was committed, and left the sector on 9 June 1993, it also found
5 that, following the end of combat operations, members of the 7th Brigade
6 military police units entered and systemically plundered the Ovnak area
7 as of June 1993 prior to their departure.
8 The Appeals Chamber finds that Kubura failed to establish that,
9 given the evidence, no reasonable trier of fact could have concluded that
10 members of the 7th Brigade committed plunder in the Ovnak area in
11 June 1993.
12 Second, with regard to Kubura's arguments that the Trial Chamber
13 only relied on one witness to conclude that he had knowledge of the
14 plunder committed in the Ovnak area on 9 June 1993, the Appeals Chamber
15 finds that he ignores the additional evidence considered by the Trial
16 Chamber and its resulting findings. Moreover, the Trial Chamber noted
17 that Kubura received orders alerting him to plunder in the Ovnak area
18 generally, which Kubura acknowledged and responded to.
19 In addition, the Trial Chamber found that Kubura issued a report
20 on 20 June 1993
21 standardised procedure for war booty had been implemented by the
22 7th Brigade. The Appeals Chamber finds that Kubura failed to demonstrate
23 that, given the evidence, no reasonable trier of fact, could have
24 concluded that he had knowledge of plunder by his subordinates in the
25 Ovnak area in June 1993.
1 In light of the forgoing, the Appeals Chamber accordingly upholds
2 Kubura's conviction for failing to take the necessary and reasonable
3 measures to punish the plunder committed by his subordinates in June 1993
4 in the Ovnak area.
5 Under his second ground of appeal, Kubura submits that the Trial
6 Chamber erred in convicting him of failing to take necessary and
7 reasonable measures to prevent or punish the plunder which took place in
8 Vares in November 1993. He argues that the Trial Chamber erred in
9 finding that the 7th Brigade was involved in the commission of acts of
10 plunder there Vares in November 1993 and/or that he knew or had reason to
11 know of these acts.
12 First, with regard to the 7th Brigade's involvement, the Appeals
13 Chamber finds that the documents relied upon by the Trial Chamber in
14 reaching the finding that Kubura's subordinates engaged in plunder in
15 Vares specifically referred to the 7th Brigade's involvement in these
16 acts. The Appeals Chamber finds that Kubura failed to demonstrate that,
17 given the evidence, no reasonable trier of fact could have concluded that
18 members of the 7th Brigade commit the plunder in Vares in November 1993.
19 Second, with regard to Kubura's knowledge of the acts of plunder
20 in Vares triggering his duty to prevent them, the Appeals Chamber notes
21 that the Trial Chamber focused its reasoning on Kubura's failure to
22 punish his subordinates' plunder in the Ovnak area some five months
23 earlier. While portions of the trial judgement demonstrate that the
24 Trial Chamber considered factors other than Kubura's past failure to
25 punish his subordinates in determining whether he had reasonable to know
1 of their acts of plunder in Vares on 4 November 1993, the Trial Chamber
2 judgement suffers at the very least from a lack of clarity as to whether,
3 and if so, how the Trial Chamber took into account the circumstances of
4 the case in determining that Kubura had reason to know sufficient to
5 trigger a duty to prevent his subordinates' plunder in Vares.
6 The Appeals Chamber deems it of significant import that the Trial
7 Chamber found that, irrespective of the measures taken by Kubura to stop
8 the act of plunder in Vares once he had knowledge of them, Kubura
9 remained responsible for failing to prevent these acts in the first place
10 based exclusively on his past failure to punish similar acts in the Ovnak
11 area. Such a conclusion implies that the Trial Chamber considered
12 Kubura's knowledge of and past failure to punish his subordinates' acts
13 of plunder in the Ovnak area as automatically entailing that he had
14 reason to know of their future acts of plunder in Vares.
15 The Appeals Chamber finds that this constitutes an error of law.
16 Having applied the correct legal standard to the evidence
17 contained in the trial record, the Appeals Chamber recognises that
18 Kubura's knowledge of and failure to punish his subordinates' past acts
19 of plunder was likely to be understood by his subordinates at least as
20 acceptance, if not encouragements of such conduct, such that it increased
21 the risk that further acts of plunder such as those in Vares would be
22 committed again. The Appeals Chamber notes, however, that the acts of
23 plunder committed by Kubura's subordinates in the Ovnak area on
24 9 June 1993
25 months and some 40 kilometres.
1 While the plunder was widespread on each of these two occasions,
2 Kubura's subordinates were not found to have engaged in plunder on a
3 frequent basis while under his command. The Appeals Chamber recalls that
4 the Trial Chamber did not find that Kubura had any other knowledge
5 regarding his subordinates' acts of plunder in Vares prior to their
6 commission, other than the knowledge it inferred from his past failure to
8 However, with respect to Kubura's knowledge of his subordinates'
9 acts of plunder whilst they were ongoing, the Appeals Chamber recalls
10 that Kubura received orders on 4 November 1993 alerting him to the
11 ongoing acts of plunder in Vares and holding him responsible for stopping
12 them. Indeed, the Trial Chamber found that Kubura received orders from
13 the 3rd Corps command directing him to use military police to prevent
14 property from being plundered in Vares, as well as instructions from the
15 Operational Group East to cease all unauthorized acts, stop anything from
16 being removed, and withdraw his troops from the town.
17 While Kubura's knowledge of his subordinates' past plunder in
18 Ovnak and his failure to punish them did not in itself amount to actual
19 knowledge of the acts of plunder in Vares, the Appeals Chamber concurs
20 with the Trial Chamber that the orders he received on 4 November 1993
21 constituted, at the very least, sufficiently alarming information
22 justifying further inquiry.
23 The Appeals Chamber accordingly finds that Kubura possessed
24 knowledge sufficient to trigger a duty to prevent his subordinates from
25 committing further plunder in Vares as of his receipt of the orders
1 alerting him to the ongoing plunder.
2 For the reasons set out in the judgement, the Appeals Chamber
3 also finds that Kubura's knowledge of his subordinates' acts of plunder
4 in Vares was also sufficient to trigger his duty to punish them.
5 With regard to the measures taken by Kubura to prevent his
6 subordinates from committing further acts of plunder in Vares, the
7 Appeals Chamber recalls that, following the order of 4 November 1993 from
8 the Operational Group Istok command, Kubura withdrew his troops from
9 Vares the very same day, and then forbade the members of the 7th Brigade
10 from entering or staying in Vares on 5 November 1993.
11 For the reasons set out in the judgement, the Appeals Chamber
12 finds that Kubura took necessary and reasonable measures, given the
13 circumstances of the case, to prevent the plunder by putting a stop to
14 the plunder once it had started so it would not be repeated. The Appeals
15 Chamber, however, upholds the Trial Chamber's finding that Kubura failed
16 to take necessary and reasonable measures to punish his subordinates'
17 acts of plunder in Vares on 5 November 1993
18 superior under Article 7(3) of the Statute for the plunder in Vares is
19 accordingly maintained.
20 I now turn to the Prosecution's second ground of appeal that
21 Kubura should have been convicted under Article 7(3) of the Statute for
22 the wanton destruction committed by his subordinates in Vares on
23 4 November 1993
24 The Trial Chamber found that Kubura's subordinates committed
25 wanton destruction in Vares on 4 November, but that it was not proven
1 beyond a reasonable doubt that he knew or had reason to know of this
3 First, as to whether Kubura received the information concerning
4 the destruction of property in Vares, the Trial Chamber found, as
5 correctly remarked by the Prosecution, that the Operational Group Istok
6 issued a combat report to the 3rd Corps commander on 4 November noting
7 the chaotic situation in Vares. In this report, the Operational Group
8 Istok requested that the 3rd Corps command send police military units to
9 the town of Vares
10 report stating that it had issued orders that brigades use military force
11 to prevent chaos and the destruction of property in Vares.
12 The Trial Chamber found that the 7th Brigade neither received the
13 4 November 1993
14 command, nor the 3rd Corps command report in response. Yet, from the
15 content of the 3rd Corps command report, it inferred that the 7th Brigade
16 must have received orders to use military police forces to prevent chaos
17 and the destruction of property in Vares, given that the 7th Brigade was
18 subordinated to the 3rd Corps command and present in Vares. The
19 3rd Corps command combat report, however, failed to make explicit the
20 identity of the perpetrators of the acts of wanton destruction in Vares.
21 The Appeals Chamber notes that other brigades were also present in Vares
22 on 4 November 1993
23 The Trial Chamber also found that the Operational Group Istok
24 issued a separate order on 4 November specifically directed to the 7th
25 Brigade commander which explicitly refers to the activities of plunder
1 and the need to prevent them but does not mention acts of destruction.
2 The Appeals Chamber concurs with the Trial Chamber that given the
3 evidence taken as a whole, the inference that the 7th Brigade must have
4 received order from the 3rd Corps command on 4 November does not
5 establish, by itself, Kubura's knowledge of his subordinates' acts of
6 wanton destruction.
7 Second, the Appeals Chamber considers that Kubura's knowledge of
8 the acts of wanton destruction cannot automatically be inferred from his
9 awareness of the plunder in Vares on 4 November 1993. Indeed, the
10 Trial Chamber's finding regarding Kubura's knowledge of the plunder in
11 Vares on 4 November rests on a much broader evidentiary basis.
12 Furthermore, the Trial Chamber relied on Kubura's knowledge of and
13 failure to punish his subordinates' past acts of plunder. The Trial
14 Chamber made no such findings with respect to any past acts of wanton
15 destruction by Kubura's subordinates. Thus, while there was a sufficient
16 evidentiary basis for the Trial Chamber to conclude that Kubura had
17 knowledge of the acts of plunder in Vares, it was reasonable for it to
18 conclude that his knowledge, as regards the acts of wanton destruction,
19 was not established beyond reasonable doubt.
20 In light of the foregoing, the Appeals Chamber finds that the
21 Prosecution failed to establish that no reasonable trier of fact could
22 have concluded, on the basis of all the admitted evidence, that Kubura's
23 knowledge of wanton destruction in Vares on 4 November 1993 was not
24 established beyond a reasonable doubt.
25 Kubura's acquittal is confirmed.
1 Finally, I turn to the appeals concerning the sentences rendered.
2 Hadzihasanovic did not specifically appeal his sentence but
3 alleged that the Trial Chamber erred in that the disposition of the trial
4 judgement does not adequately reflect some of the findings made by the
5 Trial Chamber in the body of the trial judgement. Kubura appealed his
6 sentence as manifestly excessive, and the Prosecution appealed both
7 Hadzihasanovic's and Kubura's sentences as manifestly inadequate.
8 The Appeals Chamber allows Hadzihasanovic's arguments and
9 corrects the disposition of the trial judgement concerning the temporal
10 scope of the cruel treatment at the Zenica music school to render it
11 consistent with the Trial Chamber's findings. As regards the impact of
12 this shorter period of responsibility on Hadzihasanovic's sentence, the
13 Appeals Chamber first recalls that in the Trial Chamber, in its
14 sentencing determination, correctly determined that the cruel treatment
15 at the Zenica music school took place over approximately seven months and
16 not nine months, as erroneously indicated in the disposition of the Trial
18 The Appeals Chamber further notes that the Trial Chamber's
19 finding regarding the large number of victims involved in the detention
20 facility in Zenica, which was considered an aggravating circumstance,
21 remains valid for the relevant period. Thus, these factors remain
22 unaffected by the above correction to the disposition of the trial
23 judgement, and there is no impact on the sentence.
24 For the reasons set out in the judgement, the Appeals Chamber
25 dismisses the Prosecution's and Kubura's arguments. The Appeals Chamber
1 finds that the Trial Chamber properly considered the gravity of the
2 crimes, the relevant aggravating and mitigating factors, and the
3 sentencing practices in the former Yugoslavia
4 I will now read out the full operative paragraphs of the Appeals
5 Chamber's judgement; that is, the disposition.
6 Mr. Hadzihasanovic, and, Mr. Kubura, will you please stand.
7 Here is disposition.
8 For the foregoing reasons, the Appeals Chamber, pursuant to
9 Article 25 of the Statute, and Rules 117, 118 of the Rules, noting,
10 irrespective of its written submissions of the parties and the arguments
11 they presented at the hearings of 4 and 5 December 2007;
12 Sitting in open session, unanimously;
13 Allows Hadzihasanovic's appeal, in part, with respect to
14 Ground 3;
15 Reverses his conviction for failing to take the necessary and
16 reasonable measures to punish those responsible for the murder of Mladen
17 Havranek, Count 3 of the indictment, and the cruel treatment of six
18 prisoners at the Slavonija furniture salon on 5 August 1993, Count 4 on
19 the indictment;
20 As well as his conviction for failing to take the necessary and
21 reasonable measures to prevent or punish the cruel treatment at the
22 Gimnazija school building, the Slavonija furniture salon, the Iskra FC
23 stadium, and the Vojin Paleksic elementary school in Bugojno as of
24 18 August 1993
25 Allows Hadzihasanovic's appeal, in part, with respect to
1 Ground 4, concerning certain errors in the disposition of the trial
2 judgement with regard to his conviction entered under Count 4 of the
3 indictment for his failure to prevent or punish the cruel treatment at
4 the Zenica music school;
5 Sets aside the related portion of the disposition of the trial
6 judgement and replaces it with the following: Counts 4, guilty of
7 failure to prevent or punish cruel treatment at the Zenica music school
8 from 8 May 1993 to 20 August 1993, or 20 September 1993, in addition to
9 failure to punish cruel treatment at the Zenica music school from
10 26 January 1993
11 Allows Hadzihasanovic's appeal, in part, with respect to
12 Ground 5; reverses his conviction for failing to take the necessary and
13 reasonable measures to prevent the murder of Dragan Popovic on
14 21 October 1993
15 failing to take the necessary and reasonable measures to prevent cruel
16 treatment at the Orasac camp from 15 October 1993 to 31 October 1993.
17 Count 4 of the indictment;
18 Reduces the sentence of five years of imprisonment imposed on
19 Hadzihasanovic by the Trial Chamber to a sentence of three years and six
20 months of imprisonment, subject to credit being given under Rule 101 (C)
21 of the Rules for the period Hadzihasanovic already spent in detention;
22 And dismisses Hadzihasanovic's appeal in all other respects;
23 Allows Kubura's appeal, in part, with respect to Ground 2;
24 reverses his conviction for failing to take the necessary and reasonable
25 measures to prevent, though not to push, plunder in Vares on
1 4 November 1993
2 Reduces the sentence of 30 months of imprisonment imposed on
3 Kubura by the Trial Chamber to a sentence of two years of imprisonment;
4 And dismisses Kubura's appeal in all other respects;
5 Dismisses the Prosecution's appeal in its entirety;
6 Orders that this judgement shall be enforced immediately pursuant
7 to Rule 118 of the Rules.
8 Mr. Hadzihasanovic, and, Mr. Kubura, you may be seated.
9 I now request that the registrar to please deliver copies of the
10 judgement to the parties in this case.
11 Thank you, Madam Registrar.
12 The Appeals Chamber will now rise.
13 --- Whereupon the hearing adjourned at 3.06 p.m.