Tribunal Criminal Tribunal for the Former Yugoslavia

Page 37

1 Friday, 30 March 2001

2 [Motion Hearing]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 10.01 a.m.

6 JUDGE WALD: Good morning. Madam Registrar, will you call the

7 case, please?

8 THE REGISTRAR: Prosecutor [no English interpretation].

9 JUDGE WALD: I welcome the parties and the appellants here today,

10 counsel, excuse me, and all the technical people who will assist us in

11 this hearing. Excuse me one moment, I have a problem with my microphone

12 here. I can't seem to get the right channel here. I think we are all

13 right now. I would first ask for the appearances of the counsel for their

14 respective clients. Would counsel please rise and identify themselves and

15 their clients?

16 MR. YAPA: May it please Your Honours, I am Upawansa Yapa. I

17 appear for the Prosecution with Mr. Anthony Carmona, Mr. Fabricio

18 Guariglia, and Ms. Norul Rashid.

19 JUDGE WALD: Thank you. For the appellants?

20 MR. RADOVIC: [Interpretation] [no English interpretation].

21 MR. SUSAK: [Interpretation] [no English interpretation].

22 MS. SLOKOVIC-GLUMAC: [Interpretation] Good morning, Your Honours,

23 I am Jadranka Slokovic-Glumac and I am counsel for Mirjan Kupreskic.

24 MR. ABELL: I am Anthony Abell good morning.

25 MR. LIVINGSTON: John Livingston, good morning, Your Honours.

Page 38

1 JUDGE WALD: Thank you. I want to assure myself that all of the

2 appellants are able to understand the proceedings in a language that they

3 can fully comprehend. Is that right?

4 MR. PAVKOVIC: [Interpretation] Good morning, Your Honours, I am

5 Petar Pavkovic. I am an attorney from Zagreb. I am a member of the

6 Croatian bar, and I am counsel of Vladimir Santic.

7 JUDGE WALD: Thank you. I take it from the nodding that counsel

8 can understand -- not counsel, that the appellants can understand the

9 proceedings; is that right? Okay.

10 We have many things to accomplish today and it's going to be a

11 long day. I'm going to make some preliminary remarks to tell you the

12 schedule that I hope we will be able to adhere to so that everybody may be

13 fully heard today. The purpose of today's proceedings, as you know from

14 our order, is to hear oral argument on various aspects of Rule 115 motions

15 to admit additional evidence. These motions were filed by the appellants

16 Vlatko Kupreskic, Drago Jospovic, Zoran Kupreskic, and Mirjan Kupreskic.

17 In our decision dated 26 February, 2001, the Appeals Chamber

18 addressed all of the Rule 115 motions that had been filed as of that

19 date. That decision set out which evidence was admitted without need for

20 further argument, which evidence was rejected without need for further

21 argument. The Appeals Chamber decided that oral argument would be

22 necessary on certain categories of evidence in order for the Chamber to

23 decide whether the requirements of Rule 115 were satisfied, and that's why

24 we are here today.

25 But I do wish to emphasise at the outset that today's hearing is

Page 39

1 limited to those categories of evidence that were listed in the decision

2 of 26 February, as being the subject of oral argument, and I remind the

3 parties to restrict their submissions to those matters. In particular,

4 the Appeals Chamber notes that since 26 February, when the decision was

5 issued, the appellants -- some of the appellants have filed several new

6 115 motions. These new motions will be the subject of a separate

7 decision, and the Appeals Chamber will not hear argument in relation to

8 them today.

9 In addition, the Appeals Chamber notes that there are other

10 outstanding motions relating to material presented in other cases before

11 this Tribunal. You are informed that a decision on these motions is being

12 prepared. If, in light of that decision, it's necessary for appellants to

13 file new 115 motions in relation to that material, the appellants will be

14 advised of the time limits that will be observed with respect to that

15 material.

16 As is the general principle pursuant to governing documents of the

17 Tribunal, our hearing today will be held in open session generally. Now,

18 should it become necessary to go into closed session for reasons of

19 protection of witnesses, then I ask counsel to raise that request at the

20 appropriate stage when they would wish that to happen and we will rule on

21 that.

22 You should also know that the Appeals Chamber has already had an

23 opportunity to view the videos that are the subject of today's

24 proceedings, and we have done so; namely those relating to visibility

25 conditions. It will therefore not be necessary to replay the videos in

Page 40

1 the courtroom today.

2 A scheduling order relating to today's hearing was issued on 14

3 March and an order of clarification on 23 March. You are all familiar, I

4 know, with the contents of these orders. I simply remind you that counsel

5 for appellant Josipovic will have 45 minutes to present his oral

6 argument. For appellants Zoran and Mirjan Kupreskic, they will have a

7 combined total of 45 minutes to present their arguments. Counsel for

8 Vlatko Kupreskic will have an hour to present his arguments. The

9 Prosecution will have a total of one and a half hours to present its oral

10 argument, and each group of appellants will have 10 minutes to reply.

11 Now, it's my understanding that the Prosecution wishes to wait until all

12 counsel for the appellants have put forward their arguments before

13 responding, and I see Mr. Yapa nodding.

14 We therefore have a maximum of four and a half hours of oral

15 argument to get through today as well as questions from the bench. The

16 proposed work schedule is as follows, but you will note as I go through it

17 that there will be periods of 15 minutes reserved for questions from the

18 Judges. If the Judges' questions don't take up that time, we'll move

19 right ahead to the next appellant or the Prosecution, and hopefully that

20 might allow us to have a 15-minute break around noontime or maybe even in

21 the middle of the afternoon. But basically we'll go from 10.15, or

22 whenever I finish talking, until 11.00 for Mr. Josipovic's appeal. 11.00

23 to 11.15 for the Judges' questions to his counsel. 11.15 to 12.00 for

24 Zoran and Mirjan Kupreskic. 12.00 to 12.15 for the Judges' question.

25 If we are ahead of time at that point, we may take a 15-minute

Page 41

1 break. 12.15 to 1.15 for Vlatko Kupreskic. 1.15 to 1.30 for the Judges'

2 questions. 1.30 to 2.30 lunch break. 2.30 to 4.00, the Prosecution.

3 4.00 to 4.15, Judges' questions to the Prosecution. Then the replies,

4 4.15 to 4.25, Mr. Josipovic. 4.25 to 4.35, Zoran and Mirjan Kupreskic.

5 4.35 to 4.45, Vlatko Kupreskic. And hopefully there won't be, but if

6 there are any outstanding matters at the end of a long day.

7 Now, I think we'll move right into the oral argument for

8 Mr. Josipovic who has 45 minutes. And let me just remind you that

9 according to our decision, counsel for appellant Josipovic will present

10 oral argument as to the following matter:

11 Number one, why a video recording taken in Santici village on 16

12 April 2000 showing the lighting conditions at 5.45 a.m., or thereabouts,

13 meets the requirements of both 115(A) that it was unavailable at the time

14 of trial, and Rule 115(B), that the admission, its admission is required

15 in the interests of justice.

16 Secondly, four Croatian archive documents dated 17, 18, and 21

17 February 1994 and 21 March 1994. In our February decision we determined

18 that these documents were not available at trial. Consequently, counsel

19 is required to address the Chamber on why the interests of justice require

20 their presentation in the record on appeal.

21 Now, whoever is going to represent Mr. Josipovic for this purpose

22 has the floor. It's now 10.15 until 11.00.

23 MR. SUSAK: [Interpretation] Thank you, Your Honour.

24 Based on the decision of the Appeals Chamber, today we are to

25 discuss two issues as supplemental evidence as far as the appellant Drago

Page 42

1 Josipovic is concerned. That is the first motion of Drago Josipovic which

2 pertains to a video recording of the visibility in the village of Santici

3 on the 16th of April 2000 in the morning hours, that is, at 5.30 a.m.

4 I believe --

5 JUDGE WALD: I'm sorry, I'm not getting anything.

6 THE INTERPRETER: Can you hear us now, Your Honour? Can you hear

7 us?

8 JUDGE WALD: Yes. Sorry.

9 MR. SUSAK: [Interpretation] So I would first like to discuss the

10 video recording of 16th of April 2000 which was recorded in the morning at

11 5.30 a.m. There are two issues to be discussed here. First of all, why

12 is it that we, the appellants, submit such a request for additional

13 evidence. We are doing this because we believe this to be a

14 generally-known fact, and the appellant could not have supposed that the

15 Trial Chamber will conclude that the Witness DD from the location where

16 she was standing would be able to identify Drago Josipovic at the distance

17 of 35 metres.

18 I believe that it is in the interest of justice and in the

19 interest of truth to have the Appeals Chamber admit this evidence as the

20 additional evidence based on the Rule 89(C). This rule says that, "The

21 Trial Chamber can admit any relevant evidence for which it believes that

22 has probative value." In other words, if this would assist the Trial

23 Chamber to determine the truth based on the Rule 107 which regulates the

24 procedure, this can also be applied before the Appeals Chamber.

25 There is a well-established practice before this Tribunal, such as

Page 43

1 in the Tadic and Jelisic cases, that such evidence be considered as

2 additional evidence. As far as the justice and truth is concerned, we

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Page 44

1 [redacted]

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4 As far as the third motion of Drago Josipovic is concerned, it

5 consists of four documents which at the request of the Defence were

6 provided by the Republic of Croatia.

7 [Appeals Chamber and legal officer confer]

8 JUDGE WALD: I've been informed that some of the material that you

9 are using in your oral argument deals with the content of statements of

10 protected witnesses. What's -- what you have said in the past that falls

11 in that category we can take care of through redaction, but I believe it

12 would be wise, if you're going to continue to refer to the content of

13 statements of witnesses who are protected, that we go into closed session

14 and that would allow you to make your argument.

15 MR. SUSAK: [Interpretation] Your Honour, I did not mention -- I

16 did not refer to any protected witnesses by their names, not a single one.

17 JUDGE WALD: I understand.

18 MR. SUSAK: [Interpretation] I used their pseudonyms.

19 JUDGE WALD: I understand that. But in terms of what I'm informed

20 was closed-session testimony, I think the mere repetition of the contents

21 -- but you can make your argument completely if we go into closed session

22 for any portion in which you're going to discuss the contents -- in which

23 you're going to discuss the contents. I understand you haven't identified

24 by name the witness. Is that satisfactory to my colleagues? Yes. And

25 the Prosecution? Okay. Why don't we go into closed session? And if you

Page 45

1 come to a point where you don't have to discuss anything that deals with

2 closed statement -- closed -- protected witnesses, then we can go back

3 into open session. But let me ask you already, since you're moving into

4 the four documents, perhaps Mr. Hocking, you can inform me, is there anything

5 that were the subject of protected witnesses or in closed session that

6 would relate to those documents?

7 [Appeals Chamber and legal officer confer]

8 JUDGE WALD: Well, counsel, I believe you yourself know, since

9 this is your client's motion, whether or not there is anything in the

10 matter that you are about to discuss which is confidential or the subject

11 of any kind of protective order. Do you know that to be true or not?

12 MR. SUSAK: [Interpretation] I will discuss a protected witness, so

13 it would be a good idea to go into closed session.

14 JUDGE WALD: All right. Please, Registrar, put us into closed

15 session. Okay. We are in closed session. Thank you. Go ahead.

16 [Private session]

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6 [Open session]

7 JUDGE WALD: Now, who is going to make the argument for Zoran and

8 Mirjan Kupreskic?

9 MR. RADOVIC: [Interpretation] Your Honours, since my colleague

10 Jadranka Slokovic-Glumac and myself are, in fact, trying to argue the same

11 facts and we believe that this is -- this has more to do with facts than

12 with law, if you would allow us, we have divided this topic into two

13 parts. I would be dealing with the joint issues and then my colleague

14 would go into more specific issues.

15 I will follow closely the decision rendered by the Appeals

16 Chamber, and I would also have to request that the -- for the larger part,

17 these proceedings be conducted in closed session, although the notion of

18 the closed session is not really quite clear to me in this respect because

19 we are quoting the testimony rendered by protected witnesses which have

20 been made public and they -- their testimony is quoted in the public

21 document, that is the judgement.

22 So if we do not mention their names and we only refer to them by

23 their pseudonyms under which they are quoted in the judgement, I don't

24 believe that there should be any obstacle for us quoting from their

25 statements in open session. So perhaps we could clarify this before I go

Page 51

1 on to argue my case so that I know at which point I am to request that we

2 go into closed session.

3 JUDGE WALD: You make a good point, and let me at this time

4 point -- I might pause myself and get some advice from Mr. Hocking or the

5 like for just what the procedure is here in terms of using closed-session

6 testimony. You also both of you may split the argument. By my reckoning,

7 you will have until 25 minutes after the hour, after 11.00 for both of you

8 to complete your argument any way you split it. Let me get the advice and

9 we'll answer your questions about closed session.

10 [Appeals Chamber and legal officer confer]

11 JUDGE WALD: All right, I think we have an answer for you,

12 Mr. Radovic. My counsellors tell me that these are the governing rules we

13 should operate under: If the testimony that you are going to refer to has

14 been the subject of public transcript, not closed-session transcript, but

15 in transcripts that were released to the public, and a pseudonym is used,

16 then you may refer to it in open session. However, if it was the subject

17 of closed-session transcripts, not public transcripts, or if there is

18 other identifying information, even though a pseudonym is used such as

19 somebody had a husband who did this or it's easy to identify who the

20 protected witness is by telling the circumstances surrounding them, then,

21 again, we should go into closed session.

22 Do those governing rules make it possible for you to go ahead?

23 And then if you find you want to used closed session, let us know.

24 MR. RADOVIC: [Interpretation] The first topic deals with

25 photographs. The first issue that we have to argue relates to the

Page 52

1 videotape depicting the oath-taking ceremony of HVO units in Vitez.

2 JUDGE WALD: Let me interrupt you, I did not believe that the

3 oath-taking ceremony was the subject of today's -- we agreed that was in

4 the prior decision that subject to your identifying or helping us to

5 identify exactly what frame was involved in the oath-taking that it was

6 admitted, that it was not to be the subject of discussion today. You

7 don't have to argue if you've just -- and I think you already have.

8 MR. RADOVIC: [Interpretation] I apologise. I didn't want to

9 argue. I just wanted to tender the photographs and the portion of the

10 videotape from which the stills were taken. The reason why I decided to

11 do so was because I had sent it from Zagreb by registered mail, and I have

12 yet to receive the confirmation from the registry that this has been

13 received and that it is entered into the court file. I would therefore be

14 very grateful if you could admit it now to avoid any --

15 JUDGE WALD: Let me ask -- I believe that we have received it. I

16 believe that all the Judges have. I don't know about the Prosecution.

17 Has the Prosecution received the identification material that our earlier

18 decision asked that they supply?

19 MR. YAPA: Yes, but to this extent, Your Honour, if I may say so,

20 it is only a fax with the still. We have not got the photograph as such.

21 JUDGE WALD: You are tendering the original now? You are

22 tendering the original photographs?

23 MR. RADOVIC: [Interpretation] Yes, the original stills and the

24 portion of the videotape with the copy of the part of the tape from which

25 the stills were taken.

Page 53

1 JUDGE WALD: I understand now and thank you.

2 MR. RADOVIC: [Interpretation] We are not going to argue, but this

3 is just the technical matter, so to speak.

4 JUDGE WALD: You can begin your argument now which will take you

5 and your co-counsel until half past 11.00. Go ahead.

6 MR. RADOVIC: [Interpretation] The second issue relates only to my

7 client Zoran Kupreskic. These are -- this relates to documents specifying

8 who was the commander of the sector which included the village of Ahmici.

9 During the trial, two witnesses, the testimony of two witnesses was the

10 base on which his command responsibility was determined. One of them as

11 Abudulah Ahmic who testified what he had heard and not what he had

12 actually seen.

13 You can see in the court file when you actually render your

14 appeals judgement, Abdulah Ahmic did not specify the actual time period in

15 which Zoran Kupreskic was alleged to have command responsibility and, in

16 the actual fact, his command responsibility involved determining who will

17 be on guard duty in the village.

18 The second witness, who was a protected witness -- I would

19 therefore like to go into private session now if it's possible.

20 JUDGE WALD: Registrar, can we go into private session, please.

21 [Private session]

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8 --- Recess taken at 11.30 a.m.

9 --- On resuming at 11.46 a.m.

10 [Open session]

11 JUDGE WALD: We are reconvened and we will now hear argument from

12 the counsel for Mr. Vlatko Kupreskic. Before you begin -- Mr. Livingston,

13 is it?

14 MR. ABELL: Mr. Abell.

15 JUDGE WALD: Mr. Abell, I'm sorry.

16 MR. ABELL: Don't worry.

17 JUDGE WALD: I apologise. As I understand it, to make sure we are

18 all on the same, as we say, wavelength, that according to our February

19 decision, you will present submissions as to why the additional evidence

20 you seek to tender on the following matters meets the requirement of 115.

21 And those two matters fall into alibi evidence, in which you have proposed

22 witness Marija Kupreskic and Ivica Covic and protected witnesses 1 through

23 8. And, two, evidence rebutting the Prosecution case about the

24 appellants' involvement with the police. You have three proposed

25 witnesses there and some exhibits. Now, the Appeals Chamber has already

Page 72

1 determined that the evidence falling under these two categories might meet

2 the requirements of 115(B), namely the interests of justice. You're

3 invited to present arguments as to primarily why it was unavailable at

4 trial as required in 115(A). As I understand it, you are arguing four of

5 the witnesses, AVK1, 2, 7 and 8, weren't known to you at the time. We

6 will hear argument on that. And the remainder, you will rely upon an

7 argument of gross negligence to demonstrate unavailability.

8 My final remarks remind you that in accordance with our order of

9 clarification dated 23rd of March, the submissions for today's hearing are

10 limited to whether a prima facie case of gross negligence has been made

11 out. That is, whether the evidence relied upon by appellant Vlatko

12 Kupreskic taken -- if believed, taken at its highest credibility, would

13 make out a case of gross negligence. If you succeed in that, we know that

14 a further evidentiary hearing would need to be scheduled for the Chamber

15 to assess the evidence and to hear any rebutting evidence.

16 I also ask you, if you can, to let us know in advance whether you

17 want all or portions of this to be in closed session because of what you

18 will cover.

19 MR. ABELL: Yes.

20 JUDGE WALD: With that, I'll let you take the floor.

21 MR. ABELL: Thank you, Your Honours. May I indicate straight away

22 that at the moment, I'm more than content to address Your Honours in open

23 session. There will be two stages during my submissions where I would

24 wish to go into closed session because there --

25 JUDGE WALD: You will let us know?

Page 73

1 MR. ABELL: I will indeed, when I come to it, just before I come

2 to the most relevant part. I hope that's the most convenient way forward

3 and will result in the maximum amount of my submissions being heard in the

4 normal way in open session.

5 Your Honours, I of course restrict myself to the oral argument as

6 has just been outlined. The two groups of evidence, the alibi evidence

7 and other matters relating to the events of the 15th of April of 1993,

8 category A in our Rule 115 motion, and of course category C in our Rule

9 115 motion, evidence rebutting the Prosecution's case at trial as regards

10 the appellant's involvement with the police. And I restrict myself to the

11 Rule 115(A) limb, Your Honours having already ruled that the interests of

12 justice element or limb has been made out.

13 The argument that we advance today, and which is foreshadowed in

14 the pleadings, on which of course we rely -- and may I say the oral

15 argument is meant to be complementary to those pleadings - we still rely

16 on them obviously - rather than in substitution for those pleadings, but

17 the argument is almost exclusively based upon the contention that Vlatko

18 Kupreskic's former lawyers, Dr. Krajina and Mr. Par, failed to exercise

19 due diligence at Vlatko Kupreskic's trial and that they were grossly

20 negligent in their preparation and in their presentation of the Defence on

21 count 1, that being the persecution count, of which Vlatko Kupreskic was

22 convicted.

23 The contention that I've just made is based upon the assertion

24 that there were a number of key witnesses as regards Count 1 whose

25 evidence was, on any view, highly material to the Defence case whom his

Page 74

1 former lawyers either failed to interview at all, or if they saw them or

2 interviewed those witnesses, failed to call them as witnesses.

3 And, of course, the unfortunate consequence of this, which we

4 submit is gross negligence, is that the Trial Chamber, who had to

5 determine the issue of guilt or innocence, were deprived of the

6 opportunity of hearing a number of manifestly important and, we submit,

7 credible Defence witnesses whose testimony might very well have

8 substantially changed their overall assessment of the Prosecution case

9 against him. In our submission, the failure to call witnesses like that

10 is grossly negligent.

11 I would wish to say something at this stage about the applicable

12 law. It has been conveniently set out in paragraph 16 of the decision in

13 relation to the additional evidence under Rule 115. I'm referring, of

14 course, to the Tadic decision which I know very well certainly one of Your

15 Honours is, of course, very familiar with having been on the Bench that

16 dealt with the Appeals Chamber of that matter.

17 May I say this: Of course we accept that the burden of proving

18 gross negligence rests upon the Defence, but this is what I ask

19 rhetorically, and I raise it now, because it is important as to the future

20 progress of this Rule 115 decision and, indeed, what may happen in the

21 future. I raise this question: What of the standard of proof? The

22 burden rests on the appellant, but what of the standard?

23 And I'm going to, if I may, because I submit it is a fundamentally

24 important question that will need to be resolved. I'm going, if I may, to

25 refer Your Honours to the decision in Tadic. It's headed, "The Decision

Page 75

1 on the Appellant's Motion for the Extension of the Time Limit and the

2 Admission of Additional Evidence." Yes, in our book of authorities, of

3 course, and I will just refer to three or four paragraphs within that

4 decision.

5 Paragraph 45, in our submission, gives some guidance. "In

6 summary, additional evidence is not admissible under Rule 115 in the

7 absence of a reasonable explanation as to why it was not available at

8 trial. Such an explanation must include compliance of the requirement

9 that the moving party exercised due diligence. This conclusion is

10 consistent with Statute and with the jurisprudence of many countries. It

11 is not, however, dependent on that jurisdiction."

12 Paragraph 47 deals with due diligence again. It's a necessary

13 quality of counsel who defend accused persons. "The unavailability of

14 additional evidence must not result from the lack of due diligence on the

15 part of counsel who undertook the defence of the accused." And so that

16 paragraph goes on. I needn't read every word of it.

17 Paragraph 48 is important. "Thus due diligence is both a matter

18 of criminal procedure regarding admissibility of evidence, and a matter of

19 professional conduct of lawyers. In the context of the Statute and Rules,

20 unless gross negligence is shown to exist in the conduct of either

21 Prosecution or Defence counsel, due diligence will be presumed."

22 That's the exception to the, as it were, availability limb of Rule

23 115. Paragraph 49 I rely on in this submission. "In this case, the

24 parties agree that due diligence might have been lacking in respect of

25 certain evidence which was not presented at trial because of a decision of

Page 76

1 the defence team to withhold it." The next sentence is crucial. "The

2 Appeals Chamber is not, however, satisfied that there was gross

3 professional negligence leading to a reasonable doubt as to whether a

4 miscarriage of justice resulted. Accordingly, evidence so withheld is not

5 admissible under Rule 115 of the Rules."

6 A little further on in the judgement, paragraph 65, as

7 indicated -- I'll mention paragraph 65 is cited more than once by the

8 Prosecution in their response to this appeal but, and it's important, not

9 the whole paragraph. The last sentence, and I'm not critical when I say

10 this, but the last sentence of paragraph 65 of the judgement has been left

11 out on each and every occasion that the Prosecution have cited it to Your

12 Honours in the pleadings, and it's very important.

13 Can I read the whole paragraph? "As indicated above," when -- and

14 this is under the heading the material not called by Defence counsel.

15 Paragraph 65, "As indicated above, when evidence was not called because of

16 the advice of Defence counsel in charge at the time, it cannot be right

17 for the Appeals Chamber to admit additional evidence in such a case even

18 if it were to disagree with the advice given by counsel. The unity of

19 identity between clients and counsel is indispensable to the workings of

20 the International Tribunal. If counsel acted despite the wishes of the

21 appellant, in the absence of protest at the time, and baring special --

22 THE INTERPRETER: Could the counsel read a little bit slower.

23 JUDGE WALD: I'm sorry, counsel, we have a request from the

24 translating booth to go a bit slower.

25 MR. ABELL: Very well, I'm sorry. I'm trying to squeeze a quart

Page 77

1 into a pint pot in terms of 60 minutes. Do forgive me. I apologise.

2 It's just as well I've been asked to slow down because I'm coming to the

3 crucial sentence now.

4 "An exception applies when there is some lurking doubt that

5 injustice may have been caused to the accused by gross professional

6 incompetence. Such a case has not been made out by the appellant.

7 Consequently, it cannot be said that the witnesses and material were not

8 available to the appellant despite the exercise of due diligence."

9 So in the decision of Tadic, the exception wasn't made out, as I

10 understand it. The Rule 115 simply didn't get off the starting blocks.

11 Very different case to this one. But the principle, "... an exception

12 applies where there is some lurking doubt that injustice may have been

13 caused to the accused by gross professional incompetence." Taken together

14 with paragraph 49, "The Appeals Chamber is not however satisfied that

15 there was gross professional negligence leading to a reasonable doubt as

16 to whether a miscarriage of justice resulted."

17 I rely on those paragraphs in the Tadic decision as providing

18 useful guidance to Your Honours in determining what the standard of proof

19 to be achieved by the appellants on a Rule 115 motion is. We would submit

20 that it is clearly lower than beyond reasonable doubt or even a balance of

21 probabilities or jurisprudence I'm sure the world over. Certainly in

22 England, and I'm sure in -- or I surmise in America where the burden is on

23 the Defence, it is a lower burden than when it is on the Prosecution in

24 criminal cases. But -- and so it should be, we submit, because it is

25 regarding the appellant not the Prosecution. But in our submission, it

Page 78

1 goes further than that.

2 In applying the guidance upon the standard of proof to be derived

3 from the Tadic decision, if a prima facie case of gross negligence and, of

4 course, I agree with Your Honours's definition earlier on in the

5 introduction of a prima facie case, of course. If a prima facie case of

6 gross negligence on the part of Vlatko Kupreskic's former lawyers is made

7 out on the material already submitted on paper by either side for the

8 Appeals Chamber's consideration on the Rule 115 motion, we would submit

9 that that would be sufficient to satisfy the standard of proof, the

10 lurking doubt, the reasonable doubt as to whether a miscarriage of justice

11 may have occurred. And that would render the proposed additional evidence

12 admissible, especially so as Your Honours have already decided, on the

13 papers, that it is in the interests of justice, subject to the gross

14 negligence points, to hear the evidence.

15 So if I can simply say this before I leave the law, it is our

16 submission in those circumstances that there would in fact be no need to

17 embark upon what would no doubt be a lengthy hearing of, in a subhearing

18 as it were, on the issue of gross negligence, with evidence being called

19 on either side, particularly as it would cause considerable delay and,

20 again, I don't mean it critically when I say it, but the position appears

21 to be from the recent pleadings, the recent urgent application by the

22 Prosecution, urgent motion, and our recent urgent response, that despite

23 the Rule 115 having been filed in early September - Your Honours will

24 remember that the dates of the recent pleadings - it appears that no

25 inquiries have been made by the Prosecution as to those matters until

Page 79

1 after the 26th of February of this year. Up until then, it appears that

2 the Prosecution's position, presumably a considered position, was that

3 they were content to rely upon their own written material for the entire

4 decision to be made as to the admissibility of the proposed additional

5 evidence under Rule 115. There has been a late change of heart by the

6 Prosecution.

7 We submit that there is no need to delay these proceedings, given

8 what I've already said about the lurking doubt. We say, in other words,

9 if we make out a prima facie case on the material either side has given,

10 if we raise a lurking doubt, a reasonable doubt, that by gross negligence

11 there has been -- justice has not been done, the proper evidence has not

12 been heard, we submit that that is sufficient to make the proposed

13 additional evidence admissible, and it will be for presumably the Trial

14 Chamber to in due course, if need be, to assess that evidence and see

15 where it fits into the evidence which was called on either side at trial.

16 So that's my digression and -- forgive me, "digression" is a bad

17 word because it's important, but that's what I would submit about the

18 law. It is important, and that's the way that we put that.

19 Can I now, then, turn to the argument on the material itself?

20 Having said that in our submission all we need to achieve for

21 admissibility is effectively to establish a prima facie case on the

22 papers, we submit that, in fact, what there is on the papers is a

23 formidable case of gross negligence made out against Vlatko Kupreskic's

24 former lawyers. In other words, a substantially higher than prima facie

25 case is made out on the papers. And may I particularly focus upon four

Page 80

1 items which -- about which frankly there can be little realistic argument

2 by the Prosecution? And those four items, the reason I focus on those at

3 this early stage is because each of those four items, which are documents

4 coming from former lawyers, Dr. Krajina and Mr. Par. They are what they

5 had to say, both at trial, at the appellate stage before they were sacked

6 is the word we use in England -- before they were taken off the case,

7 forgive me.

8 JUDGE WALD: I'm familiar with the term.

9 MR. ABELL: And indeed, the letter from them to me in response to

10 my letter to them, they speak volumes, and they speak for themselves, in

11 our respectful submission. Putting them I hope in chronological orders,

12 the documents are as follows: The closing address, provided at the end of

13 the trial; the draft appellant's brief, which is at annex 2 -- that is

14 obviously former lawyers' draft appellant's brief, annex 2. I give the

15 reference, I don't ask Your Honours to turn it up, it's page 109 of the

16 Rule 115 motion. Next, the draft Rule 115 motion; that's at annex 7, page

17 476. And finally the former lawyers' letter to me which is annex 1, at

18 page 100, in answer to a series of questions that I posed. And may I, as

19 it were, en passant, say this in answer to the point recently made by the

20 Prosecution that Par and Krajina have not had a chance to respond to the

21 allegation, it is our submission that my letter, which immediately

22 precedes their reply, poses a series of questions which go precisely to

23 the subject matter of the alleged gross negligence. We do, therefore have

24 -- and they answer those questions quite fully, in our respectful

25 submission, as they choose to do. And so we do, therefore, contrary to

Page 81

1 the Prosecution's contention, have some response to -- from them. And so

2 we have from those four documents, a snapshot of former lawyers' thinking

3 during the trial, at the appellant's brief stage, at their Rule 115 stage,

4 and in response to a series of questions that I put to them.

5 I mention very briefly, because they are in the papers before you

6 but they are not, as it were, strictly in the Rule 115 because it's only

7 recently happened, but you are aware from a recent motion that they were

8 written to again, Par and Krajina, at the end of December and at the end

9 of January, to ask them to respond further, and no further response has

10 been received from them.

11 Could I move on from that, please, to say this, dealing with the

12 Defence closing brief, and I say that our pleadings speak for themselves.

13 I'm really highlighting examples in the time allotted to me rather than

14 going exhaustively through it, but just to give a flavour to the

15 situation. In paragraph 121 of former lawyers' Defence closing brief,

16 they state this: "All charges against Vlatko Kupreskic for counts 12 to

17 15 have been based on this testimony." And they refer to Witness Q. "And

18 in the opinion of the Defence even for count 1" -- count 1, the

19 persecution count, of course, "because the indictment has been set down in

20 such a way," this is how they put it, "that should counts 12 to 15 be

21 proven, they are to prove count 1 automatically." That was their thinking

22 it would appear, from their own words, at the conclusion of the trial. In

23 their letter in answer to paragraph 9 of our letter to them, querying what

24 was meant by this particular passage, paragraph 12 of their reply, they

25 say, "We stress that in our opinion the Prosecutor had no solid evidence

Page 82

1 against the accused Vlatko Kupreskic with respect to count 1 and that he

2 charged him with count 1 only because he had a charge for count 2," as

3 they call it, I think they mean 12, "which enables him in case he proved

4 responsibility of Vlatko Kupreskic on count 2, to have it simultaneously

5 proven that the accused participated in the persecution," i.e.

6 qualifications from count 1. In other words, again, they are saying that

7 a conviction on count 2 automatically means a conviction on count 1.

8 The draft appellant's brief at page 30, the former lawyers state

9 that "the Defence wishes to particularly point out that due to the

10 impression" -- sorry, "the imprecision of the indictment in count 1 of the

11 indictment in the course of the whole of the trial proceedings, the

12 Defence was in the situation where it was unclear what exactly the subject

13 of the accusation was, which actual committed acts is the accused charged

14 with? Consequently the Defence was not able to respond timely with

15 rebuttal evidence in the course of the trial. We are of the opinion that

16 it is in the interests of justice that the Defence be allowed in the

17 course of the appeals procedure to present all the evidence it previously

18 considered unnecessary due to the imprecision of the indictment."

19 There we have, in our submission, a very clear, graphic

20 illustration of their admission that they failed to understand the scope

21 of count 1, and they failed to realise what evidence was relevant to it or

22 necessary for it, and they wanted to change tack, as it were, in the

23 appeal.

24 Paragraph 13 of their letter, I asked them about that, what is

25 meant by the above extract that I've just read out, and really their

Page 83

1 answer in paragraph 13 - I won't read it out - but it doesn't provide, in

2 our submission, an explanation. I hesitate to use the word "flannel," and

3 I don't mean it offensively, but it doesn't meet the question or the

4 explanation. And it is our submission that these passages that I've just

5 cited, to give Your Honours a flavour, really graphically establish that

6 the appellant's' former lawyers were unclear as to the subject matter of

7 count 1 and were therefore unable to identify what Prosecution evidence

8 was capable of proving count 1. Thus, they were in no position to find,

9 to obtain or call Defence evidence in order to try to meet and/or rebut

10 the Prosecution evidence which did in fact lay behind count 1, the

11 allegation in count 1.

12 Apparently their view at the trial and after the trial was that

13 there was no case against the appellant on count 1 separate from, as they

14 call it, count 2, and that if count 2 was dismissed, so should count 1 be,

15 which was a clear misconception. And we submit that that position goes

16 far beyond quoting from the Tadic case, a reasoned determination that

17 material in question is irrelevant to the matter in hand or a litigation

18 strategy. These were, we submit -- go far beyond. That it's not a

19 question of tactics. It's just a question of manifestly misjudgments and

20 errors as to the scope of the charge and as to the evidence that ought to

21 be sought in order to deal with the charge adequately and defend it.

22 We submit it must follow they are grossly negligent errors and

23 it's at the root of this 115 motion that that misunderstanding, grossly

24 negligent misunderstanding, affected the former lawyers' whole approach to

25 the gathering of evidence on count 1 and as to what evidence was necessary

Page 84

1 and relevant to call in their then client Vlatko Kupreskic's Defence.

2 These are, we submit, admissions that they didn't understand the

3 charge they were defending this man on. And may I put it this way, the

4 starting point -- as a general comment, the starting point for competent,

5 skillful lawyers in preparing a Defence case is to be clear what the

6 client is charged with and what the scope of that charge is. Because you

7 need to ask the following questions when you're preparing a Defence case:

8 What is the ambit of the charge? What do the Prosecution have to prove to

9 make it out? What is the evidence the Prosecution are calling in support

10 of the charge? And then how can that evidence be rebutted or explained by

11 Defence evidence?

12 All these, we submit, are fundamental questions that should be

13 asked by any competent advocate, and all of those questions hang from an

14 understanding of the scope of the charge. If one doesn't understand what

15 the charge is, one is lost, like being in the woods without a compass. No

16 idea which way to go, and that is a problem.

17 We bluntly submit that to embark upon a trial such as this without

18 a thorough grasp of what Count 1 was about is plainly grossly negligent.

19 It's serious because it resulted in substantial material as to the alibi

20 and as to evidence rebutting Vlatko Kupreskic's alleged involvement with

21 the police being called. Material which is now, of course, the proposed

22 additional evidence. It simply wasn't obtained, or if it was obtained, it

23 simply wasn't called. Grossly negligent because it results, we submit, in

24 really very serious consequences.

25 Any court striving its best to do justice needs to be provided

Page 85

1 with the full picture, expects, in an adversarial system, that the

2 Prosecution will do its duty and call all relevant, available evidence to

3 establish their contention of guilt, and the Court is entitled to rely

4 upon the Defence to use its best endeavors and due diligence to provide

5 the Court with all relevant material evidence which it gathers in order to

6 disprove the Prosecution allegation and to present the defendant's case in

7 its best possible light.

8 If the Defence simply fall down on providing that material to the

9 Court, how can the Court be blamed for giving more weight to what we

10 submit is actually rather, when one analyses it, tenuous Prosecution

11 evidence upon which this man was convicted. They simply, the Court, did

12 not have the full picture. They didn't have all the evidence they should

13 have. They didn't have the opportunity to weigh that evidence and, in

14 that sense, the Trial Chamber were deprived.

15 It may well be that had the Trial Chamber had all the material,

16 which we now seek to put it, it might have changed the Trial Chamber's

17 overall assessment of the Prosecution evidence and the weight of it, and

18 it may have changed the -- or tilted the balance in favour of the

19 appellant Vlatko Kupreskic as to whether he was or was not guilty of Count

20 1.

21 The Prosecution have argued in their pleadings that there was

22 complaint made at the trial about the imprecision of Count 1 and that may

23 well be so. But can I just say this: We all know, particularly here

24 where persecution counts are tried, that they can be wide-ranging of their

25 very nature, and the Defence should expect that. The Defence should seek

Page 86

1 clarification of the ambit of such counts from the Court as well as from

2 the Prosecution, and if they don't get it, then the Defence should cast

3 their net correspondingly wide. If they're going to err on one side, they

4 should err on the side of gathering more rather than less evidence, and

5 seeking to call as much evidence as they can in order to rebut the count

6 that they are defending their client on.

7 I mention, if I may, something that Your Honour mentioned during

8 the course of oral argument this morning. We would submit that it is the

9 duty of Defence counsel to be pessimistic rather than optimistic in

10 discharging their duties towards their client. One can't go around

11 defending assuming, "Oh, well, the Court's going to disbelieve that

12 Prosecution witness, no problem. We can save a bit of time here, we won't

13 call half the alibi evidence." The approach should be to look on -- look

14 at the worst case scenario. Look at what the case might be if the Court

15 is impressed by a particular witness who makes an identification. "Well,

16 we need as much alibi evidence as we can to try and put in the scales as

17 against what that identification witness says."

18 So there is a duty, we submit, particularly in alibi cases which,

19 of course, this was. The Defence have a duty to seek as many supporting

20 alibi witnesses as possible in order to present the Defence case in its

21 best possible light because such evidence may tip the balance in favour of

22 the defendant in the Court's judgement.

23 We submit that failure to call evidence of the defendant's absence

24 from Ahmici on the 15th of April 1993, which could have been given by

25 witnesses who were in Ahmici that day, is grossly negligent. Because it

Page 87

1 effectively left the alibi and, as Vlatko Kupreskic giving evidence in his

2 own cause, that the person who was in the car with him when he went to

3 Split, a person who was at Split as well, and his wife giving evidence in

4 the cause of her husband when there were plenty of witnesses who were more

5 independent than that who could have given a completely different strand

6 and perspective to the alibi.

7 They called part A which is: This is what Vlatko Kupreskic was

8 doing on that, he went to Split and came back later. They didn't call

9 part B which was: These are the people in Ahmici who were there and can

10 say that Vlatko Kupreskic wasn't there at the material time. And that, we

11 submit, would have been very important, particularly when, and I've made

12 the point, I will make it briefly again, particularly when Mrs. Kupreskic

13 could be said to be a -- a witness who is, perhaps, more likely to be

14 disbelieved, more vulnerable because she's the wife of a defendant. So

15 she needs as much support as she can.

16 A Court is likely to be less suspicious and cynical of a wife

17 giving evidence if she's backed up in material particulars by a number of

18 witnesses who are much more independent. She shouldn't be left virtually

19 on her own, as it were, to give evidence on behalf of her husband. Plus

20 the fact that, of course, she was having a driving test on the afternoon

21 of the 15th so there was a gap in what she said anyway. She wasn't in the

22 region of the appellant's house at all the time so she doesn't cover the

23 whole day.

24 We particularly focus on the failure to call the defendant's

25 mother, Marija Kupreskic. Of course she's also close to the defendant,

Page 88

1 but she would have been another witness. She was present all day in and

2 around the Vlatko Kupreskic's property. In relation to her, I don't refer

3 to it, but we rely on paragraphs 18 and 19 of our Rule 115 motion, and she

4 does have something to add. She does have new things to add which the

5 Court didn't hear about.

6 She was in a position to give direct evidence not only about the

7 appellant's absence, but the absence of any soldiers or military

8 preparations in and around his house on the 15th, as alleged. She was in

9 a position to deal, from her own personal knowledge, with the allegations

10 made by certain protected witnesses, I can mention them, they are public

11 record, L and M. She could deal with the issue of was the appellant

12 sitting outside his shop between 5.00 and 6.00 p.m.? Did a truck arrive

13 at dusk discharging soldiers outside the appellant's house? Were there

14 soldiers on the balcony of the appellant's house? All these questions she

15 could have answered.

16 She was spoken to briefly. She was not "proofed," is what we call

17 it in England. A statement wasn't taken from her. Ivica Civic, the

18 brother-in-law, who was on that day looking after Vlatko Kupreskic's shop

19 which is very near to where he lives. He was an obvious witness as well.

20 He was also present all day. He was even mentioned in evidence at the

21 trial by Ljubica Kupreskic as someone who was present and could help. He

22 was never interviewed to give evidence either before or during the trial.

23 I now want to turn to some witnesses which it would be better to

24 deal with, if I may, in closed session, Your Honours. Private session.

25 [Private session]

Page 89













13 Pages 89-93 redacted private session













Page 94

1 [redacted]

2 [redacted]

3 [redacted]

4 [Open session]

5 MR. ABELL: I will just say this very briefly. There can be no

6 doubt that the CSB statements which are mentioned by AVK4 are -- did

7 exist. There is a letter in the recent motion urgent response by us,

8 which establishes that they exist and indeed that they did mention two

9 other defendants.

10 I turn now to the evidence rebutting the Prosecution case as

11 regards Mr. Kupreskic's, Vlatko Kupreskic's, involvement with the police.

12 I hope I can take it very briefly because of the time. The position is

13 set out at paragraphs 61 through to 66 of the Rule 115 motion, and we

14 submit that it is a lamentable and astonishing situation which developed

15 in this.

16 In their closing brief, Mr. Vlatko Kupreskic's former lawyers

17 simply failed to refer to this police evidence at all. In their draft

18 Rule 115 motion, they state that they proposed to adduce on appeal a

19 statement by Miro Lazarevic who is one of the proposed additional

20 witnesses, showing the exact period that the appellant worked for the

21 police and the nature of his business. Kupreskic's former lawyers admit,

22 at page 2 of this document, that they did at the time of the trial have a

23 statement from Miro Lazarevic but that they decided not to call this

24 witness because they considered the Prosecution evidence to be irrelevant

25 to the case they had to meet. Well, it manifestly wasn't because that

Page 95

1 evidence was relied upon by the Trial Chamber in arriving at its guilty

2 verdict on count 1.

3 On page 3 of the draft Rule 115 motion, the appellant's former

4 lawyers make a further admission, that the accused during the trial

5 suggested that new evidence should be presented but they thought it was

6 irrelevant and a waste of time. It was just repeating other evidence.

7 Well, in our submission, that's clear evidence of gross negligence. It

8 wasn't repeating other evidence. It was only supporting, and it would

9 have supported what Vlatko Kupreskic himself had to say, again leaving the

10 defendant as a witness in his own cause when they had in their possession

11 independent evidence capable of supporting their own client's account. We

12 respectfully submit that that is a lamentable situation.

13 During his evidence, when he was being cross-examined, he

14 specifically said that there were witnesses available who could support

15 the evidence, and he named in his evidence Miro Lazarevic and Mohamed

16 Trako. He actually named them, and as I've already said they had one of

17 those statements already in their possession and I'm afraid did nothing

18 about it. I again mention their letter to me in relation to this. "We

19 were convinced there was no need for the additional evidence." They were

20 seriously in error there, we submit, and the position I hope is made clear

21 in paragraph 66. It is submitted that the appellant's former lawyers were

22 grossly negligent in failing to identify that evidence suggestive of the

23 appellants's involvement with the police was likely to be regarded by the

24 Trial Chamber as significant. Further, they were grossly negligent in

25 failing to seek to obtain and call any evidence to support the appellant's

Page 96

1 account of these documents, which were manifestly important elements in

2 the Prosecution's case. They were failing to follow the appellant's

3 instructions, as he told them there were these three witnesses who could

4 help his evidence on this. Lazarevic, Trako, both of whom he named in

5 evidence, and Ivan Cosic. That's what I say about that.

6 May I finally in conclusion just say this? It will take me

7 probably three or four minutes to say it. I hope I'll be allowed that

8 indulgence, Your Honours. Vlatko Kupreskic's case should, in our

9 respectful submission, give grave cause for concern. His former lawyers,

10 through their own documents - remember the four documents I focused on -

11 admit, summarising it, the following: Not understanding the nature of the

12 charge on which their client was convicted on the scope of it; not seeing

13 the relevance of evidence that they had, for example, the police evidence;

14 not proofing vital alibi witnesses who would have led to a whole new

15 strand or strut to the Defence case, which would have clearly supported

16 and enhanced the alibi evidence already called.

17 I want to say something now in closed session, the second and last

18 time, very briefly.

19 [Private session]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [Open session]

25 MR. ABELL: That's just a summarising, a flavour, of the

Page 97

1 admissions effectively that they made. This we submit goes much further

2 than litigation strategy or being selective about what evidence is called

3 for the Defence. It is, we submit, a failure in the former lawyers' duty

4 both to their client and to the court: A duty to their client to put his

5 case forward in its best possible light, to look at the worst case

6 scenario, to call all the relevant evidence, having obtained it and sought

7 it out diligently, that could answer, rebut or explain or cast into doubt

8 the Prosecution's evidence; and a failure of their duty to the court to

9 make sure that the Trial Chamber had the full picture.

10 We submit that the material we have produced and put in our Rule

11 115 motion and the reply and subsequent pleadings, that the Rule 115(A)

12 limb is properly and comprehensively made out on that material. This is

13 more, we submit, than a prima facie case, more than a lurking -- raising

14 more than a lurking doubt that an injustice may have been done by

15 incompetence -- and I quote there -- I cite there from that Tadic decision

16 that I mentioned earlier. We say that by virtue of their conduct at

17 trial, important evidence, which Your Honours have said it would be in the

18 interests of justice to hear, was simply not placed before the Trial

19 Chamber, evidence which may well have tilted the scales in Vlatko

20 Kupreskic's favour.

21 That is why we do submit in the alternative, as we said in our

22 reply to the Prosecution's response, in the alternative to the Rule 115(A)

23 point, that this is a case where the court's inherent jurisdiction as set

24 out in the case of the Prosecutor against Goran Jelisic, decision on

25 request to admit admissible evidence, 14th of December of 1999, I cite

Page 98

1 this: Considering, however, that the appeals Chamber maintains an

2 inherent power to admit such evidence, even if it was available at trial,

3 in cases in which its exclusion would lead to a miscarriage of justice.

4 So we have that alternative limb that we have put in our pleadings if, and

5 we hope that we have in our submissions, persuaded Your Honours to admit

6 this evidence under Rule 115(A), but if not, we submit in the alternative

7 that this is one of those cases where that Jelisic inherent jurisdiction

8 should apply so that the evidence that should have been called in this

9 man's trial is heard and assessed.

10 Those are my submissions. I am very sorry. I am four minutes

11 over time, forgive me.

12 JUDGE WALD: I'm not sure, but we will forgive you. Thank you

13 very much. We will hear any questions from the judges now.

14 I have two questions. I'll try to make them brief and that way --

15 I have two questions. Also before we adjourn for lunch, which should be

16 in the vicinity of 1.00 to 2.00, one of my colleagues has very helpfully

17 suggested that I failed earlier, this being my premier appearance as a

18 Presiding Judge, to have the defendants themselves be identified, and so I

19 hope before we adjourn for lunch and after I've finished the two

20 questions, we can ask the counsel to ask their clients to identify

21 themselves.

22 My two questions are the following: Do you think that at the time

23 the Kupreskic trial was being held, which is a few years ago now, that the

24 jurisprudence in the Tribunal was developed enough or clear, so that there

25 wasn't -- it wasn't reasonable for counsel to have some questions about

Page 99

1 exactly how a persecution charge related to more specific charges in the

2 indictment? This is an argument which has been raised, as you know. I'd

3 like to hear your comments on it.

4 MR. ABELL: Yes. I fully understand that as this Tribunal has

5 developed, jurisprudence and guidance naturally has developed. It is my

6 submission, though, that -- and I really foreshadowed it in my submission

7 when I said that if there is perceived imprecision in the count, then what

8 the Defence should do is ask the Prosecution for more detail; failing

9 that, ask the court for guidance as to more detail, so that the Defence

10 know from the Court, the Trial Chamber and the Prosecution, what evidence

11 it is that the Prosecution rely on in relation to count 1 or what evidence

12 the Court considers is important in relation to count 1. If there is

13 imprecision and vagueness, the Defence have got to meet it. If the

14 Defence don't get satisfactory answers, if I can be blunt about it, then

15 the Defence should err on the side of safety. It is far too risky to err

16 on the side of, "Well, we don't really know what this is about. We are

17 going to assume that count 1 is automatically proved if count 2 is proved,

18 and vice versa, if our client is acquitted on count 2, he'll be acquitted

19 on count 1." That, whether there was imprecision in the indictment or

20 not, is I'm sorry to say it, it doesn't please me to say it, but it is my

21 professional duty to say it, that is grossly negligent. It is not looking

22 after your client.

23 JUDGE WALD: My second and last question is: It would seem from

24 what we know you have submitted as part of the prima facie case, that much

25 of the new evidence which you would like to see admitted on appeal appears

Page 100

1 to be supportive of, not duplicative, I understand, but along the same

2 lines as some other evidence submitted at trial. Now, I understand you

3 say it was not fair to leave just the defendant with no supporting, or

4 just the mother or just the wife or somebody. I understand your

5 argument. But my question to you basically is: Is the nature of the

6 submissions that you would add to, under 115 or your alternative theory,

7 is it primarily along evidentiary lines that were probed, although you

8 don't think at all well enough, or is there any new, for want of a better

9 word, qualitative as opposed to quantitative evidence that you think was

10 omitted and that these proposed witnesses and documents would put in? And

11 if so, very briefly --

12 MR. ABELL: I will, I will be very brief.

13 JUDGE WALD: -- refresh my recollection.

14 MR. ABELL: The answer comes in two parts. I'll do the alibi

15 second, if I may. The police evidence aspect, item C, that was quality

16 evidence that they failed to call, for the reasons I've just explained.

17 All -- the only evidence -- it wasn't even touched on in the closing

18 brief. The only evidence was Vlatko Kupreskic himself left to give

19 evidence in his own cause about the police, naming people in positions of

20 authority who could help. He named them from the witness box. They had

21 statements from two of them. And they failed to call -- and he named all

22 three of them -- sorry, two in the witness box and one during the course

23 of the trial, and they failed to call all three. That would have been a

24 new area from people in authority. And I again, because I'm being brief,

25 refer Your Honour to the Rule 115 motion where it sets it out in detail.

Page 101

1 So that's not just a couple of extra witnesses tagged on to a long line of

2 witnesses, if I can put it that way. Those are important people who could

3 have supported the defendant in a material particular, and goodness knows

4 what effect that might have been on the Trial Chamber's view. They

5 clearly thought that his connection with the police was a significant

6 factor, which they clearly felt supported the correctness of the

7 identification by L. So it goes deep into their reasoning on the

8 conviction. How different the position might have been if they had heard

9 those three witnesses. That's the problem.

10 Part A, the alibi evidence, yes, some alibi evidence was called,

11 but the alibi evidence that wasn't called is of a different type, in

12 several ways. Firstly, the alibi evidence that wasn't called dealt with,

13 if you like, L's alibi. He couldn't have been where he claimed to have

14 been to identify Vlatko Kupreskic. Completely new area of evidence we

15 seek to put in. It wasn't touched at the trial. Plus, the -- what I'll

16 call the Ahmici strand of evidence, from the mother, from the

17 brother-in-law, one at the house, one at the shop of Vlatko Kupreskic, all

18 day, who could say, "We were there. He wasn't. There weren't any

19 soldiers."

20 I'm very helpfully reminded, and L wasn't there either. So again,

21 these aren't just two or three new witnesses to tag on to the end of a

22 long string all saying the same thing. These were witnesses who had

23 something new to say who could put a different perspective on to the

24 alibi.

25 JUDGE WALD: All right. Thank you very much. Thank you very

Page 102

1 much, Mr. Abell.

2 Now, before we adjourn for lunch, which will be 1.00 to 2.00, I

3 wonder if each of the defendants would stand and identify who he is. We

4 can begin over here on the right.

5 THE APPELLANT ZORAN KUPRESKIC: [Interpretation] Your Honour, I am

6 Zoran Kupreskic. I am the first accused in the Kupreskic and the other

7 case, and I was convicted for the Count 2 in the indictment, although I am

8 not guilty at all.

9 JUDGE WALD: Thank you. Next defendant.

10 THE APPELLANT MIRJAN KUPRESKIC: [Interpretation] Your Honour, I am

11 Mirjan Kupreskic. I am Zoran Kupreskic's brother, and I would like to

12 join my brother in his statement.

13 JUDGE WALD: All right.

14 THE APPELLANT VLATKO KUPRESKIC: [Interpretation] Your Honour, my

15 name is Vlatko Kupreskic. I am very happy with the arguments presented by

16 my counsel here, but if the new evidence in my case are not admitted, I

17 still believe that either I, myself, or my family will be able to prove

18 that I have nothing to do with the events in Ahmici.

19 THE APPELLANT DRAGO JOSIPOVIC: [Interpretation] Your Honour, my

20 name is Drago Josipovic. I was born in 1955. My Defence counsel is Luka

21 Susak, as you know. As you have heard, I also feel that I deem myself to

22 be completely innocent.

23 THE APPELLANT SANTIC: [Interpretation] Your Honour, my name is

24 Vladimir Santic. My Defence counsel is Petar Pavkovic.

25 JUDGE WALD: Thank you very much. We'll now --

Page 103

1 THE INTERPRETER: Microphone, please, Your Honour.

2 JUDGE WALD: We'll now stand adjourned until 2.00 when we'll hear

3 from the Prosecution.

4 --- Luncheon recess taken at 1.00 p.m.






















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Page 106

1 --- On resuming at 2.03 p.m.

2 JUDGE WALD: Good afternoon, we will resume the appeal of

3 Kupreskic et al. versus the Prosecutor. I believe it is the Prosecution's

4 time, as we say, "up at bat." Who will be representing the Prosecutor for

5 the next hour and a half?

6 MR. YAPA: May it please Your Honours.

7 Your Honour asked me the question as to who will be making the

8 response. We have four members in the team. They have been tasked with

9 responding individually in respect of submissions made by my learned

10 friends. We will be, if Your Honour pleases, following the same order in

11 the sense that we will be first responding to the submissions made by the

12 counsel for Mr. Josipovic, thereafter Mr. Zoran Kupreskic and Mirjan

13 Kupreskic and, finally, in response to the submissions made on behalf of

14 Mr. Vlatko Kupreskic.

15 The initial -- my task will be to make a few general observations

16 of submissions on the matter in issue before Your Honours, and also to

17 focus on the orders made by Your Honour by the scheduling order. In the

18 first instance, the decision on the motion for additional evidence;

19 secondly, the scheduling order and the order of clarification.

20 In responding to the submissions by the learned counsel for the

21 appellants, at the very outset I wish to emphasise that the Prosecution

22 will endeavour to make the required submissions, keeping in mind Your

23 Honours' decision of the 26th of February and the Scheduling Order of the

24 14th of March. At the same time, I wish to thank Your Honours for the

25 order of clarification of the 23rd of March. That order, with respect,

Page 107

1 states with clarity the purpose of this hearing and focuses on the issues

2 for the oral argument.

3 I lay stress on the order of clarification for the reason that the

4 counsel for Vlatko Kupreskic, I thought, made submission somewhat not

5 quite in order or in line with the order made or the clarification made in

6 the order of clarification.

7 If I may refer to the order that was made, or the clarification

8 that was made at page 4, considering that in relation to Vlatko Kupreskic,

9 the purpose of the oral hearing is to provide an opportunity to counsel

10 for Vlatko Kupreskic to put forward oral arguments based upon the material

11 that it has hitherto presented to the Appeals Chamber in the 115 motion to

12 show that where -- whether a prima facie case of gross negligence of the

13 former counsel exists. And thereafter, there is the next step that has

14 been initiated in Your Honours' order of the clarification, in the

15 penultimate paragraph. "Determination of the remaining requests (B) to

16 (E)," that is, the request made by the Prosecution, "be postponed until

17 the Appeals Chamber has carried out an assessment as to whether the prima

18 facie case of gross negligence is established."

19 So to our understanding, the hearing today in respect of --

20 particularly in respect of Vlatko Kupreskic, is for the counsel, on the

21 material presented by them as admitted by Your Honours' Chamber, to see

22 whether a prima facie case of gross negligence can be made. Thereafter,

23 Your Honours will assess the material that is presented or the arguments

24 presented and decide on the requests made by the Prosecution. That is our

25 understanding.

Page 108

1 Now, in the decision of the 26th of February, in respect of

2 certain identified items of evidence, items of evidence sought to be

3 presented by Vlatko Kupreskic, Your Honours found that the interests of

4 justice would require the presentation of such evidence subject to the

5 proviso that the appellant satisfied the Appeals Chamber as to the

6 requirements of Rule 115(A). On the question of availability, that comes

7 under Rule 115(A); the allegation of gross negligence on the part of

8 former counsel comes into play.

9 In the case of Drago Josipovic, the first item of evidence on

10 which oral arguments were required was the video recording of the

11 visibility on the 16th of April, 2000. The appellant had to present

12 arguments on both aspects of Rule 115.

13 As regards the second group of evidence, the appellant Josipovic

14 was expected to satisfy the requirements of Rule 115(B).

15 On the evidence sought to be admitted by Zoran and Mirjan

16 Kupreskic, on the first category, there was a requirement for oral

17 argument under Rule 115(B), and on the second category under both 115(A)

18 and 115(B). The response of the Prosecution on the submissions made will

19 be made by my colleagues in a short while.

20 Your Honours have in the decision of the 26th of February, with

21 respect, drawn attention to the guidelines laid down in the Tadic

22 additional evidence decision as to the applicability of Rule 115. We have

23 and we will try to formulate our arguments in accordance with the

24 pronouncements in the said decision. Some parts of the reasoning in that

25 case are peculiar to the facts of that case, but there are general

Page 109

1 principles that are relevant and material to the issues taken up in the

2 instant case.

3 May I be permitted to draw Your Honours' attention to a few of the

4 salient features of that decision so far as they appear relevant and

5 pertinent to this case? I would draw your attention, with respect, to the

6 passage at page 14 of the judgement - it is paragraph 35 - where it is

7 stated -- I would be reading only that passage because other passages I'll

8 be drawing your attention only by the number but in this paragraph. Their

9 Honours stated as follows:

10 "As to the second requirement, it is clear from the structure of

11 Rule 115 that interests of justice do not empower the Appeals Chamber to

12 authorize the presentation of additional evidence if it was available to

13 the moving party at the trial. Such an interpretation is supported by the

14 principle of finality. Naturally, the principle of finality must be

15 balanced against the needs to avoid a miscarriage of justice. When there

16 could be a miscarriage, the principle of finality will not operate to

17 prevent the admission of additional evidence that was not available at

18 trial if that evidence would assist in the determination of guilt or

19 innocence. It is obvious, however," this is an important passage, "that

20 if evidence is admitted on appeal, even though it was available at trial,

21 the principle of finality would lose much of the value which it has in any

22 sensible system of administering justice. It is only to the extent that

23 the Appeals Chamber is satisfied that this evidence in question was not

24 available at trial that it would be necessary to consider whether the

25 admission of evidence is required in the interests of justice."

Page 110

1 On this question, then, the matter of gross negligence of counsel

2 will be relevant on the question of availability. I would also draw Your

3 Honours' attention to certain other paragraphs in the same judgement. I

4 will make reference only to the judgement so far as they are relevant to

5 this presentation here. Paragraph 42, paragraph 47, 48, 49, and 50, and

6 also, as my learned friend submitted, paragraph 65 in that same

7 judgement. The conclusive paragraphs in that judgement, paragraphs 71 and

8 72, also become relevant.

9 The question of gross negligence. The word "gross" has a sense of

10 complete or blatant -- if I may make reference to that aspect: It is not

11 anything that could be glossed over. The counsel presenting arguments was

12 eloquent in criticising the former counsel. It will be our submission

13 that the appellant has failed to show such negligence on the part of

14 former counsel.

15 In the Tadic decision which I referred to previously, the matter

16 of due diligence was dealt with exhaustively and the following crucial

17 pronouncement appeared. I'm referring to paragraph 50, which I -- which I

18 made reference to earlier.

19 "The Appeals Chamber considers its right to add that no counsel

20 can be criticised for lack of due diligence in exhausting all available

21 courses of action if that counsel makes a reasoned determination that the

22 material in question is irrelevant to the matter in issue, even if that

23 determination turns out to be incorrect. Counsel may have chosen not to

24 present the evidence at trial because of his litigation strategy or

25 because of the view taken by him of the probative value of the evidence.

Page 111

1 The determination which the Chamber has to make, except in cases where

2 there is evidence of gross negligence, is whether the evidence was

3 available at the time of trial, subject to that exception counsel's

4 decision not to call evidence at trial, does not serve to make it

5 unavailable."

6 Before I pass on to the microphone to my colleague, mister --

7 Ms. Norul Rashid, I propose to deal with the aspect of due diligence.

8 The duty to be diligent does not prescribe a standard of

9 perfection in deciding whether counsel should have foreseen the harm and

10 guarded against it. It has been said that the court must be cautious

11 about the insidious subconscious influence of ex post facto knowledge.

12 In the system that is adopted in the Tribunal, that is the

13 adversary system, counsel has a right and a duty to decide what is

14 technically and tactically suitable. He may decide not to call witnesses

15 to limit or to limit cross-examination. When a case is concluded, in

16 retrospect there may be reflection as to whether if this or that point had

17 been taken, if certain questions had been or had not been asked, or

18 whether if some further witness had been called, whether the result would

19 have been different. This is hindsight. An attorney should be

20 independent and free to act without vexation of defending allegations

21 brought by disgruntled clients.

22 I submit, with respect, that a lawyer is required to act in the

23 best interests of his client, subject to an overriding duty to the court

24 in the interests of due administration of justice. A lawyer must not be

25 placed in a situation where he would be induced, as a matter of caution

Page 112

1 and prudence, to subordinate his independent professional judgement and

2 proceed on a line of action which his own personal judgement would have

3 led him to consider to be unwise.

4 These submissions I thought I should make as a general

5 introduction on this question of gross negligence. I would now give the

6 floor to Ms. Norul Rashid who will make submissions on the submissions

7 made by the counsel for Mr. Josipovic.

8 If Your Honours have any questions? I thank Your Honours.

9 MS. RASHID: May it please the Court.

10 Your Honour, I will be responding to the oral arguments raised by

11 learned counsel for appellant Drago Josipovic in relation to the video

12 recording on the visibility of Ahmici taken on 16 of April 2000, and a

13 single document which is entitled, "Massacre in the village of Ahmici was

14 committed by this special task force of the HVO police."

15 Your Honour, for purposes of the first portion of my submissions,

16 we need not go into closed session, but subsequently I will be referring

17 to the evidence of a witness who testified at closed session during the

18 trial, and I will be making that relevant application.

19 Your Honour, with regard to the video recording visibility, the

20 appellant, as I understand it, Your Honour, is attempting to admit the

21 video recording taken by his counsel in the Santici village on 16th of

22 April 2000 in front of the house of Nazif Ahmic for the purpose of

23 demonstrating that it was not possible to recognise a person at 5.45 a.m.

24 due to poor visibility conditions.

25 According to the appellant, and I'm referring to his motion, Your

Page 113

1 Honour, the proposed evidence relates to an issue raised at trial

2 involving the identification of the appellant by Witness DD, and that

3 would affect her credibility.

4 Your Honour, the explanation offered by the appellant in

5 attempting to satisfy the criteria in Rule 115(A) as to why this evidence

6 was not available is that the Defence could not have assumed that the

7 hearing council, that is the Trial Chamber, would have come to such a

8 conclusion meaning that his client would be convicted. Today he added

9 that it was a generally-known fact that the visibility conditions in

10 Ahmici at the material time was poor. So that was an added explanation,

11 so to speak.

12 Your Honour, as submitted by my learned colleague earlier, at

13 best, mere repeating that additional evidence cannot be admitted under

14 Rule 115 in the absence of a reasonable explanation as to why it was not

15 available at trial.

16 In relation to the requirement of due diligence, Your Honour, it

17 was held in the Tadic decision at paragraphs 48 to 50 that, "If counsel

18 chose not to present the evidence at trial because of his litigation

19 strategy or because of the probative value of the evidence, it does not

20 make the evidence unavailable."

21 It is submitted, Your Honour, that no reasonable explanation has

22 been offered and that due diligence requirement has not been complied with

23 for these reasons. The requirement of due diligence is both a matter of

24 criminal procedure regarding the admissibility of evidence and a matter of

25 professional conduct of lawyers according to the Appeals Chamber in

Page 114

1 Tadic. The mere assertion that the Defence was apparently certain that

2 the Trial Chamber would not be persuaded on all available evidence to

3 conclude that Witness DD had accurately identified the appellant at the

4 material time does not make the evidence unavailable.

5 The fact that the Defence made a judgement call with regard to

6 their assessment of the credibility of Witness DD and decided that no

7 further evidence was required to discredit her, even if that assessment

8 turns out to be incorrect, Your Honour, that does not make the evidence

9 unavailable according to the test in Tadic.

10 Therefore, Your Honour, a situation where evidence is not

11 presented as a consequence of a conscious and informed decision, that

12 cannot amount to unavailability. In Prosecutor and Jelisic, Your Honour,

13 that is the decision on the request to admit additional evidence dated 15

14 of November 2000, a similar explanation was offered by the Defence and was

15 soundly rejected by the Appeals Chamber.

16 The Appeals Chamber said that, "Noting that with respect to the

17 expert's report, the Defence submits that it did not present this evidence

18 at trial because it thought that no further insisting had been

19 necessary." The Appeals Chamber held that, "Considering that this does

20 not show that the evidence was unavailable at trial and, consequently, it

21 is not necessary to consider whether the admission of this evidence would

22 be required in the interests of justice."

23 And lastly, Your Honour, I would respectfully agree with the

24 Chamber's observations earlier that for counsel to forward this argument

25 as to why evidence was not available at trial would open the floodgates.

Page 115

1 Such explanations should not be allowed, Your Honour, it would lead to, as

2 Your Honour has observed, uncontrollable situations. That concludes my

3 submission on Rule 115(A), Your Honour. I will now proceed to the

4 applicability of Rule 115(B).

5 It is my respectful submission that the interests of justice

6 element in Rule 115(B) has not been fulfilled. The evidence is not

7 relevant to a material issue at trial which is the credibility of Witness

8 DD as to see in the video which has been offered by the Defence does not

9 reflect the visibility conditions existing at the material time when

10 Witness DD identified the appellant. And, Your Honour, further the

11 evidence is not such that it would probably show that the conviction was

12 unsafe as the issue of visibility was exhaustively litigated at trial.

13 With regard to the Trial Chamber's finding in relation to Witness

14 DD, they accepted her evidence and supported its findings for identifying

15 two relevant criteria; namely familiarity, and opportunity. Indeed, the

16 Trial Chamber said that the witness had known the accused as a neighbour

17 for a great many years and had ample opportunity to identify him during

18 the incident. Those observations are supported by Witness DD's evidence.

19 I will just briefly highlight her evidence if we may go into

20 closed session now, Your Honour. --

21 JUDGE WALD: Closed session, please.

22 [Private session]

23 [redacted]

24 [redacted]

25 [redacted]

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Page 118

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [Open session]

12 MS. RASHID: Your Honour, in relation to the appellant's

13 submissions earlier on Rule 89(C), the Prosecution would be grateful if

14 Your Honour could refer to our response, our submissions in our

15 consolidated response dated 20 of 11, 2000, where we have highlighted the

16 distinct differences between 89(C) and Rule 115. In this case, Your

17 Honour, this is purely a procedure under Rule 115 and that is the test the

18 appeals Chamber must apply, and not Rule 89(C).

19 Your Honour, in relation to the group of documents which the

20 appellant has sought to admit, I'm gratified of course that the appellant

21 is now of the view that the last two documents are not relevant. I take

22 it he's withdrawing his application to admit the three documents. I will

23 confine my submission, Your Honour, to the first -- the fourth document

24 referred to in Your Honours' decision entitled, "The massacre in the

25 village of Ahmici was committed by the special task force of the HVO

Page 119

1 police."

2 Your Honour, as a matter of some preliminary observations, the

3 Prosecution note that this document does not refer to the appellants, does

4 not refer to any of the co-appellants, either directly or indirectly. We

5 also note that the sources of the information contained in this document

6 are not identified. The circumstances under which this report was

7 prepared is not known, the purpose, the objective, are also not known.

8 There are no indications from the appellant's counsel that he intends to

9 adduce further evidence to explain the import of this document.

10 The Prosecution submits, Your Honour, that the relevance of this

11 document is limited, and that even if it was -- if it was presented at

12 trial, it is not likely to have a bearing on the Trial Chamber's findings

13 and final verdict. Alternatively, Your Honour, we submit that this

14 document is either not inconsistent with the Trial Chamber's findings or

15 are related to issues that have been fully litigated at trial.

16 The appellant suggests that this document indicates that only the

17 military police was involved in the attack in Ahmici, and by that

18 extension, he is arguing that the Vitez Brigade, which -- where the

19 appellant was a HVO reservist, was not involved at all. In relation to

20 para 1 to 2 of the document, Your Honour, it talks about the involvement

21 of the Jokers and a certain group of criminals released from the prison

22 Kaonik. And then para 2 went on to talk about a HVO soldier who gave an

23 account of what had happened in Ahmici. The issue of the military forces

24 that were involved in the attack in Ahmici was fully litigated at trial.

25 If I may refer Your Honour to paragraphs 128 to 135 of the judgement, the

Page 120

1 Trial Chamber considered evidence adduced by the Defence to support its

2 case that Croatian paramilitary formations and the Jokers were responsible

3 for much of the lawlessness rampant at the time in Vitez and its

4 environs. In its judgement, the Trial Chamber found that a number of

5 groups participated in the attacks, such as the military units of the HVO,

6 members of the Jokers, and able-bodied Croatian inhabitants of Ahmici.

7 The Prosecution -- it was the Prosecution's case all along that the

8 perpetrators of the attack all belonged to different units of the HVO.

9 They include the military police, the Vitezovi, the Jokers, the Black

10 Shirts, and even the Croatian army, the HV, who was also sighted on that

11 day.

12 In its analysis, Your Honour, the Trial Chamber did not exactly

13 specify which groups were involved in the entire operation in the Ahmici

14 Santici regions and the environs. Moreover, looking at this document,

15 Your Honour, paragraphs 4, the last -- sorry, the second last paragraph of

16 this document, talks about this man called Darko Kraljevic. Who was the

17 leader of this group, Vitezovi, and the Vitezovi group was also considered

18 by the Trial Chamber in its decision.

19 It is therefore submitted that this proposed additional evidence

20 does not contradict, it does not show that the Trial Chamber's findings

21 were incorrect, as the additional evidence does not demonstrate, even if

22 accepted as correct, that it was only the Jokers and the group of

23 prisoners that had exclusively participated in the attack.

24 Your Honour, if I may just round out my arguments, the material

25 issue that the document must relate to, Your Honour, is whether the

Page 121

1 appellant had participated as a reservist in the HVO. A considerable body

2 of evidence was adduced by both Defence and the Prosecution on the status

3 of the appellant as to whether he was an active member of the HVO, and I

4 need not go through the evidence. They are all in the Trial Chamber's

5 judgement.

6 To conclude, Your Honour, the issue as to the participating forces

7 involved in the attack in Ahmici was extensively litigated at trial. It

8 is submitted that even if the Trial Chamber had been made aware of this

9 document, it would not have made any different findings in relation to

10 whether the appellant, who was a HVO reservist, had participated in the

11 attack on 16 of April, 1993, and does not probably show that the verdict

12 was unsafe. The video, this document, fails to meet the criteria in Rule

13 115 and must be rejected. That is all, Your Honour.

14 JUDGE WALD: Thank you, Ms. Rashid. Do we have any questions for

15 Ms. Rashid? No. Thank you.

16 MS. RASHID: Grateful, Your Honour.

17 MR. GUARIGLIA: Good afternoons, Your Honours, my name is Fabricio

18 Guariglia. I am counsel for the Prosecution, and I will be responding to

19 the submissions made this morning by counsel for Zoran and Mirjan

20 Kupreskic. At the outset, Your Honour, I will only refer to statements

21 from protected witnesses as reflected in the Trial Chamber's judgement,

22 that is in the document that is already in the public domain. Therefore,

23 I don't forecast any need to go to private session.

24 Another point of clarification, the arguments will be presented

25 following the categories of evidence adopted by the appeals Chamber in its

Page 122

1 26 February, 2001 order. According to this order, there are three

2 categories of evidence pertaining to these appellants. First one is

3 comprised of documents relating to the command role of Zoran Kupreskic.

4 The second one, documents relating to the identification of HVO units in

5 the attack. And the third one are two video recordings of the visibility

6 in Ahmici on 16 and 17 of April, 2000. And Chamber may recall that only

7 in relation to the first two categories of evidence, there is no dispute

8 between the parties as to their availability at trial, so the only matters

9 that are in dispute were whether the second limb of 115 is met or not. As

10 far as the video recordings are concerned both limbs of Rule 115 are in

11 dispute.

12 Another point of clarification, the Prosecution will not embark in

13 an exercise of discussing matters pertaining to credibility and weight of

14 evidence presented at trial, which in our submission have no place in the

15 context of Rule 115 litigation. We will only focus on whether the

16 evidence as presented by the appellants meets the requirements under Rule

17 115.

18 The first group of evidence is first -- are documents relating to

19 the command role of Zoran Kupreskic, and they are comprised of eight

20 documents in total, following the Chamber's order. These are documents 6

21 to 13 inclusive.

22 All documents are proffered to challenge the Trial Chamber's

23 findings as to the command or leading role of the appellant Zoran

24 Kupreskic, and they include a number of orders and reports either

25 appointing or referring to sector and area commanders of the Vitez Brigade

Page 123

1 after the 16 April, 1993 attack. The appellant's position appears to be

2 that the absence of the name of the appellant Zoran Kupreskic in all of

3 these documents supports his contention that he was not a HVO commander

4 and that accordingly the Trial Chamber's findings would be in error. And

5 in particular, the appellant claims that the fact that Slavko Papic was

6 the local commander within the Vitez Brigade of the HVO, the only unit in

7 which the appellant could have been acting as a commander, rules out the

8 possibility of the Trial Chamber's making a finding of any commanding

9 position of the appellant.

10 It is our submission that these allegations misconstrue the Trial

11 Chamber's findings on this particular issue and the evidence supporting

12 those findings. And that there is no inconsistency between the documents

13 assuming the truthfulness of their contents solely for the purposes of

14 this hearing and the Trial Chamber's conclusions as to the role of the

15 appellant. The Trial Chamber's conclusion was that the appellant was a

16 local HVO commander. The Trial Chamber held that contrary to the

17 appellant's contention, his activities were not limited to assigning

18 village guard duties. The Prosecution's theory was that Zoran Kupreskic

19 had a leading role or a commanding role in the local HVO village guard

20 which was in turn vertically connected to the HVO Vitez Brigade. At no

21 point in time did the Prosecution contend that the appellant had the

22 hierarchy of a sector or area commander, nor did the Trial Chamber affirm

23 that he was one. In this sense, the documents are, in the Prosecution's

24 submission, totally incapable of rendering the verdicts unsafe under Rule

25 115(B).

Page 124

1 Further, the Trial Chamber heard abundant evidence on the status

2 and the role of the appellant. This evidence - and I will only highlight

3 some of the crucial items of evidence - this evidence, including the

4 appellant's active role in the negotiations between the HVO Santici and

5 the Muslims in the aftermath of an incident that took place on 20 October,

6 1992, including his signing of a document as a representative, as a local

7 representative of the HVO, ensuring the safety of the Muslims in the area

8 subject to the Muslims surrendering their weapons to the HVO.

9 The Trial Chamber also heard evidence of Nenad Santic at that

10 time -- at that time, the Vitez company commander of the temporary home

11 guard command, instructing third parties to deal with Zoran Kupreskic for

12 the purposes of ensuring the safety of the returning Muslims. The Trial

13 Chamber heard also abundant evidence pertaining to the military background

14 of the appellant and to his inclusion in a list of reservists in the HVO

15 Vitez Brigade and his military activities prior to the April 16, 1992

16 attack. And further the Trial Chamber also heard evidence pertaining to

17 his admission to Witness JJ of his commander status and the corroborating

18 testimonies on this last point of Witness SB, Abdulah Ahmic, Y and S, all

19 considered in paragraphs 377 to 381 of the judgement.

20 As to this alleged incompatibility between the appellant's status

21 within the local HVO and Slavko Papic's role in the Vitez Brigade, more

22 precisely within the first company of the first battalion of the Vitez

23 Brigade, the Trial Chamber also heard abundant evidence as to the latter's

24 active participation during the 16 April, 1993 attack, in particular, a

25 phone call that this person, that this commander, gave to a reserve

Page 125

1 soldier, Milutin Vidovic instructing him to wake up as many Croats as

2 possible and to warn them of the impending attack, and the Trial Chamber

3 did not find any contradiction whatsoever between Papic's commanding

4 position in the Vitez Brigade and the appellant's more confined status as

5 a local HVO commander in the Ahmici area.

6 In short, the documents proffered do not add anything that was not

7 already before the Trial Chamber at the time of making its final decision

8 in the case. The Prosecution submits that this evidence, if adduced at

9 trial, could have not had any bearing on the verdict.

10 There are two documents within this category, documents number 11

11 and number 12, which apparently have been proffered by the appellants to

12 demonstrate that Zoran Kupreskic could have not been a commander. These

13 documents are orders of the Vitez Brigade commander Mario Cerkez

14 appointing Slavko Papic as commander of the Pirici area around the

15 beginning of May of 1993. And the position appears to be that had the

16 appellant Zoran Kupreskic been a commander or local HVO commander, he

17 would have been appointed instead in this position.

18 Now, in our submission we have said that from the -- to begin

19 with, this is a purely speculative position, totally incapable of meeting

20 the requirements of Rule 115(B). But in addition to that, if the position

21 is as it appears to be, that the fact that the appellant was not appointed

22 area commander or in another commanding position after the attack, is

23 somehow indicative of an alleged lack of commanding status at the time of

24 the attack, then the truth is that according to the appellant's own

25 evidence at trial, he was, indeed, offered by Anto Bertovic, sector

Page 126

1 commander of the Vitez Brigade, the position of company commander within a

2 sector of the defence line around July, August 1993, that is, more or less

3 three months after the appointment of Mr. Papic.

4 So the evidence before the Trial Chamber indicated that the

5 appellant had a strong military background and that he was a reservist.

6 That he had been actively involved as a representative of the local HVO,

7 and had had a leading role in negotiations with the Muslim community

8 during October 1992. That he had admitted to third persons that he was,

9 indeed, a commander in the HVO. And further, that he was offered the

10 position of company commander three or four months after the 16 April 1993

11 attack.

12 It was on the basis of all this evidence considered by the Trial

13 Chamber that the Trial Chamber made its finding in relation to the

14 appellant's commanding role. Now, we submit that none of the documents

15 adduced contradict or refute this evidence. It is not possible, in our

16 submission, to conclude that had these documents been tendered at trial

17 they would have affected the Trial Chamber's findings. It is submitted

18 that they do not meet the requirements of Rule 115(B), and should simply

19 not be admitted by the Appeals Chamber.

20 I will move now to the second category of evidence, Your Honours,

21 that is documents pertaining to the identification of the units involved

22 in the attack. From this category, only documents 28 and 29 following the

23 order of Your Honours' decision have survived the initial scrutiny of the

24 Appeals Chamber. The first one, which is a document without an

25 identifiable source, refers to a so-called Operation Spider and signals a

Page 127

1 name Pasko Ljubicic as responsible for the crimes committed in Ahmici

2 together with an anti-terrorist platoon of the military police, the

3 Jokers.

4 The second document appears to be an intelligence report from the

5 intelligence service of Herceg-Bosna, the SIS, allegedly identifying also

6 units involved in the Ahmici massacre. Those units would be the military

7 police including the Jokers, and the HVO Stjepan Tomasevic Brigade.

8 The position that the appellants appear to be trying to establish

9 on the basis of these documents is that only those units and those

10 individuals mentioned in those documents could be responsible for the

11 crimes committed in Ahmici and that, basically, this would contradict the

12 Trial Chamber's findings as to the appellants, both appellants', Zoran and

13 Mirjan Kupreskic's, participation in the attack.

14 At the outset, Your Honour, the Prosecution's position is that

15 whereas the requirement of relevance contained in the second line of Rule

16 115 could, if one is generous, arguably be considered to have been met by

17 the documents, it is submitted that the evidence is definitely not such

18 that would probably render the conviction and save as required by the same

19 provision.

20 At the outset, the Prosecution also submits that the Trial

21 Chamber's judgement, far from attaching responsibility solely to local HVO

22 members for the attack, concluded that the military operation had involved

23 different units from the HVO including the Jokers. So already in this

24 aspect, the documents proffered do not contradict at all the findings of

25 the Trial Chamber. Further, the documents, on their face, and assuming

Page 128

1 are going to the truthfulness of their contents, do not exclude the

2 participation of local HVO supporters in the attack.

3 Here again, Your Honour, it may be pertinent to revisit briefly

4 the evidence that the Trial Chamber had before it indicating active

5 participation of local HVO members connected with the Vitez Brigade

6 immediately before and during the attack, and it's important to remind

7 that the Trial Chamber found no inconsistency between this participation

8 and the involvement of other HVO units, notably the Jokers.

9 Only highlighting some of the evidence before the Trial Chamber,

10 the Trial Chamber heard evidence of a meeting organised by Nenad Santic,

11 the local -- the HVO village guard commander around 2.00, 2.30 on 16 April

12 in the morning on 16 April 1993 and concluded that this was the occasion

13 in which the Croatian inhabitants of Ahmici heard about the impending

14 attack.

15 The Trial Chamber also heard evidence of the same Nenad Santic

16 instructing a witness to defend a bridge during the attack. The Trial

17 Chamber also heard evidence about the company commander of the HVO, Slavko

18 Papic, calling Defence witness Milutin Vidovic at 4.00 a.m. on 16 April

19 1993 and ordering him to wake up as many Croats as possible due to the

20 impending attack, and also had before it a certificate reflecting or

21 certifying the wounding of a member of the HVO Vitez Brigade during the

22 attack, that was Nikola Omasic. And finally the Trial Chamber also heard

23 expert witness evidence from Brigadier Dzambasovic explaining in detail

24 how the system of call-ups and messengers would act normally before a

25 military attack started, and how that system would set in force those

Page 129

1 reservists that ought to be mobilised.

2 So the Trial Chamber had all this evidence before it. On the

3 basis of all this evidence, it concluded that local members of the HVO,

4 together with other HVO units, participated actively in the attack. And

5 in this sense, the documents adduced by the appellants do not -- do not

6 alter at all this reconstruction of the Ahmici attack as performed by the

7 Trial Chamber. They do not establish what they purport to establish, that

8 the proposition that local members of the HVO participated in the attack

9 is incompatible with the proposition that other HVO forces also

10 participated in the attack.

11 Finally, Your Honours, I will move to the third category of

12 evidence, that is, the video recordings pertaining to the visibility of

13 Ahmici on 16 and 17 April 2000. The Prosecution has dealt in extenso with

14 these particular items of evidence in its consolidated response. The

15 first thing is it appears at this stage to be undisputed that the evidence

16 was undoubtedly available to counsel acting with due diligence at trial.

17 It is submitted that the explanation offered by counsel as to why this

18 evidence was not adduced at trial falls clearly short of constituting a

19 showing of unavailability.

20 The Prosecution submits that an erred prognosis of counsel cannot

21 constitute the basis for a valid argument on unavailability of evidence.

22 In addition, Your Honour, it is clear that the time to impeach the

23 credibility of Witness H is over, and that the appropriate procedural

24 stage for that particular exercise was during trial proceedings. Rule 115

25 is not a device to allow the parties to issue again -- to raise again

Page 130

1 issues of credibility and weight of the evidence presented at trial.

2 In reply, appellants have resorted to the inherent authority of

3 the Appeals Chamber to admit the evidence despite its availability at

4 trial when the exclusion of the evidence would lead to a miscarriage of

5 justice as affirmed by the Appeals Chamber in Tadic case. Now, no

6 explanation is offered as to why exclusion of this particular evidence

7 would lead to a miscarriage of justice.

8 At this stage, the Prosecution has to submit that the exception,

9 the miscarriage of justice exception does not, under Tadic itself, arise

10 automatically in instances where an appellant has failed to show that the

11 evidence was not available. I would submit that it should only be in

12 exceptional and rare instances where this exception to the strict

13 application or Rule 115 can be invoked. But at a minimum, with the

14 exception to be successfully invoked, the evidence must at least satisfy

15 the requirements of Rule 115(B), that is, it must be credible, relevant to

16 a material issue, and such that it would probably render the conviction

17 unsafe.

18 Now, the evidence proffered clearly fails to meet all these

19 requirements. It is at best only remotely relevant since it can only

20 refer to the visibility on 16 and 17 April 2000, an issue that is

21 immaterial for the purposes of the case. It has, if any, only negligible

22 probative value. It has not been accompanied by any evidence or

23 explanation as to its reliability or probative force. As a matter of

24 fact, what the appellant is doing is they are asking you to make the

25 following assumptions: That the visibility conditions were identical in

Page 131

1 the dawn of 16 April 1993, and 16 and 17 April 2000. And no explanation

2 is offered as to whether this is even empirically verifiable.

3 Further, that the visibility conditions would be identical in the

4 house that where the appellants were identified by the witness, and the

5 house where the videos were shot which, appellant concedes, is one of

6 appellant's father. Here we have no information whatsoever allowing us to

7 judge whether this is the case or not.

8 Finally, the third assumption that you are invited to make is that

9 all other conditions being equal, the image that is recorded by a video

10 camera in a tape and subsequently represented by another device on the

11 screen of a monitor is identical in precision and clarity to that captured

12 by the human eye. It is on this basis of this purely speculative and

13 totally unsubstantiated position that you are asked to use the exceptional

14 remedy of the miscarriage of justice exception.

15 Finally, Your Honour, the Prosecution notes that the appellant's

16 reasoning conveniently overlooks central features of Witness H's testimony

17 such as the short distance between the witness and the appellants at the

18 time of the identification, not more than one metre, and the fact that the

19 witness also recognised their voices.

20 The Prosecution notes that questions pertaining to the visibility

21 conditions not only in the witness' house but also in general, the

22 visibility conditions in Ahmici that morning were fully litigated at trial

23 and that counsel for the appellants vigorously cross-examined these

24 witnesses on this issue. Further, that appellant Zoran Kupreskic,

25 himself, testified as to this particular point. So the issue of

Page 132

1 visibility in Ahmici the day of the attack was, in our submission, fully

2 litigated at trial.

3 Your Honour, this concludes my submission on the motions of

4 appellants Zoran and Mirjan Kupreskic, and I apologise for the length. If

5 Your Honours will give me leave, I will give the floor to Mr. Anthony

6 Carmona.

7 JUDGE WALD: Before you do that, I think it's more convenient now

8 to ask if there are any questions that the Judges have to ask you

9 specifically.

10 I have one question, very short. It refers to the command, the

11 command documents proposed in the case of Zoran. As you are aware,

12 there's at least a good argument that can be made that he may have gotten

13 a higher sentence because he was considered to be a "commander" of some

14 sort.

15 So was there any -- you tell us that there may have been a whole

16 different level of local commanders who would not have been identified or

17 even talked about in any of these documents which dealt with sector

18 commanders and squad leaders and perhaps people higher up. Was there any

19 evidence at trial that suggested that was true, that you had a kind of a

20 local village level of hierarchy of commanders that was not part of this

21 hierarchy that was dealt with in the documents?

22 MR. GUARIGLIA: There was, Your Honour, and I would refer Your

23 Honours' attention, clearly it's not -- well, it's part of the trial

24 record to the Prosecution's closing brief where there was an extensive

25 analysis of all of the evidence pertaining to the structure of the home

Page 133

1 guards, how these home guards have been comprised of reservists, and they

2 were led by a local coordinator or commander that would be the point of

3 connection between that unit and the brigade to which they would report

4 to. This was established at trial, the vertical connection between the

5 home guard with the Vitez Brigade and the leading position of the

6 appellant Zoran Kupreskic in the local HVO.

7 JUDGE WALD: Thank you.

8 Now you may accede the floor to your colleague.

9 MR. CARMONA: Your Honours, I am guided by the directive you have

10 given this morning in relation to the focus and the ambit and breadth of

11 the exercise. The gravamen of the complaint of the appellant is that

12 there was not a just and full determination of the issues by the Trial

13 Chamber due to the gross negligence of counsel and the unavailability of

14 witnesses.

15 In deference, the Prosecution submits that representation by

16 trial counsel appearing for the appellant was adequate, and the pith and

17 substance of the defence was adequately canvassed before the Tribunal. It

18 is further submitted that there are multiple inherent and serious

19 contradictions in the assertions made by the appellant and among its

20 potential witnesses and the annexes and other documentations filed in

21 respect of the ground re trial counsel's incompetence.

22 In this regard, I would need to preface what I have to say with

23 some general observations, first of which the fact that counsel may appear

24 to have made at trial a mistaken decision, or indeed have made a decision

25 which in retrospect has been shown to have been mistaken, is not a proper

Page 134

1 basis for finding gross negligence. It is submitted that where counsel

2 has -- had made a decision in good faith after proper and careful

3 consideration of the competing arguments for and against, and where

4 appropriate, after due discussion with his client, such decision cannot be

5 deemed incompetency. In this regard, I need to place the inevitable

6 premise that he who moves must prove. I think in Tadic, that particular

7 directive finds credence in paragraph 52, which I may be allowed to read,

8 which says that a preliminary matter of general nature concerns the burden

9 of proof. The question at issue in this motion - and this motion dealt

10 also with the issue of incompetence - is whether the appellant is entitled

11 to a right given to him by the appeal process which he has invoked. It is

12 for him to establish his entitlement to the right which he claims.

13 Accordingly, it is for the appellant to prove the elements of the

14 entitlement.

15 The allegations by the appellant go to the question of the

16 diligence of his counsel at trial. In the Tadic case, the Appeals Chamber

17 treated the question of diligence in relation to the responsibilities of

18 trial counsel. They held that the accused has the burden of showing gross

19 professional negligence leading to a reasonable doubt as to whether

20 miscarriage of justice resulted. This hints at something exceptional.

21 This finding by the Appeals Chamber was made in relation to the

22 assessments of due diligence under Rule 115 of the rules. I will say in

23 passing that when one looks at the factual matrix of Tadic, one would

24 appreciate, for example, that the facts of that particular case are in

25 fact far more prominent, far more in fact outstanding, than this present

Page 135

1 case as intimated by my learned colleague on the other side.

2 Matter of factly, the test to be applied to determine whether or

3 not the assistance has been effective is a twofold test. The appellant

4 has the burden of proving gross professional negligence on the part of his

5 counsel and that there is a reasonable doubt as to whether a miscarriage

6 of justice has resulted.

7 It is submitted that it should be kept in the forefront at all

8 times that trial counsel did not have the advantage of present counsel who

9 is now quite au courant about what evidence was relevant for the ultimate

10 determination of guilt or innocence. The reading of the findings of the

11 Trial Chamber is a luxury that redounds to his benefit. And in this

12 regard, I wish to in fact in passing mention that the analysis of this

13 Chamber proceeds upon a strong presumption, and my analysis by extension,

14 that counsel's conduct served in the wide range of reasonable professional

15 assistance, because the onus is on the appellant to establish the acts or

16 omissions of the counsel alleged not to have been the result of reasonable

17 professional judgement, and in that exercise the wisdom of hindsight has

18 no place in the assessment process. It must be accepted that any diligent

19 counsel must exercise a sifting process and make a selection of the

20 evidence he considers most relevant, and in that regard is not expected to

21 call all evidence available to him. In its decision on a motion for

22 additional evidence in Tadic, it was said quite clinically in paragraphs

23 48 to 50, no counsel can be criticised for lack of due diligence in

24 exhausting all available causes of action if that counsel makes a

25 reasonable determination that the material in question is irrelevant to

Page 136

1 the matter in hand, even if that determination turns out to be incorrect.

2 In fact, the standard, in other words, is one of reasonable or

3 reasoned determination, and it is by that standard that the assessment

4 process must have its genesis. Because it is important that when we look

5 at a particular trial, it is important to maintain the unity of identity

6 of client and counsel. It is a type of umbilical cord, and courts ought

7 in fact to be loath to breach that umbilical cord unless in fact there is

8 indeed a preponderance of evidence.

9 In relation to the complaints, the accusation of gross negligence

10 is also linked to the alleged failure on the part of trial counsel to

11 comprehend the subject matter of count 1, which resulted in the failure to

12 call relevant evidence. In its general propositions, present counsel have

13 used former counsel's closing brief, draft grounds for appeal, former

14 counsel's letter of response to claim gross negligence. And as I am on

15 this whole issue of counsel's letter, I think in fact it is patently clear

16 that when one looks at the content of counsel's letter, he was in fact

17 constricted by not giving a full and comprehensive picture by what he saw

18 as in fact the relationship still subsisting between in fact his former

19 client and himself. In fact, without reference I would indicate that on

20 three occasions there is reference to the whole question of

21 client-attorney privilege. It is passing strange that the two letters

22 referred to my friend subsequently, which in fact is not before this

23 Tribunal, that there is absolutely nothing mentioned about a waiver of

24 privilege, notwithstanding Article 8(2)(b) of in fact the code of conduct

25 that obtains in this jurisdiction in relation to the whole question of

Page 137

1 confidentiality and counsel-client privilege.

2 Trial counsel was of the opinion, it is the submission of the

3 appellant, that if the Prosecution was able to prove the charges on count

4 12 to 15, their client would automatically also be found guilty of count

5 1. As a result of this view, trial counsel did not call the right

6 evidence to rebut the Prosecution case on count 1. This is the

7 contention. The appellant finds support, as I said before, in the

8 documents I've mentioned before. Now, even if trial counsel assumed that

9 Prosecution evidence of counts 12 to 15 would also cover the charges in

10 count 1, the trial record shows no indication that trial counsel was

11 grossly negligent in the defence of charges in count 1. The record does

12 not reveal that trial counsel were in no position to seek --

13 THE INTERPRETER: Could the counsel please slow down, especially

14 when reading?

15 JUDGE WALD: Could you slow down for the translator?

16 MR. CARMONA: Certainly. I'm accordingly guided, Your Honour.

17 The record does not reveal that trial counsel were in no position to seek

18 and obtain and call evidence to meet and rebut the Prosecution's evidence

19 behind the allegations that are in count 1. It is the submission of the

20 Prosecution that trial counsel made every effort to identify the charges

21 in count 1 that needed to be rebutted. The Defence closing brief, which

22 summarises the Defence case presented at trial, reveals that as well. In

23 that document, trial counsel identifies all possible charges that could

24 fall under count 1, critically examining the evidence led by the

25 Prosecution in its attempts to corroborate those charges and put forward

Page 138

1 arguments in rebuttal of this evidence. A great majority of the Defence

2 closing brief is devoted to this exercise in relation to count 1, and has

3 touched on practically all the issues that were considered relevant by the

4 Trial Chamber re count 1. An analysis of that closing brief and the Trial

5 Chamber's legal findings as to Vlatko Kupreskic's guilt under count 1

6 again illustrates that trial counsel had presented a proper defence. And

7 in that regard I wish to refer to the consolidated response motion of the

8 Prosecution outlining those paragraphs.

9 The vagueness and imprecision in the indictment with respect to

10 count 1 was subject to complaints by all Defence counsel at trial. Trial

11 counsel of Vlatko Kupreskic was not the only counsel that complained about

12 an alleged immateriality in the proceedings. All six accused filed

13 motions vis-a-vis the form of the indictment in which they argued the lack

14 of specificity on the indictment. The Prosecution submits that the

15 correspondence between trial and present counsel adds little to what was

16 already known and discussed at trial. This could not possibly indicate

17 negligence. It is passing strange that there are no such claims in

18 relation to the other attorneys who in fact appeared at trial.

19 The third document submitted by the appellant is the draft appeals

20 motion of trial counsel and brief. A brief in draft form has little

21 probative value. It will be highly unfair if the Appeals Chamber would

22 find that trial counsel acted with gross negligence on the basis of views

23 expressed in a draft document. For this reason alone, this document

24 cannot be relied upon as a demonstration of gross negligence of trial

25 counsel at trial. I dare say finally on this point, it is misconceived to

Page 139

1 apportion blame to trial counsel on the basis of a draft document as it is

2 misconceived to rely on a draft document of a Trial Chamber judge found in

3 the hallway.

4 In relation to the whole issue of additional evidence, counsel has

5 focused on alibi evidence and other matters relating to the 15th of April

6 and evidence rebutting the Prosecution's case as regards the appellant's

7 involvement with the police. It is important to note what is required in

8 the context of an alibi defence. An alibi can be disproved or rebutted.

9 It is expected that trial counsel would take all reasonable steps to

10 secure witnesses, and this could require the calling of either affirmative

11 or negative evidence, affirmative in the form of evidence that positively

12 evinces that the accused was in a different place at a given time, or in

13 the latter, evidence that is led to the effect, "I don't know where he was

14 but he was not at the locus in quo." The first type of evidence is

15 stronger by its very nature and possesses greater cogency and

16 reliability. The latter does not. Leading evidence of the absence of an

17 accused will depend on so many variable subjective factors. It is

18 submitted that when one looks at the evidence led by trial counsel, the

19 evidence in support of alibi, entailed leading evidence tending to show

20 that by reason of the presence of the defendant at a particular place, on

21 a particular area, or at a particular time, he was not or was not unlikely

22 to have been at the place where the offence is alleged to have been

23 committed at the time of the alleged commission.

24 In toto sequitur, evidence which merely indicates that the

25 defendant was not present at the scene of the crime, with no positive

Page 140

1 assertion as to where he was, is not evidence in support of an alibi, and

2 it is the submission of the state that if one looks at the evidence of the

3 various witnesses, it does not have the type of substantive quality as the

4 evidence that trial counsel led.

5 Let us examine these witnesses. We refer to additional evidence

6 involving Marija Kupreskic, Ivica Covic, AVK1, 2, 3, 4, 7, and 8. In

7 terms of there are two types of evidence, evidence unavailable --

8 MR. ABELL: Your Honour, I do apologise for interrupting my

9 learned friend. I'm just a little concerned if we are going to mention

10 protected witnesses, would it not be wiser to go into closed session? I

11 do apologise for interrupting.

12 MR. CARMONA: I'm grateful to my friend. I do apologise. I was

13 in full flight and in those circumstances I do in fact make the

14 application for a closed session.

15 JUDGE WALD: All right. But you will let us know when you're done

16 with closed session because indeed there is a tendency to keep going until

17 -- all right. We will go into closed session.

18 MR. CARMONA: Indeed, Your Honour.

19 JUDGE WALD: Thank you for your intervention.

20 [Private session]

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17 --- Recess taken at 3.37 p.m.

18 --- On resuming at 3.47 p.m.

19 [Open session]

20 JUDGE WALD: We now come to the last and briefest portion of our

21 appeal and we will have ten minutes rebuttal by the three Defence counsel

22 beginning with Mr. Susak.

23 MR. SUSAK: [Interpretation] Thank you, Your Honour.

24 I would first of all like to refer to Rule 89(C) which has been

25 erroneously interpreted by the Prosecution because this Rule stipulates

Page 149

1 that a Chamber may admit any relevant evidence which it deems to have

2 probative value. Therefore, the claim proffered by the Prosecution that I

3 have misinterpreted this rule is not correct.

4 According to Rule 107 of the Rules of Procedure and Evidence

5 regulating the procedure before the trial -- indicates that the same

6 procedure will be applied to appeal proceedings.

7 We believe that the videotape and the massacre in Ahmici, that

8 they both fulfil the condition required for them to be introduced into

9 evidence.

10 Madam Prosecutor likewise erroneously indicated that there was

11 enough evidence to identify Drago Josipovic by Witness DD stating that it

12 was possible for him to -- that witness to identify Mr. Josipovic. She

13 probably misunderstood me because I -- what I was talking about was

14 whether it was possible for the witness to identify Drago Josipovic from

15 the house where she was standing; that is, in front of Asim Ahmic's

16 house. The reason why this piece of information is important for me is to

17 be able to determine whether Witness DD spoke the truth or not.

18 Also relating to this issue, I have to state right at the outset

19 that the Appeals Chamber, in its decision, accepted the statement of

20 Witness CA who was a Court witness and it is precisely the statement of

21 this witness that impeaches the credibility of Witness DD. The Appeals

22 Chamber has accepted this statement without prejudice as specified in the

23 decision.

24 Madam Prosecutor likewise said that I stated that Drago Josipovic

25 would not be convicted, would not be considered guilty; that is not

Page 150

1 correct. What I said was that the testimony of Witness DD was not true

2 and that it could not be taken into account as such.

3 The judgement rendered by the Trial Chamber came as a great

4 surprise to me and so did the explanations provided by the Madam

5 Prosecutor here today. Witness DD remains to be controversial and the

6 Trial Chamber did not approach this issue in the same manner as it did

7 other related issues in the same case.

8 Witness DD gave her statement to the investigator of the Office of

9 the Prosecutor five years after the event. It is therefore untrue when

10 the Prosecutor states that the -- that Witness DD speaks the truth because

11 she was his neighbour and she knew him well. The statement was taken, by

12 an investigator, from this witness once the indictment had been not only

13 amended but was already made public and confirmed by the Court.

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17 It is my belief that the Appeals Chamber can accept the additional

18 evidence in order to avoid any miscarriage of justice. And it is also my

19 belief that this piece of evidence, this videotape, should also be

20 admitted as additional evidence just as the document "Massacre in Ahmici,"

21 and the Appeals Chamber has already indicated in its decision the

22 importance of this document in the proceedings which is quite contrary to

23 what Madam Prosecutor has been saying.

24 In the Kordic judgement, it is indicated that the soldiers or,

25 rather, military police officers attacked the village of Ahmici and that

Page 152

1 the group, which was under the command of Witness AT, attacked Muzafer

2 Puscul's house yet, according to the judgement, it was mentioned that

3 these were members of the local police force.

4 After all, this document also indicates that it would follow from

5 this document that the village was attacked by members of the military

6 police and also by Jokers who were also part of the operation. I propose

7 that both these elements be admitted as additional evidence in this case.

8 Thank you.

9 JUDGE WALD: Judges, do you have any questions? No? Okay, thank

10 you Mr. Susak.

11 Go ahead, Mr. Radovic.

12 MR. RADOVIC: [Interpretation] Your Honours, I am quite used to a

13 legal system in which the actual correct determination of the facts is

14 very important, a search for material facts for the truth in which a

15 judgement is as close as possible to the actual state of affairs. I

16 believe that this Court pursues the same end because unless we establish

17 the facts correctly, we cannot make legal decisions. But when I listen to

18 what the Prosecution has been saying about us, I have been quite amazed.

19 And the question that I ask myself is whether the Prosecution cares about

20 the actual truth or not.

21 The first objection proffered by the Prosecution refers to

22 documents relating to Zoran Kupreskic as a local commander. Local

23 commander, Zoran Kupreskic was a local commander until such time when

24 we -- when he ceased to be the local commander which was in late January

25 or early February. On the 22nd of October 1992, he was the coordinator

Page 153

1 for village guards, and everything he did after the 22nd of October, the

2 only thing he did was to ensure that the Muslim neighbours were able to

3 return to the village and to make sure that the coexistence of Croats and

4 Muslims in Ahmici should continue just as it went on for such a long time,

5 and actually it existed until some persons from -- came from the outside

6 and did all this that actually happened there.

7 Since all the documents that are in existence speak about persons

8 who were in charge, who were commanders, and since the Prosecutor does not

9 have a single document indicating that Zoran Kupreskic was a commander, we

10 now have a situation in which we say, yes, somebody called Milutin then

11 somebody else called Slavko Papic, not Zarko Papic but Slavko Papic called

12 Milutin, but there is also a meeting attended by Dragan Vidovic in the

13 early morning of the 15th of April.

14 But if Zoran Kupreskic was any kind of a local commander, would

15 not -- would it not be logical for him to be invited either to the meeting

16 or to notify him that he is to carry out any operations. No, this is just

17 glossed over, "... but Zarko called this guy and Pero called that guy."

18 This will not make it possible for us to determine facts.

19 Then a counter-argument proffered by the Prosecution is that four

20 months later, the battalion commander asked Zoran Kupreskic whether he

21 would like to be a company commander, and a great deal of authority is

22 then imputed to Zoran Kupreskic. It is a well-known, undisputed fact that

23 Zoran Kupreskic graduated from the school of reserve officers in the

24 former Yugoslavia. There was no professional or reserve officers in the

25 army of Bosnian Croats at that time, and it was quite natural at that time

Page 154

1 that when somebody saw that it was in his file that he was a reserve

2 officer, to offer him such a job.

3 The reason why I have to hurry up is because my time is limited.

4 There is a document indicating that later on when he was proposed to be

5 commissioned as an officer, it was specified that he was not in favour of

6 the HDZ policy, and that he was not in favour of any policies aimed at

7 dividing the population on ethnic grounds. Therefore, Your Honours, we

8 would like you to bear in mind who it was who was called in the village of

9 Ahmici, that it was not Zoran Kupreskic. He would have been called if he

10 was -- if he had been a local commander, and all the relevant documents

11 indicate that he did not have a place in the chain of command. The

12 trouble that we have in this case is Dayton indicating that the

13 Prosecutors never served in the army or they do not have a notion -- they

14 do not know what national service is and what an army is -- what is the

15 organisation of the armed forces in those countries which do have national

16 service, and that is why we have had to prove to them that a reserve --

17 member of the reserve forces is a civilian until such time as he is

18 mobilised.

19 And now we have a term -- we ended up having this term active

20 reserve officer which is ridiculous. We called brigadier of the Muslim

21 army who was in -- also in the federation army, Asim Dzambasovic. He

22 explained everything. We were very happy with his testimony. He

23 explained everything, how one becomes a member of the reserve force, when

24 one becomes an active service personnel. But in the judgement, there is

25 nothing about his testimony.

Page 155

1 Although he was a Prosecution witness, it turns out that his

2 testimony was more in favour of the Defence than of the Prosecution. He

3 also explained the way in which special purposes units carry out their

4 actions, the kind of weapons that they had, those special units, how one

5 ensures that certain actions are kept secret if you want to get the

6 element of surprise. But the judgement does not take any account of

7 this. It would turn out that we questioned Asim Dzambasovic for no

8 reason, it was completely pointless the whole testimony and questioning.

9 The next issue that the Prosecution has something to say is the

10 issue of the home guard. Unfortunately, all the documents relating to the

11 home guard have been rejected. And now, willy-nilly, I have to give a

12 little explanation in this respect. In the Vitez area, as one of the

13 documents that have been rejected indicates, there are persons who have

14 been -- who were part of the command of the home guard although it is

15 quite clear that the home guard was never set up properly, because all the

16 reserve officers --

17 THE INTERPRETER: Could counsel please slow down.

18 JUDGE WALD: Counsel, will you slow down a bit because the

19 translators just can't pick up.

20 MR. RADOVIC: [Interpretation] I'm just trying to save us some

21 time.

22 Precisely because of this circumstance, we wanted to have these

23 documents relating to the home guard accepted because we wanted to

24 determine the actual situation. All the documents that we were able to

25 obtain were also available to the Prosecution. None of the documents from

Page 156

1 the archives that we used were not unavailable to Prosecution. It also

2 refers to the documents from the president of the republic because all the

3 documents were given both to us and to them.

4 When the Prosecutor talks about who participated in the attack on

5 Ahmici, they enumerate various units but they forget the judgement that

6 was rendered in public in the Kordic/Cerkez case where the Trial Chamber

7 stated that the commander of the Vitez Brigade is acquitted of charges

8 relating to his brigade taking part in the attack. The Prosecution should

9 have made a note that a different determination of fact was made in

10 another case.

11 As an argument in favour of the thesis that the locals also took

12 part in the Ahmici attack, they mentioned this of Nikola Omazic and the

13 actual fact of his wounding. When this happened to this person, he was a

14 civilian. Let us not forget that in every armed conflict between two

15 armed forces or even, if you like, when you have an exchange of gunfire or

16 even when only one side is opening fire, there is always the possibility

17 of civilian casualties, bullets can go astray.

18 And finally, the videotapes.

19 JUDGE WALD: One minute on the videotapes.

20 MR. RADOVIC: [Interpretation] I will take some time from my

21 colleague, the ten minutes that have been allotted to her, if you allow

22 me.

23 JUDGE WALD: Just a moment. Just a moment. It was very clear

24 from the scheduling order that the ten minutes was to incorporate both of

25 you. It's up to the both of you to decide who took the ten minutes, and I

Page 157

1 think you've taken the ten minutes. So I'm back to square one. You have

2 one minute to talk about the video and then -- otherwise it's not fair to

3 the other counsel. Go ahead.

4 MR. RADOVIC: [Interpretation] All right. I will use my minute as

5 follows: The 16th of April is in a few days. If the Prosecutor brings

6 into question the visibility on the 16th of April, they can send an

7 investigator to Ahmici on the 16th of April and they can tape the

8 visibility as it is on the 16th of April. Do I -- I'm still within my

9 time limit. All right.

10 JUDGE WALD: I don't have a watch with a second hand on it, but I

11 think, at most, you've got 20 seconds.

12 MR. RADOVIC: [Interpretation] The actual taping was done by a

13 professional cameraman who does work for TV. We were present when it was

14 taped and it was done at the proposal of Zoran Kupreskic because we did

15 not have any other idea how we could impeach Witness H. If I can have

16 just one more minute, you allowed this to my colleague, to my English

17 colleague.

18 JUDGE WALD: I'm afraid not. I think we have to adhere to our

19 rules. I think we have fully your argument from your main argument, from

20 your rebuttal, and from your papers. So I'll thank you, and unless the

21 Judges have any questions for you, we'll go on to Mr. Abell. Thank you.

22 MR. RADOVIC: [Interpretation] Thank you.

23 MR. ABELL: May it please Your Honours. Can I deal first of all

24 with the submissions on the evidence advanced by my learned friend,

25 Mr. Carmona, this afternoon.

Page 158

1 Can I put it in this way: What it comes to is that those

2 submissions made this afternoon are basically, and I say this with all due

3 respect, a summary of the Prosecution's consolidated response which was

4 filed some time ago. We rely, still, upon our Rule 115 reply dated the

5 15th of December of last year, which we submit comprehensively deals with

6 all the points advanced in that response by the Prosecution and

7 comprehensively therefore deals with the points advanced today by my

8 learned friend. But I will, if I may, just briefly, I hope briefly in the

9 time allowed to me, deal with some of the points he made.

10 Firstly, I hope not confusingly, may I take it in reverse order.

11 The police evidence, I think I can deal with that really quite swiftly.

12 We put it in this way, Your Honours: Not calling the supporting evidence

13 from independent sources is being suggested by the Prosecution in this

14 Court to be a considered, and I use his words "... and informed litigation

15 strategy," or stance and, therefore, was not grossly negligent.

16 We, with respect, to the Prosecution, profoundly disagree with the

17 Prosecution's submission for the following reasons: Firstly, the evidence

18 as to police involvement was clearly regarded by the Trial Chamber as

19 significant evidence and as evidence which assisted them in reaching their

20 guilty verdict on Count 1. It tied in and supported, in their view, the

21 identification evidence taken with the other, as we submit, rather tenuous

22 strands of evidence against Vlatko Kupreskic in this case.

23 Secondly, the evidence as to police involvement apparently was

24 adduced by the Prosecution at trial without objection, so presumably it

25 must have been conceded at trial that it was relevant to some issue. One

Page 159

1 would have expected therefore the Defence would be on notice, if it's

2 relevant to an issue, that whatever the issue was they ought to find out

3 what it was and also they ought to call evidence to rebut or explain or

4 neutralise that issue.

5 Thirdly, the client, Vlatko Kupreskic, a layman, in the witness

6 box named two of the three proposed witnesses we wish to call as

7 additional evidence. Former lawyers had a statement from one of those

8 witnesses and were on notice of the names of the others, and yet they

9 advised their client not to call the evidence because they considered it

10 was irrelevant, and a factual error, which I know it's very easy to fall

11 into, but it's not right to say that Ljubica Kupreskic gave evidence in

12 support of her husband about these documents. Vlatko Kupreskic stood

13 alone. The only evidence we can find in her evidence is transcript page

14 9396, lines 19 to 25, where Mr. Terrier in cross-examining Ljubica

15 Kupreskic, that's the defendant's wife -- I'm sorry, making -- forgive me,

16 making submissions, I'm helpfully corrected by my learned co-counsel,

17 mentions the document but says he wasn't proposing to ask Mrs. Kupreskic

18 about it because, I quote, "I don't think she would know that, whether she

19 knew anything special," et cetera. It seems to be conceded at trial by

20 the Prosecution, but it's not a document the lady could speak to. The

21 only person called who could speak to the document was the now appellant

22 Vlatko Kupreskic.

23 We submit quite bluntly that it is about the clearest case of

24 gross professional negligence that one could see, quite frankly, and I

25 hope I'm not quite putting it too high. It certainly is well above a

Page 160

1 prima facie case.

2 Can I turn to the alibi evidence just briefly and remind Your

3 Honours that, of course, under that category is other evidence relating to

4 the 15th of April, 1993, which includes, for instance, the presence of

5 soldiers in or around the Vlatko Kupreskic home. The alibi evidence which

6 was failed to be called, was not called by former lawyers, was relevant.

7 This court, Your Honours, have decided that it goes to an issue in the

8 case, and indeed would be subject to the gross negligence point, in the

9 interests of justice, to hear. We are obviously concerned about it. It

10 falls into two different strands. It's not right to say that it's not

11 just some more evidence that would, as it were, stand in a long line of

12 alibi witnesses. The strand that was called was the evidence that Vlatko

13 Kupreskic went to Split. What wasn't called is the evidence to show that

14 Witness L was not where he claimed he would have been to identify Vlatko

15 Kupreskic, independent evidence of Kupreskic being in Split, but because

16 it's independent, highly capable of being supportive of the correctness of

17 Kupreskic's alibi as being in Split.

18 Secondly, the second strand of evidence was that Vlatko Kupreskic

19 was not in Ahmici during the course of the day - this is the evidence that

20 wasn't called - nor were soldiers in or around or near his house on the

21 afternoon of the 15th -- again, an independent strand of evidence but

22 capable of supporting the other two strands of evidence. One strand was

23 called. Three strands of alibi evidence should have been called. We

24 reject with respect the Prosecution's submission that the strand of

25 evidence to say Kupreskic wasn't in Ahmici is not alibi evidence. It is.

Page 161

1 If we -- if evidence is called to say he's not where the Prosecution say

2 he would have been, that means he must be elsewhere. It's evidence in

3 support as an alibi. He's not in the place the Prosecution says he is.

4 So all that evidence is capable of cumulatively - and evidence like this

5 has to be seen cumulatively - supporting the evidence that was called and

6 of enhancing it.

7 I just briefly would wish to go into closed session to just deal

8 very, very briefly with some protected witnesses. I'm conscious of the

9 fact that I'm running out of time.

10 JUDGE WALD: You've got, I would estimate, two minutes, and you

11 may go into closed session.

12 [Private session]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 162

1 [redacted]

2 [redacted]

3 [redacted]

4 [Open session]

5 MR. ABELL: Very well. Might I just in two sentences -- I really

6 don't want to be unfair.

7 JUDGE WALD: The two sentences begin now.

8 MR. ABELL: Yes. The point about the standard of proof and the

9 order of clarification, we do submit -- stand by the submissions I made

10 this morning, that the standard of proof is a low one, a lurking doubt, or

11 a prima facie case of professional -- gross professional negligence, and

12 that if that is made out to that standard, there really is no need for

13 there to be a lengthy hearing involving evidence called live by both

14 sides. We submit the four documents in particular we have referred to,

15 made by Par and Krajina at the times I have mentioned, really do speak for

16 themselves, and the inferences can be drawn. A mighty long sentence the

17 second one. Sorry for that. I'll now sit down while my credit remains

18 good.

19 JUDGE WALD: Do we have any questions for Mr. Abell?

20 MR. ABELL: I'm so sorry.

21 JUDGE WALD: Go ahead. We are going to conclude. I have just a

22 few brief remarks to tell you of how we project the future of this appeal

23 so you can be aware. The Appeals Chamber plans to issue as prompt a

24 decision on the matters that we have discussed today as is feasible. We

25 are aware, as I mentioned earlier, there are some other pending motions,

Page 163

1 and those decisions will likewise be issued as promptly as it is possible

2 for us to issue them. At the same time that we issue our decision, we

3 contemplate issuing, simultaneously or immediately following, a briefing

4 schedule for the actual appeals briefs. We hope that enough decisions on

5 the 115 business and allied concerns will have been issued by then so that

6 you will be able to make use of that.

7 Now, I am also aware that there may be other 115 issues coming

8 up. I hope not, but one has been alluded to today, which we haven't even

9 received yet, so one can't be sure, but I believe it will be our practice

10 to go ahead and adhere to the scheduling order for the main briefs.

11 Either the subsequent decisions will be issued in time for the preparation

12 of the brief or it may be that you'll be allowed to file a short,

13 supplementary brief if it won't. Our strongest desire is to see the oral

14 argument in this appeal -- meaning the briefs will have been filed by the

15 end of June so that we can have a judgement in the fall before some of us

16 depart from the scene. I'm sure you don't want to begin the process all

17 over again. So we will depend upon the goodwill and the expeditious

18 efforts of counsel and will proceed as fast as we can, commensurate with

19 the rights of everybody involved.

20 The last thing I want to mention is that the rule requirement of a

21 Status Conference every 120 days means that we will schedule one for the

22 10th of April at 4.00, but you'll get a separate written notice of that.

23 I think that concludes all the business we have to take up today.

24 Thank you all for your diligence. Mr. Abell?

25 MR. ABELL: Could we, out of courtesy -- as you mentioned, will

Page 164

1 there be any 115 motions? We should tell you we do anticipate -- it won't

2 be very big. There will be one very soon, Your Honours.

3 JUDGE WALD: I did not say there was a ban on them. I evidenced a

4 hope that we wouldn't see too many of them. We will do our best with

5 them, but I hope you will use discretion and reserve in bringing other

6 ones and they will not, to the best of our ability, hold up going ahead

7 with the briefing schedule so that we can take care of this appeal.

8 MR. ABELL: We understand that. If I may say so, it echoes what

9 my lay client Mr. Kupreskic said when he was asked to identify himself,

10 that things are changing in the Ahmici area and evidence appears to be

11 coming out.

12 JUDGE WALD: I'm aware of that. Thank you, counsel, and thank you

13 to all the other people, and have a good weekend. Mr. Radovic?

14 MR. RADOVIC: [Interpretation] Just one question, Your Honour. You

15 have just mentioned that we will have an opportunity to write a supplement

16 to the brief. Does that also apply to the motions that we have submitted

17 before you decide on the submissions that were already made, based on Rule

18 115?

19 JUDGE WALD: No, no. Let me just clarify that. After you get a

20 decision on the matters discussed today -- anything that was involved in

21 today's appeal, when you get that decision, hopefully by that time it will

22 be possible to give you decisions on some without going into details of

23 the other pending motions. So hopefully you will have decisions on many

24 of these at the time that a briefing schedule begins. In the event that

25 we are not able to issue every decision at the same time we issue the

Page 165

1 decision on all the matters discussed today, and any others that we can

2 do, we will go ahead with the briefing schedule. In the event, then, that

3 a decision has to come down after the briefing schedule has begun on a

4 subsequent 115 motion, we will at least entertain the possibility of

5 letting you file a supplementary brief, if it's so far along in the

6 briefing process that it wouldn't be fair for you not to. But we are not

7 asking you to file any briefs before the decisions come down in today's

8 issues. Okay? Again, have a nice weekend.

9 --- Whereupon the Motion Hearing

10 adjourned at 4.25 p.m.