1. 1 Wednesday, 10th November, 1999

    2 [Open session]

    3 [The accused entered court]

    4 --- Upon commencing at 9.03 a.m.

    5 THE REGISTRAR: Case IT-95-16-T, the

    6 Prosecutor versus Zoran Kupreskic, Mirjan Kupreskic,

    7 Vlatko Kupreskic, Dragan Papic, and Vladimir Santic.

    8 JUDGE CASSESE: Good morning. We have today

    9 a tight schedule, and therefore I would propose the

    10 following schedule, so as to enable for Defence counsel

    11 to make their closing arguments: I propose that we be

    12 here in court from 9.00 to 10.30, when we'll take a

    13 20-minute break; we'll resume at 10.50 until 12.20, so

    14 a second Defence counsel, and then we'll take a

    15 10-minute break; we'll resume at 12.30 until 2.00.

    16 This would, as I say, enable three Defence counsel to

    17 speak each for an hour and a half, as agreed.

    18 Let us start right away. I assume Counsel

    19 Radovic will be the first one.

    20 Counsel Radovic.

    21 MR. RADOVIC: First of all, I have to

    22 apologise for the fact that I'm not a very good

    23 speaker; at any rate, not as good as the Prosecutor

    24 is. So if I do not manage to present my positions as

    25 well as he did, I apologise in advance.

  2. 1In addition to that, I shall make every

    2 effort, in my closing argument, to speak about the

    3 actual state of affairs as regards the indictment and

    4 the situation itself. I'm not going to go into partial

    5 accuracies or inaccuracies, as we've noted in the

    6 Prosecutor's closing argument.

    7 The most telling proof of this is that part

    8 of the closing argument of the Prosecutor where he

    9 says, in connection with the agreement reached on the

    10 21st of October, 1992, that it was impossible to hear

    11 anyone with regard to that agreement except for the

    12 accused Zoran Kupreskic himself, because there are no

    13 living witnesses who attended the signing of that

    14 agreement, that is quite inaccurate, and that is

    15 demonstrated by the fact that in the last list of

    16 witnesses that was presented by the Prosecutor was the

    17 name of Fuad Berbic.

    18 Fuad Berbic was a participant in this

    19 agreement. So if anyone wanted to hear him on this

    20 subject as to how the talks and negotiations evolved,

    21 then Fuad Berbic was supposed to have been heard, not

    22 give up on his testimony altogether and then state in

    23 one's closing argument that there are no living persons

    24 who attended this agreement except for Zoran

    25 Kupreskic.

  3. 1The proceedings started by the issuing of the

    2 first indictment, dated the 2nd of November, 1995,

    3 which was confirmed, and in this indictment, the period

    4 involving the counts was from the 16th to the 25th of

    5 April, 1993. This indictment included Marinko Katava

    6 as well, who gave an interview to the Prosecutor and

    7 who raised the question of his alibi. Witness CD had

    8 already confirmed his alibi in another case, that is to

    9 say, in the case against Tihofil Blaskic.

    10 After the alibi of Marinko Katava was

    11 confirmed, the Prosecutor gave up on this because of

    12 his alibi for the 16th of April, 1993, and as for the

    13 other accused, in order to avoid that kind of a

    14 situation again, to have other accused prove where they

    15 were and what they did on the 16th of April, then the

    16 time scope was extended; that is to say, it started

    17 with October 1992 and it goes on until the end of

    18 April, as mentioned in the amended indictment.

    19 The indictment itself, as it stands now,

    20 makes Defence counsel face major difficulties, and

    21 these difficulties lie in the following:

    22 Yesterday, until the very end, when the

    23 Prosecutor responded to the question put by the

    24 President of the Trial Chamber as to whether the murder

    25 of Sukrija was being included or not, we did not know

  4. 1what this was all about. Did it relate only to the

    2 general part about persecution, or did it only involve

    3 the events in the house of protected Witness KO? That

    4 is why we objected on previous occasions as well, the

    5 indictment as it stands, and it is on its basis that

    6 the trial, as it evolved, does not have a factual

    7 basis.

    8 We are also invoking the case of Dusko Tadic,

    9 where the facts were specified, and it was well known

    10 what he was being indicted for. Also, we invoke the

    11 Furundzija case, where, at first, the indictment was

    12 ambiguous, so to speak, and then at the request of the

    13 Defence counsel, the Prosecutor had to say specifically

    14 what Furundzija was being indicted for, and then this

    15 was accepted, and finally, the indictment that was made

    16 showed exactly what was being sought.

    17 Now, one of the things that the accused are

    18 being indicted for is the planning, organisation, and

    19 execution of attacks; however, it is our claim that

    20 such actions can be carried out only by persons who

    21 have a certain political influence or the ability to

    22 command, the power to command.

    23 Zoran Kupreskic never belonged to such a

    24 circle of persons who would have any political or

    25 military power. It is interesting that the Office of

  5. 1the Prosecutor here in The Hague had two persons who

    2 had great political power too, but they gave up on the

    3 Prosecution of these persons; that is, IT-95-14/2-PT,

    4 and another one, that is to say, Santic and Skopljak.

    5 First of all, we think that this trial

    6 contained less legal arguments. First and foremost,

    7 the factual situation has to be ascertained, and that

    8 is why we laid emphasis on that, that is to say, the

    9 establishment of facts.

    10 The indictment starts with the period

    11 beginning with October 1992, and there's no mention of

    12 any specific event that might have occurred. Why was

    13 this month selected to denote the beginning?

    14 During the proceedings, we lost a lot of time

    15 as we debated the conflict on the Vitez-Kiseljak road,

    16 by the Catholic cemetery, because the Prosecutor tried

    17 to portray this conflict to the Court as if it had been

    18 caused by the Croats; however, in his closing argument,

    19 the Prosecutor simply skips this conflict, and we do

    20 not believe that he has skipped it because he believes

    21 that everything is clear and everything has been proven

    22 and corroborated by evidence, or that he doesn't think

    23 that this conflict occurred at all on the 20th of

    24 October, but he skips over it because this conflict

    25 precisely shows that in Ahmici, there was an organised

  6. 1unit of the Muslim army which, at orders received from

    2 a higher command, had this road cut off.

    3 In order to prove that this is so, we have

    4 invoked a number of witnesses, primarily Prosecution

    5 witnesses, because we believe that Prosecution

    6 witnesses do not work in the interest of the Defence to

    7 help the accused, as it were. They are trying to help

    8 the other side, that is to say, the Prosecutor.

    9 So I wish to invoke the statement made by

    10 Witness Abdulah Ahmic, who said that the orders to

    11 place the roadblock came from the command of the

    12 Territorial Defence.

    13 Mehmed Ahmic, Witness B, and Fahrudin Ahmic,

    14 and Witness N and Witness AA, all say that the Muslims

    15 from Ahmici, assisted by Muslims from the village of

    16 Vrhovine, had the road cut off; that is to say that it

    17 is their military unit from Ahmici that did this and

    18 they received orders to that effect.

    19 As opposed to the Muslims from Ahmici, it has

    20 been undeniably proven that on this conflict on the

    21 20th of October, 1992, not a single Croat from Ahmici

    22 participated in this. So we do not view this event any

    23 more as the event from which the incriminated period

    24 began, according to the indictment or the period of

    25 conflict, because although the Prosecutor mentions this

  7. 1in his brief, however we take that event as a

    2 circumstance which proves the contrary to what the

    3 Prosecutor is claiming. That is to say that in Ahmici

    4 indeed there was an organised armed unit of the Muslim

    5 forces.

    6 This will be mentioned later when we talk

    7 about whether there was an organised unit or whether

    8 these were simply armed civilians who were defending

    9 their homes, as the Prosecutor is trying to portray to

    10 the Court.

    11 He is also trying to say that the Muslim

    12 population was entitled to safeguard their homes with

    13 rifles in their hands, and that was considered to be

    14 normal, and that did not jeopardise their neighbours,

    15 whereas the three Croats in Grabovi, in the middle part

    16 of Ahmici, by virtue of the fact that they carried guns

    17 while they were on night guard, they jeopardised the

    18 Muslim population, and there were many more of them

    19 several times over. But then we are going to go back

    20 to that later.

    21 The next point that I would like to refer to

    22 relates to the road between Vitez and Kiseljak; namely,

    23 whether this road was of strategic importance for the

    24 HVO or, more precisely, for the military component of

    25 the HVO.

  8. 1Several witnesses were also heard with regard

    2 to this count. Perhaps the most interesting are the

    3 statements made by the Prosecutor witnesses. So I

    4 would like to mention the statement made by Brian

    5 Watters, who confirms that this road was of a strategic

    6 importance.

    7 In addition to his opinion, he says that this

    8 is what he was told by the Muslim General Halilovic.

    9 Michael Sean Dooley and Witness B also confirmed the

    10 strategic importance. And Matthew Robert also does

    11 this indirectly, although he does not say it directly.

    12 However, he does speak about it indirectly in the part

    13 where he speaks about the fact that every army tries to

    14 break up the military grouping of the enemy side into

    15 several parts and then these fragmented units are

    16 destroyed separately. After all, this is a well-known

    17 fact, not only in infantry battles, but also in sea

    18 battles, and even Admiral Nelson did this during the

    19 Battle of Trafalgar when he conquered the French fleet.

    20 However, it's nicer to see it when it's done by ships

    21 and navies. It's far more elegant than when it's done

    22 by infantry on the ground.

    23 But this was a strategic road and it was,

    24 after all, confirmed by the Crown witness, so to speak,

    25 the Crown witness of the Prosecution, and we were quite

  9. 1satisfied with that person, and the expert witness,

    2 Asim Dzambasovic.

    3 We also invoke his statement on several

    4 occasions because essentially this expert witness

    5 proved what the Defence sought to prove throughout the

    6 trial.

    7 The next point would be proving that there

    8 were military reasons for placing Ahmici under HVO

    9 control. I should kindly like to ask that when I

    10 elaborate these military reasons, that you do not

    11 understand this as us saying that there have to be

    12 civilian casualties. We are not saying that. No. We

    13 accept the fact that there were crimes committed and

    14 that there were civilian victims; however, we do not

    15 accept that there were not any military reasons

    16 involved when the decision was made to go to war. And

    17 at what level and on which side this was decided, we

    18 don't want to debate that, because we were never in a

    19 position to reach decisions on war and peace.

    20 We were not warlords. We were small people

    21 in the village of Ahmici, or on the outskirts of the

    22 village of Ahmici, bordering the Muslim part of the

    23 village of Ahmici. So as for civilian victims, we

    24 recognise what the Prosecutor said, although we say

    25 that we could not have known about this, nor did we

  10. 1participate in this.

    2 As for the assessment of what happened in

    3 Ahmici, I must say that I found the statement by Brian

    4 Watters strange. He claimed that Ahmici was attacked

    5 because Ahmici had a special religious importance for

    6 the Muslims, because several Imans come from Ahmici,

    7 more than usual than other Muslim communities.

    8 However, when we heard the testimonies of

    9 Muslims, including Witness EE and Abdulah Ahmic, none

    10 of them confirmed that fact. Therefore, if no one from

    11 Ahmici knows of this, that is to say that Ahmici would

    12 have a special emotional importance for Muslims from

    13 the Lasva River Valley area, then I believe that this

    14 special significance did not exist at all. It is the

    15 people of Ahmici who would have known about this better

    16 than anyone who could have whispered this into the ear

    17 of Witness Brian Watters.

    18 So this kind of information we can leave in

    19 the sphere of propaganda rather than proven facts,

    20 established facts.

    21 In P-1, -2 and -3, those exhibits, it is

    22 obvious that the road Vitez-Kiseljak passes through the

    23 lower part of the village of Ahmici and that on one

    24 side and the other side of that road there are houses.

    25 There are houses of Muslims, not only of Croats. In

  11. 1addition to that, the upper and the middle part of the

    2 village of Ahmici is above that road.

    3 Now, I have to draw your attention to the

    4 following: that is to say, the control over a road is

    5 not only achieved by physically taking the road. In

    6 military terminology there is an expression, "holding

    7 under fire control," which means that a side that has

    8 mortars, cannons, or any other kind of gunfire, and

    9 that can stop passage along that road by such means,

    10 can actually cut off the road and keep the road under

    11 its control in that way.

    12 The positions in Ahmici are such that if a

    13 side does not actually have control of the road

    14 physically, can through its gunfire from those

    15 positions exercise control over that road.

    16 The Prosecutor said that there were no Muslim

    17 soldiers in Ahmici and that these were armed civilians

    18 who, with a rifle in their hands, defended their

    19 homes. This thesis has legal impact; that is to say

    20 that these are civilians, persons, or groups of persons

    21 who are defending their homes. However, when an army

    22 is organised according to territorial principle, all

    23 soldiers are in their homes, soldiers who do not defend

    24 only their homes, but who, when they receive orders,

    25 can also launch an attack, just as the unit from Ahmici

  12. 1on the 20th of October, 1992 went to cut off the road,

    2 which was a crucial artery for the HVO.

    3 The Prosecutor evolved the following thesis:

    4 That is to say that in Ahmici there were no Muslim

    5 soldiers. He bases this on statements made by the

    6 British officers from the British Battalion; that is to

    7 say, Brian Watters, who claims that they never saw

    8 members of the Muslim army; that in Ahmici, when they

    9 saw persons who were killed, that there were no persons

    10 in military uniforms; and that in Ahmici there were no

    11 military facilities.

    12 However, this witness also allowed for the

    13 possibilities that among the dead there were bodies of

    14 soldiers not in uniform. Michael Sean Dooley and

    15 Matthew Robert said something similar, and so did

    16 Stephen Hughes. However, Stephen Hughes did see two

    17 corpses wearing parts of uniforms. However, it is not

    18 this part of their testimony that is important to us,

    19 because it refers to the military experience of a

    20 person serving in an army which has a tradition going

    21 back for several centuries, and where it is

    22 unimaginable that military personnel could go to war in

    23 civilian clothes, and that they might reside in

    24 buildings or camps and so on.

    25 Apart from this, we think that the testimony

  13. 1of the officer of the British Battalion is partly

    2 motivated by the terrible picture of the burnt-out

    3 village of Ahmici, all those gutted houses, which

    4 really looked dreadful, and the number of corpses,

    5 corpses not in uniform and without any insignia,

    6 military insignia.

    7 However, as regards uniforms, a better

    8 picture is provided by the members of the Muslim people

    9 from the village of Ahmici. The fact that there were

    10 no persons in uniform among those who were killed, or

    11 the fact that some of them had parts of uniforms, does

    12 not indicate that there were no soldiers there, because

    13 some soldiers did not have uniforms, while others had

    14 them at home but were not wearing them.

    15 Also, the fact that there were no military

    16 facilities in the village of Ahmici means absolutely

    17 nothing under conditions of Territorial Defence,

    18 especially in a village where there are many barns and

    19 similar places which can be used as arms and ammunition

    20 depots. So the whole village in fact is a military

    21 facility, and this is a basic fact of Territorial

    22 Defence which was not understood by the officers of the

    23 British Battalion. In spite of all our efforts to

    24 explain this, the Prosecutor did not understand it

    25 either. But we shall be able to explain this better

  14. 1when we talk about the organisation of Territorial

    2 Defence and about the home guard.

    3 The fact that some of the Muslims did have

    4 uniforms but did not put them on on that day follows

    5 from the testimony of Witness C, who said that his

    6 brother started to put on his uniform on that day but

    7 then gave up.

    8 Witness D, whose father was the leader of a

    9 group, says his younger son had the uniform. Another

    10 witness said that while fleeing, a person he knows put

    11 on a uniform and others wore uniforms sometimes.

    12 What is especially important, and we shall

    13 often refer to this witness in our statement, is the

    14 testimony of Witness V, who confirmed that he never had

    15 a uniform and he did not have it on the 16th of April,

    16 1993; neither did he have it when he went to the war

    17 front against the Serbs. And this same witness who had

    18 command responsibilities and who is a Prosecution

    19 witness said that there were many Muslims wearing

    20 civilian clothes on the war front against the Serbs.

    21 Then there is Witness Z, who says that he did

    22 have a uniform at home but that he hid his uniform on

    23 the 16th of April, 1993.

    24 And finally, expert witness Asim Dzambasovic

    25 confirmed that there was a shortage of uniforms in the

  15. 1Muslim army, and that is why many soldiers did not have

    2 uniforms, either at home, when they were in the

    3 Territorial Defence, or when they went to the war front

    4 against the Serbs.

    5 One witness went so far as to say that not

    6 only were these people wearing civilian clothes on the

    7 war front, but they did not even have any kind of

    8 patches or any military insignia on their civilian

    9 clothes. So when we look at these testimonies by

    10 witnesses who are all Prosecution witnesses, then we

    11 can see that among the military-able men who were among

    12 the corpses in Ahmici, the fact that they were not

    13 wearing uniform is of no relevance whatsoever.

    14 The fact that there were no military

    15 facilities, in the traditional sense of the word, in

    16 Ahmici is something I have already mentioned. The

    17 expert witness, Asim Dzambasovic, said that the members

    18 of the Territorial Defence were located at their homes,

    19 and the existence of a military unit, a Muslim military

    20 unit in Ahmici, is also confirmed by Witness CD, who

    21 said that the members of the British Battalion were not

    22 aware of the fact that a Muslim military unit existed

    23 in Ahmici because they were obliged to report to

    24 UNPROFOR places where there were military units, and

    25 the military unit in Ahmici had not been registered,

  16. 1which is why members of BritBat say that there was no

    2 military unit in Ahmici.

    3 What in fact the departure of people who were

    4 located at home to the war front looked like is evident

    5 from the video which was shown here and which shows a

    6 person going from house to house collecting men.

    7 With regard to the membership of people from

    8 Ahmici, Abdulah Ahmic confirmed that people from Ahmici

    9 were part of the Muslim-Vitez Brigade or, as they

    10 called it, the 325th Mountain Brigade, which had an

    11 organised command, which sometimes organised military

    12 exercises. And there were no barracks in Ahmici, but

    13 this soldier slept in their homes.

    14 The testimony of Abdulah Ahmic is

    15 corroborated by a Defence witness, and this is the only

    16 Defence witness we are referring to, Gordana Cuic, who,

    17 after the 20th of October, saw a unit of Muslims with

    18 weapons going to a military exercise. And their leader

    19 was Fuad Berbic, who said he was not afraid because

    20 this was just an exercise. Witness L also confirmed

    21 that this was the 325th Mountain Brigade.

    22 What is of special interest to us is Witness

    23 V. Not the part of his testimony that started with the

    24 Prosecutor's examination, but rather the part of his

    25 testimony after he was shown his own diary, which he

  17. 1admitted was written by him. So this document has not

    2 been challenged. It's a document drawn up by Witness V

    3 before the 16th of April, and in his haste to leave his

    4 home, he left it behind, where it was found, and that

    5 is why it was available to be used in these

    6 proceedings.

    7 According to what is written in this

    8 document, it follows clearly that people from Ahmici

    9 went to the military review of the battalion, to a

    10 company review in Vrhovine; that Witness V was

    11 appointed squad commander. And when all this was said

    12 to him, he went so far as to say that he has such a bad

    13 memory for dates that he could say nothing about the

    14 establishment of the brigade or about the unit to which

    15 he belonged at the time in question. However, we are

    16 invoking not so much his testimony as his diary, which

    17 he admitted writing in his own hand.

    18 Not only was there a military unit, but this

    19 military unit also had a military radio station with

    20 which it was linked with a higher command. We regret

    21 not having an appropriate technical witness who could

    22 testify about the technical characteristics of this

    23 radio transmitter, but, according to our information,

    24 with an appropriate antenna, it, from the position

    25 where it was located, it could communicate with a corps

  18. 1command in Zenica. Therefore, they were very well

    2 connected; they had very good contacts with the corps

    3 command.

    4 Witness Y essentially said the same as

    5 Witness V, although unfortunately he did not keep a

    6 diary, or we did not have it, because we could have

    7 seen a lot if we had had it.

    8 This witness came from the brigade command to

    9 help in the final organisation of the unit or, rather,

    10 the company in Ahmici. He avoided saying that he was

    11 one of the commanders in Ahmici. However, when it was

    12 said that a telegram arrived with orders that the unit

    13 should raise its -- that he was present at the meetings

    14 where they discussed the defence lines, and he was also

    15 present at the meetings where it was decided that

    16 guards should be established as a security measure.

    17 The fact that the army of BH, quite apart

    18 from Ahmici, had strong forces on the territory of the

    19 Vitez municipality follows from the statement of the

    20 witness Charles McLeod. From his statement, it follows

    21 clearly that Colonel Blaskic himself was surprised by

    22 the strength of the counterattack by the army of Bosnia

    23 and Herzegovina, and this forceful counterattack, which

    24 led to the loss of some Croatian villages, could not

    25 have been mounted had they not been present in the

  19. 1area, since it is quite clear, and this was confirmed

    2 by expert witness Asim Dzambasovic, that the army of B

    3 and H lacked weapons. They had a shortage of weapons

    4 and, therefore, it was not very mobile. Although the

    5 infantry, at least from what we could read in the

    6 newspapers, was very good, it took a long time for the

    7 infantry to be moved from one area to another because

    8 this had to be done mostly on foot and not by

    9 vehicles.

    10 Another interesting statement is that by

    11 Charles McLeod. All this time we were talking about

    12 the unarmed village of Ahmici, but he expressly stated

    13 that he did not believe that the village of Ahmici was

    14 not defended, because all the other villages mentioned

    15 in the indictment were defended, defended successfully;

    16 not only that, but the Croatian parts of these villages

    17 were lost for the Croats, and it is his assessment that

    18 the defence of the village of Ahmici was inadequate.

    19 I believe that this witness is also a former

    20 officer of the British army, who at that time was a

    21 military observer, and as regards this fact, he has

    22 absolutely no reason not to tell the truth. This is

    23 all the more convincing because he made his statement

    24 not under the direct impression of the burnt-out

    25 village of Ahmici and the corpses there, which left

  20. 1such a deep impression on the members of the British

    2 Battalion who were there, as it would have made on any

    3 one of us had we been there. Therefore, we deny that

    4 this was an undefended village.

    5 Something should be said about the fact which

    6 the Prosecutor calls a surprise attack. I have already

    7 mentioned that my client cannot be charged with

    8 organising or preparing an attack, and I have said that

    9 this was not an undefended village.

    10 In the situation where the masters of war

    11 decided that war should begin, surprise, as a military

    12 skill, cannot be seen as going against any law of war.

    13 The fact that surprise is an essential factor in any

    14 military operation follows from the testimonies of all

    15 the witnesses who had any knowledge of what is and what

    16 is not permitted in war and what effects are aimed at

    17 in a war; Bryan Watters, Witness B, and Asim

    18 Dzambasovic also confirmed this. One of the basic

    19 rules of war is to surprise the adversary. The greater

    20 the surprise, the better the effects.

    21 We shall even go so far as to say that the

    22 Muslims did have indications that something was afoot

    23 but that they did not pay proper attention to these

    24 indications and that they did not prepare properly. We

    25 refer to the testimonies of Witness Esad Rizvanovic,

  21. 1Witness B, and especially the fact that at about 23.00,

    2 Captain Matthew Woolley arrived in the headquarters in

    3 Vitez and told the staff officers who were there that

    4 Colonel Blaskic was having meetings with numerous

    5 officers in uniform, and this should have been a clear

    6 indication to them that if the staff of a zone is

    7 having meetings at such a late hour, then early the

    8 following morning, which is when attacks usually start,

    9 something was going to happen.

    10 However, they were not cautious enough, and

    11 the only measures they undertook were to sleep together

    12 in one place, as if they could achieve something in

    13 this way in the line of defence, and the people in

    14 Ahmici were given orders to raise their combat

    15 readiness and so they doubled their guards.

    16 The fact that they doubled their guards was

    17 not a good response to the orders they were given,

    18 because when a unit is ordered to raise their combat

    19 readiness to the first degree, that means that the unit

    20 should be at their positions and that every member of

    21 the unit must be prepared to fire, on command, at the

    22 enemy.

    23 It is alleged that Zoran Kupreskic, in the

    24 period covered by the indictment, was a person who

    25 persecuted Muslims. I will not now list all the

  22. 1witnesses who confirmed precisely the opposite and who

    2 told us that in all three aspects of his life -- at

    3 home, at work, and in his leisure time -- he was not

    4 against Muslims but, on the contrary, that he

    5 socialised with them until the last moment, that he

    6 attended Bajram celebrations in Muslim houses in 1993,

    7 that he played at Bajram celebrations in Stari Vitez,

    8 but I shall only point out the fact that the only

    9 multiethnic society or group of people functioning in

    10 that way was the folklore group, of which the Kupreskic

    11 brothers were members.

    12 Therefore, even if there was pressure brought

    13 to bear on them to join a single ethnic society, they

    14 managed to oppose this -- and they suffered material

    15 damage because no one gave them any financial support

    16 because they were a multiethnic society -- then this

    17 shows that Zoran was never against a multiethnic

    18 cultural society and that he showed no tendencies of

    19 belittling, humiliating, or depriving anyone of their

    20 rights simply because they belonged to another race or

    21 religion.

    22 We have, during the course of the

    23 proceedings, provided ample evidence of this, so I

    24 don't think there's any need to go back to that.

    25 We come now to a more complicated issue, and

  23. 1that is whether Zoran Kupreskic was an HVO soldier

    2 before the crimes were committed. The Defence alleges

    3 that he was not.

    4 In his closing statement, the Prosecutor said

    5 something which does not exist anywhere in the world;

    6 he talks about an active reservist or a reserve

    7 activist -- I'm not quite sure which term he used --

    8 but if somebody is active duty, he is not a reservist;

    9 if he is a reservist, he cannot be an active duty,

    10 because one notion excludes the other. There may be an

    11 error in the interpretation, but otherwise I don't know

    12 how such a concept can exist of an active reservist.

    13 Let me go on. A fact that the Prosecutor

    14 relies on is that Zoran Kupreskic took an oath of

    15 allegiance to an HVO military unit at the Vitez

    16 stadium, and he draws this conclusion from a statement

    17 made by Witness JJ.

    18 The simple matter of taking an oath, Your

    19 Honours, does not make a reservist an active-duty

    20 soldier, and it is even possible for a reservist to be

    21 called up to serve for a single day, and that for that

    22 day, he has to take an oath; and then after that day,

    23 he may be discharged and become a reservist again,

    24 until he is called up to serve once more. Therefore,

    25 the act of taking an oath is no evidence at all that,

  24. 1on the 16th of April, 1993, Zoran Kupreskic was an

    2 active-duty soldier.

    3 Zoran Kupreskic is aware of this fact, and it

    4 would not damage his defence if he had said, "I was

    5 present at the oath-taking because I was invited," or

    6 he might have put it in a different way: "If I had

    7 been called up, I would have gone." Because, as I

    8 said, this fact is quite irrelevant and doesn't prove

    9 that he was active. He was not there, as he said, for

    10 the simple reason that he was among the spectators,

    11 among the audience.

    12 The only evidence that Zoran Kupreskic was

    13 among those who took an oath is a statement by Witness

    14 JJ. I shall come back to her testimony, as she was

    15 supposed to be the witness for the Defence. However,

    16 in her testimony, there is a detail that is

    17 particularly interesting, and that is that she claims

    18 that she saw Zoran Kupreskic in line on a videotape.

    19 If she saw Zoran Kupreskic on a video, then

    20 either she or someone close to her must have that

    21 videotape, and if that videotape was in accordance with

    22 what she is alleging, then the Prosecutor would have

    23 shown that videotape to the Court, and I believe the

    24 witness would have given the Prosecutor that tape. If

    25 she didn't give him that tape, then that means that she

  25. 1reviewed the tape and she must have seen that Zoran

    2 Kupreskic was not on the tape, and this would quite

    3 disprove her allegations.

    4 The Defence was in a very difficult position

    5 regarding videotapes because, from the beginning, when

    6 we started the defence, we examined the videotapes we

    7 received from the Prosecutor and (redacted)

    8 (redacted). Had it not been for the Prosecutor, then we

    9 could have relied only on the TV programme. But that's

    10 another issue; I'll come back to that later.

    11 Therefore, we tried to get hold of that

    12 videotape, but we haven't managed to do so. But we're

    13 convinced that on that tape, Zoran Kupreskic is not

    14 shown in line. If we manage to get hold of it, we will

    15 show it to Your Honours.

    16 Furthermore, the Prosecutor relies on Witness

    17 JJ, who said that she knew that Zoran Kupreskic went to

    18 the front against the Serbs, and he also relies on the

    19 statement of Abdulah Ahmic, who said that he went to

    20 the front in Busovaca. Well, he couldn't have gone to

    21 both fronts at the same time, so one statement

    22 obviously contradicts the other. However, Abdulah

    23 Ahmic says what he really knows, and JJ what she

    24 doesn't know, from direct observation.

    25 That Zoran Kupreskic did not go to the front

  26. 1is best seen from the fact that he was working

    2 throughout that time. He had to work, because he was

    3 working on the maintenance of machines, and unless

    4 machines are maintained properly in a factory of

    5 dynamite and explosives, then there can be no proper

    6 production, nor can security of the personnel be

    7 ensured in the factory, because various accidents could

    8 occur as a result of faulty equipment.

    9 That Zoran Kupreskic was constantly employed

    10 follows not only from his testimony but also from the

    11 testimony of witness Ivan Taraba, who said that he

    12 worked in the department of maintenance and that he had

    13 one intermission of three weeks in June 1992, which is

    14 a period not covered by the indictment, when nobody

    15 even dreamt that a Croat or Muslim conflict would break

    16 out.

    17 As for the lineup at the stadium and the

    18 absence of Zoran Kupreskic from work, it is interesting

    19 to note that not a single witness called by the

    20 Prosecution could confirm the fact that Zoran Kupreskic

    21 was either absent from work or was present in the

    22 lineup.

    23 An important element of the Prosecutor's

    24 submissions that Zoran Kupreskic was an active

    25 reservist of the HVO is the list of members for 1992,

  27. 1covering a period from 1992 to 1996, and we should like

    2 to draw attention to the following:

    3 Regarding the dates, regarding the evaluation

    4 of certain documents, rather, I beg your pardon, the

    5 date when those documents were issued is important. If

    6 we look at this list that the Prosecutor is relying on,

    7 then we see that the list was compiled subsequently,

    8 after the end of the war, that the data entered are

    9 incorrect. We don't need to question witnesses or

    10 Zoran Kupreskic or any other witnesses, but it is

    11 sufficient to compare this document with documents

    12 issued at the time the content of the document is

    13 referring to.

    14 Thus, for instance, in the brief, you have a

    15 document on the discharge of Zoran Kupreskic -- and I

    16 refer to that exhibit in my brief, so I'm not going to

    17 mention the exhibit number -- and from this document,

    18 it is evident that he was not demobilised, as stated in

    19 the Prosecutor's document, but much earlier.

    20 Furthermore, the time of the beginning of his

    21 active involvement in the HVO, active involvement in

    22 the sense I understand it, is clearly stated in

    23 document P335, when the names of persons who were

    24 mobilised from the 16th of April to the 28th of April,

    25 1993 are given. It is clearly stated there that Zoran

  28. 1Kupreskic was among the people who were mobilised in

    2 that time frame, so they could not have been mobilised

    3 on the 8th of April.

    4 So as to avoid any mistakes, we should like

    5 to underline that a person who, once he becomes an

    6 active soldier, is no longer remobilised; it is only

    7 civilians who are mobilised and not active military

    8 men.

    9 The witnesses who testified on this issue

    10 explain that the motive for incorrect data was to

    11 obtain certain benefits in the form of shares, with

    12 which it was possible to purchase dwellings; at least

    13 that was the idea. So the Croatian side did its best

    14 to extend the period of time as much as possible so

    15 that Croats would get as much material property on the

    16 basis of those shares as possible.

    17 However, I'm not referring only to the

    18 statements of Defence witnesses. I can also mention

    19 Prosecution Witness II, as a Muslim and a member of the

    20 Muslim army, alleges that similar things were applied

    21 on the Muslim side. So that the dates on the list for

    22 shares do not coincide with the real dates of

    23 participation in the army.

    24 The Prosecutor devotes attention to the

    25 question of the home guard regiment, and he said that

  29. 1the 92nd Home Guard Regiment existed at the time of the

    2 outbreak of the conflict, on the 16th of April, 1993,

    3 and he relies on the Official Gazette, ordering the

    4 formation of home guard units, and an act in March 1993

    5 appointing the provisional command of the home guard

    6 regiment.

    7 Your Honours, the evidence presented by the

    8 Prosecution as evidence of the existence of a home

    9 guard unit are accurate on paper, but in reality are

    10 dead letter on paper, as were many other things in the

    11 territory of Bosnia-Herzegovina.

    12 In the first place, if, in mid-March, the

    13 provisional command of the home guard regiment was

    14 appointed, it is not possible to organise such a

    15 regiment within a month, to make it a proper unit with

    16 officers, non-commissioned officers, headquarters,

    17 staffs, et cetera.

    18 Furthermore, if a home guard regiment had

    19 existed, and that is a unit of some strength, then that

    20 unit, on the 16th of April, would have received orders

    21 to do something; it would not have been sleeping in

    22 their beds. But Colonel Blaskic would have, in his

    23 orders which you have in the brief and which were

    24 issued from the 15th of March, in the afternoon, until

    25 the 16th of April, at 1.30, would have conveyed a part

  30. 1of the combat duties to that home guard regiment if it

    2 had existed. If it had been capable of offensive

    3 actions, then it would have been entrusted -- if it had

    4 not been capable of offensive actions, then it would

    5 have been given defensive actions to protect a

    6 particular village or a particular area.

    7 However, in Colonel Blaskic's commands,

    8 issued to all military units at his disposal, to even

    9 independent companies, such as military police

    10 companies, no mention is made of a home guard regiment,

    11 and this fact that the home guard regiment did not

    12 receive any kind of assignment is best proof that it

    13 did not exist. Furthermore, Your Honours, if a home

    14 guard regiment had existed, then the mobilised

    15 personnel would not have been assigned to the Vitez

    16 Brigade but to the home guard regiment.

    17 However, according to the report of the

    18 Defence Department in Novi Travnik, it can clearly be

    19 seen that mobilised personnel were assigned to the

    20 Vitez Brigade. So if such personnel were mobilised to

    21 the Vitez Brigade, surely there could not have been a

    22 home guard unit. And there were allegedly a

    23 provisional command who were killed as members of the

    24 Vitez Brigade. So that is all I have to say regarding

    25 the home guard unit.

  31. 1As far as the events of the 20th of October

    2 are concerned, in his closing argument the Prosecutor,

    3 as I have said, retraced his steps, and I have

    4 explained why. And it would be interesting for us to

    5 focus on the participation of Zoran Kupreskic in the

    6 negotiations on return -- on the return of people to

    7 their homes.

    8 First of all, he himself explained what he

    9 did and what his function was, rather, that he was a

    10 clerk. The Prosecutor did not disprove this

    11 allegation, nor did he try to disprove it through

    12 Witness Fuad Berbic, who he had at hand. And

    13 therefore, Your Honours, I believe that you will accept

    14 what Zoran Kupreskic himself said.

    15 When evaluating his testimony, please bear in

    16 mind that both he and his brother were refugees from

    17 Ahmici in connection with the events of the 20th of

    18 October, and that it was in his personal interest for

    19 the situation in the village to be brought back to

    20 normal so that both he and his brother, with their

    21 families, could return home.

    22 After all, he did go home with his brother

    23 when the Muslims returned home. So that is the best

    24 sign that all he did in the course of those

    25 negotiations, he did in good faith.

  32. 1As for the demand to the Muslims to surrender

    2 their weapons, which the Prosecutor highlighted in his

    3 closing arguments, Your Honours, you have had occasion

    4 to hear that such a demand was made; that some did

    5 surrender their weapons, but the majority did not; that

    6 afterwards they went for exercises armed; that they had

    7 arms on them on the 16th of April; and that Zoran

    8 Kupreskic, who saw them armed, never took any steps to

    9 seize those arms.

    10 Something that I was particularly surprised

    11 by in the closing arguments of the Prosecutor was the

    12 question of personal responsibility for the agreement

    13 reached between the two parties. This position

    14 regarding personal responsibility, when it is not a

    15 personal contract, never existed. And it seems to me

    16 that the Prosecution is trying to engage in some kind

    17 of an experiment for the area of Bosnia-Herzegovina,

    18 which has not succeeded anywhere.

    19 For instance, if we were to accept the

    20 Prosecutor's position that an interstate agreement,

    21 which may be signed by Peter and Paul as the government

    22 representatives, if that government were to lose its

    23 mandate, and if Peter were no longer Prime Minister,

    24 but somebody else, then the Prosecutor from this case

    25 would call Peter to account as to why he is not

  33. 1respecting that agreement.

    2 So I think that such a position on the part

    3 of the Prosecutor is quite unacceptable and is not

    4 applied anywhere in the world. We now have the

    5 contract on anti-ballistic missiles, for instance, so I

    6 think there is no need to dwell on this point.

    7 Furthermore, when, on the 20th of October --

    8 or rather, the 21st of October, that agreement was

    9 being drafted, it never even occurred to anyone as to

    10 what would happen on the 16th of April, because in

    11 those days, in October, one would have to be a sorcerer

    12 to guess what would happen in April. I think even the

    13 warlords didn't know that that would happen, not to

    14 mention Zoran Kupreskic, a villager in a border area

    15 with the Muslims. So therefore such attachment of

    16 personal responsibility is absolutely out of the

    17 question.

    18 Furthermore, if we say that there was an

    19 agreement between two sides, then the agreement as a

    20 whole should be observed. Not a single letter was

    21 implemented, for instance, that all the Muslims should

    22 surrender their weapons. This is admitted by the

    23 Muslims themselves.

    24 Then there was no provision to form a joint

    25 military -- was not respected to form a joint military

  34. 1unit. Then also joint checkpoints at the road leading

    2 to Ahmici was also not implemented.

    3 And after all, Zoran Kupreskic was not a

    4 person writing lists of home -- of village guards, so

    5 he cannot be expected to have had any influence

    6 regarding the implementation of commitments regarding

    7 the protection of the Muslims of Ahmici.

    8 From the Defence of Zoran Kupreskic,

    9 confirmed by Witness Vidovic, it is clear that at the

    10 end of January or the beginning of February, the duty

    11 of coordinator of village guards was handed over to

    12 Dragan Vidovic; therefore, he no longer had absolutely

    13 any influence on the events, not even with respect to

    14 village guards.

    15 As for the time when he was the coordinator

    16 of those guards, there were no incidents. But village

    17 guards did not provoke anything. These things were

    18 provoked by outside units, which is something the

    19 Prosecutor recognises in his closing argument when he

    20 said who carried out which acts. He knows exactly

    21 which unit was in charge of protecting the road and

    22 which unit reported to General Blaskic on his

    23 operations in the area of Ahmici.

    24 I am not going to go from one witness to

    25 another, because I see that my time seems to be running

  35. 1up. And I think that we have to exercise discipline in

    2 order to leave enough time for our colleagues. So I'll

    3 try to shorten my part.

    4 I would like to dwell a bit on the question

    5 of Zoran Kupreskic, commander. This thesis about him

    6 being a commander is one that was also propounded by

    7 the Prosecutor, which is also partly based on Witness

    8 JJ's testimony.

    9 When speaking of commanders, and the

    10 Prosecutor says that Zoran Kupreskic was a commander,

    11 we should define first and foremost what a commander

    12 is. One can be a commander of a fire brigade, one can

    13 be a commander of a civil defence unit, of a police

    14 station, a prison, a work brigade, but also in the army

    15 as well.

    16 If we are to proceed from command within an

    17 army, then one can be a commander at various levels; of

    18 a squad, of a platoon, of a company, et cetera, going

    19 all the way up to an army. So the very fact that

    20 someone is a commander, without saying a commander of

    21 what, is meaningless.

    22 Zoran Kupreskic could not have been the

    23 commander of a military unit, not even of the smallest

    24 one. And this is shown by the fact that he was not in

    25 the army until the 16th of April, which is what I

  36. 1already talked about. That is quite obvious from the

    2 document that spoke about persons who were mobilised in

    3 the period between the 16th of April and later dates.

    4 Now, since it is a question of Witness JJ's

    5 testimony altogether, we have to point out that her

    6 statement in that part is a result of her concentration

    7 on her very own problems, and she had quite a few of

    8 them at the time. And we are not objecting to that,

    9 because she really was burdened with a great many

    10 problems.

    11 However, the fact that she was burdened by so

    12 many problems resulted in the fact that she did not

    13 exactly remember what the ID said and in which order

    14 and how. We have made every effort to obtain this

    15 document, this ID, but we haven't managed to do so, so

    16 far, but we hope that we will manage to do so after

    17 all.

    18 The witness does not have a very good memory,

    19 because she says that she can't even remember whether

    20 there was a photograph on the ID or not, and there is a

    21 photograph on every ID. She does not recall any

    22 photograph on the ID, and a document without a

    23 photograph cannot really be an ID. And this document

    24 is claimed to have been an ID.

    25 In addition to that, she said that next to

  37. 1Zoran Kupreskic's name it said "COMMANDER," in block

    2 letters. And that is quite incredible. As I said,

    3 there are different levels of command. So if the

    4 bearer of an ID was supposed to be identified as a

    5 person who does exercise command duties, then one had

    6 to state a commander of what.

    7 It is possible that Witness JJ got a bit

    8 confused with regard to what the ID said. She got

    9 things confused because she linked the word "commander"

    10 with the name of Zoran Kupreskic. And the word

    11 "commander" was in the lower bottom part where the

    12 name of the person who issued the ID is noted. Then it

    13 says commander so-and-so and then the signature of the

    14 person who is authorised to issue such an ID. And then

    15 there is also a seal of the relevant institution that

    16 issued the ID next to the name and title of that

    17 person.

    18 So we still claim that the word "commander"

    19 was not written next to Zoran Kupreskic's name. If it

    20 were put next to a name and surname, then that kind of

    21 an ID would have been dangerous for the bearer of that

    22 ID. Whoever is vaguely familiar with the customs of

    23 war knows that in dangerous situations command posts

    24 and command duties are concealed for persons who are in

    25 dangerous situations. And to state in an ID that

  38. 1someone is a commander would seriously jeopardise his

    2 position if he were to be taken prisoner by the other

    3 side, because then the other side would know

    4 immediately who they have in their hands. And

    5 everybody tries to avoid that kind of a situation.

    6 In addition to that, Your Honours, Zoran

    7 Kupreskic was no commander in the time that the

    8 Prosecutor mentioned, and that is proven by yet another

    9 document that was shown to us by the Prosecutor. That

    10 was the recommendation issued in the autumn of 1993, to

    11 have Zoran Kupreskic promoted to officer's rank. Had

    12 Zoran Kupreskic been at the battlefield at the front

    13 before that? Had he been among any persons who passed

    14 any kind of military or civilian decisions? Had he

    15 been the commander of anything, even of a villager's

    16 cooperative? Then in the recommendation for his

    17 promotion to officer's rank, that fact would have been

    18 highlighted; that would have been an essential element

    19 for having what is being proposed materialised, and

    20 that is for him to become an officer.

    21 This is document D21/1, and that is the

    22 document we got from the Prosecutor, and it shows quite

    23 clearly that at the very beginning he was not a

    24 supporter of the prevailing politics of that time at

    25 all; he joined in only later, when the war between the

  39. 1Croats and the Muslims was already raging, and there

    2 was no other option for him but to join the Croat side

    3 in the war.

    4 So through that document -- well, I don't

    5 know. Perhaps this is a question of procedure. But in

    6 our legal system, the Prosecutor sometimes says a kind

    7 word or two about the accused as well, but anyway.

    8 As for the substance of the conversation that

    9 Zoran Kupreskic had with Witness JJ, she got some of

    10 the things mentioned confused in that respect as well.

    11 She states, for example, that Zoran Kupreskic said that

    12 he was some kind of a commander and the like, but also

    13 that he said that he was assigning people to guard duty

    14 in the part of the village where he lived.

    15 Since you have the opportunity of seeing and

    16 hearing Witness JJ, you managed to see for yourselves

    17 that she says a lot on the basis of what she deduces on

    18 her own, rather than speaking about facts.

    19 When she was asked why she thought he was a

    20 commander, she said that she thought so because he was

    21 making lists, assigning people to guard duty. However,

    22 what is important is that she confirmed that Zoran told

    23 her that his -- that he managed to get rid of that

    24 duty; that is to say, making lists of people who would

    25 go on guard duty, that he managed to get rid of that a

  40. 1lot earlier.

    2 So in case of witnesses, one should draw a

    3 distinction between what they know and what they

    4 deduce.

    5 However, in the case of this particular

    6 witness, there are things that are related to her

    7 deduction and conclusions as well. She says, for

    8 example, that Zoran Kupreskic took part in some kind of

    9 negotiations a month before the 16th of April in terms

    10 of the removal of roadblocks that the Muslims put.

    11 Because Dario Kordic was supposed to come to Ahmici.

    12 No one, not a single witness from Ahmici,

    13 spoke of Dario Kordic's coming to Ahmici. So obviously

    14 again it's a question of her own conclusions, because

    15 somebody from Ahmici would have had to know about this;

    16 it would not have only been the lone statement of

    17 Witness JJ. There are other such examples.

    18 For example, the witness says that Zoran told

    19 her that he came -- that he went back to the trenches.

    20 However, no one, absolutely no one, either from the

    21 Croat or the Muslim side, confirmed that part of her

    22 statement, that in Ahmici there were any kind of

    23 trenches.

    24 As for all the Defence witnesses -- I'm

    25 sorry, Prosecution witnesses, they mentioned this for

  41. 1the first time in connection with the 18th of April,

    2 when they were brought to the front line in Pirici. So

    3 although we believe Witness JJ to a large extent, there

    4 are parts that do not fit into the true picture of

    5 events.

    6 As for the development of relations between

    7 Croats and Muslims, I wouldn't want to dwell on that

    8 specifically. However, it would be a good thing to

    9 mention here the difference between the Territorial

    10 Defence on the one hand and village guards on the

    11 other.

    12 The Prosecutor's approach to this problem is

    13 quite interesting. Everything that we had claimed that

    14 pertained to village guards, the Prosecutor says in

    15 respect of the Territorial Defence.

    16 In his closing arguments, although the

    17 Prosecutor's witness, the expert witness, Asim

    18 Dzambasovic, showed that the Territorial Defence was

    19 organised as a military structure with a general staff

    20 in Sarajevo, with the command centres of corps, with

    21 command posts in Vitez itself and with units that were

    22 organised according to the territorial principle, and

    23 the Muslim population was mobilised at that time, which

    24 can be seen from the order on mobilisation, which is

    25 also among the Defence exhibits.

  42. 1As opposed to the Territorial Defence, which

    2 is organised from a military point of view, with

    3 commanders, with military discipline, et cetera, the

    4 members of the village guards were those who guarded

    5 their homes with rifles and who were outside any kind

    6 of structures or chains of commands and were mobilised

    7 only after the war started, which can be seen from the

    8 list of mobilised persons that was mentioned so many

    9 times. So I don't really want to go back to all of

    10 that once again.

    11 Once again, this supports our thesis, that is

    12 to say, what the -- rather than what the Prosecutor has

    13 said. Asim Dzambasovic speaks in favour of what we

    14 have been proposing. I'm so glad to be able to invoke

    15 his statement on so many occasions because, indeed, he

    16 was impartial and objective.

    17 Now, for another thing, whether the Croats

    18 from Ahmici knew what would happen on the 16th of

    19 April, including Zoran Kupreskic. Your Honours, you

    20 have seen General Blaskic's orders; you have seen where

    21 these orders came from. You saw in all these orders

    22 that there was a clause stating "Military Secret -

    23 Strictly Confidential." If those orders say "Military

    24 Secret - Strictly Confidential," that means that the

    25 broad population cannot be aware of these orders. The

  43. 1fact that the population was not aware of this can be

    2 seen from various examples.

    3 For example, Ivica Kupreskic's wife came on

    4 the 15th of April to Ahmici, and on the 14th of April,

    5 she landed in Split, her plane from Germany landed in

    6 Split. She certainly would not have returned to Ahmici

    7 one day before the war started had she known that the

    8 war was about to break out.

    9 The same goes for the brother of Jozo

    10 Alilovic, whose name is Tomo Alilovic; he came from

    11 Germany too. When the war began, he was hiding,

    12 together with that other witness who came to Jozo

    13 Alilovic's, and he was afraid that he would be

    14 mobilised.

    15 Finally, the brother of Milutin Vidovic would

    16 not have spent the night between the 15th and 16th of

    17 April in Stari Vitez, and he would never return from

    18 there alive.

    19 As for the way in which this is being proven

    20 -- that is to say, that on the 15th of April, the

    21 Croats knew what would happen on the 16th of April --

    22 the Prosecutor uses witness statements. Some of these

    23 witnesses show certain things superficially and only in

    24 part.

    25 Witness F is a case in point, and he was also

  44. 1mentioned by the Prosecutor in his closing argument;

    2 namely, Witness F mentioned that Ivica Kupreskic, on

    3 the 15th of April, 1993, in an automobile that was a

    4 Mercedes, which seems to be very important -- not a

    5 Fiat, heaven forbid -- and he was driving from his home

    6 to another place. And now he would have seen that

    7 Ivica Kupreskic had evacuated his wife and child

    8 because he knew that on the 16th of April there would

    9 be a war. His wife had come back from Germany, and he

    10 drove his wife to see her parents, to visit her

    11 mother. Then they all went back home and then all

    12 their neighbours came to say hello to her and to bid

    13 her welcome, and this was confirmed by all these

    14 neighbours.

    15 Witness F does not take this into account at

    16 all, and from what I can see, the Prosecutor doesn't

    17 take this into account either, and he only quotes

    18 Witness F in order to prove that Croats evacuated their

    19 women and children a day earlier. So that's quite

    20 nice, to quote such witnesses who say that, on the 15th

    21 of April, Croat children did not go to school. The

    22 Prosecution witness is that kind of a witness too, and

    23 he omits to mention that Witness H, who went to school

    24 herself, said the exact opposite; that is to say that

    25 all the Croat children came to school on the 15th of

  45. 1April, as usual.

    2 Therefore, we say that they did not know, nor

    3 could they have known, on the 15th of April, what would

    4 happen on the 16th of April. We say that only when he

    5 was awakened on the 16th of April did Zoran Kupreskic

    6 learn that something was happening; only then did

    7 he find out what he was told, and that was that

    8 families should be evacuated because a Muslim attack

    9 was imminent.

    10 Your Honours, in my final brief, I refer to

    11 events preceding the 15th, including the tragic event

    12 in Dusina, which was mentioned, quite properly, by the

    13 Prosecutor, where Mujahedin, not Muslim neighbours,

    14 killed a large number of Croats, and that in the minds

    15 of persons who knew about this, this was corroboration

    16 of the information that a Muslim attack was imminent.

    17 If you look at the orders issued by Colonel

    18 Blaskic, you will see that they were all issued on the

    19 basis of information he had received that a Muslim

    20 attack was imminent. I am not going into whether this

    21 information was correct or incorrect. It may have been

    22 incorrect; it may have been designed to prompt Colonel

    23 Blaskic to prepare his troops for action. But Colonel

    24 Blaskic had wider sources of information available to

    25 him, and he believed it, so why would Zoran Kupreskic

  46. 1not believe it, who had only one source of information

    2 which told him to evacuate his wife and children

    3 because there was an imminent Mujahedin attack?

    4 You should also realise that what the

    5 Prosecutor claims is absurd, that Zoran Kupreskic was

    6 to tell the Muslims that a Muslim attack against the

    7 Croats was about to happen. Because what kind of

    8 threat was there against the Muslims to make Zoran

    9 Kupreskic tell his Muslim neighbours that Muslims were

    10 about to attack the Croats? I have never heard

    11 anything so absurd in my life, and I believe you will

    12 not take this into consideration, because, of course,

    13 you are not going to tell the other side that they are

    14 about to attack you. So much for what the Prosecutor

    15 says about this.

    16 As regards the information people got, Zoran

    17 Kupreskic told you, in his defence, that the

    18 information broadcast in the media was contradictory

    19 because the Croats always said that it was the Muslims

    20 who were attacking, and vice versa, and the persons who

    21 listened to all this were confused. Someone listening

    22 to all this could not know what the truth actually was,

    23 and, in fact, we do not know certain things even

    24 today.

    25 JUDGE CASSESE: I'm afraid, Counsel Radovic,

  47. 1your time is up; you were allocated an hour and a

    2 half. It's 10.30. We have now to take a break, a

    3 20-minute break, and then it will be the turn of

    4 Counsel Slokovic-Glumac.

    5 MR. RADOVIC: Part of what I have said refers

    6 to my colleague also. I would need at least 20 minutes

    7 more.

    8 JUDGE CASSESE: Yes, but this will be taken,

    9 the 20 minutes, from the time allocated to Counsel

    10 Slokovic-Glumac. If she's agreeable, that's all

    11 right. We agreed that each Defence counsel, except for

    12 the Defence counsel for Dragan Papic, would be

    13 allocated an hour and a half, and that's our decision.

    14 So if Counsel Slokovic-Glumac is prepared to give you

    15 20 minutes as a gift, why not.

    16 MR. RADOVIC: We shall talk about this during

    17 the break.

    18 JUDGE CASSESE: All right. A 20-minute

    19 break.

    20 --- Recess taken at 10.30 a.m.

    21 --- On resuming at 10.48 a.m.

    22 JUDGE CASSESE: Counsel Radovic.

    23 MR. RADOVIC: My colleague has given me ten

    24 minutes, so I will try to make the best use of them.

    25 I will only speak about the Witness JJ,

  48. 1because she has been my favourite witness ever since I

    2 entered this case.

    3 This witness also shows the kind of problems

    4 the Defence came up against when trying to obtain

    5 witnesses not belonging to the same ethnic background.

    6 The first time I arrived in Vitez, I heard that JJ had

    7 been on friendly terms with Zoran Kupreskic, and there

    8 was no mention of their discussing what took place in

    9 Ahmici but only that she should confirm that Zoran

    10 Kupreskic helped her and her family after the 16th of

    11 April.

    12 Since I did not know her personally, and

    13 since there was a danger that my direct contact with

    14 her might be misunderstood, I made use of the fact that

    15 our witness, Ljiljana Sapina, was on friendly terms

    16 with her. So I sought contact with her through this

    17 witness, either that she should come to Vitez or that

    18 she should send us a written statement; there was even

    19 the possibility of Ms. Slokovic-Glumac and I going to

    20 Zenica and taking a statement from her there, in any

    21 premises she chose, either at the police station or the

    22 court or on the premises of a representative of the

    23 OTP. To begin with, she agreed. You saw the letter

    24 that the witness Ljiljana Sapina received, which is an

    25 exhibit in this case.

  49. 1However, the fact that she was subjected to

    2 various kinds of pressure is evident from her

    3 testimony. Somebody heard that she was to testify on

    4 behalf of the Defence, and she was told that this would

    5 not be wise and that it might have bad consequences for

    6 her.

    7 In the end, the witness told her friends that

    8 she had been required to testify and that she would

    9 never have consented to appear as a Defence witness

    10 otherwise, and then she started saying all kinds of

    11 nasty things about Zoran Kupreskic. We are very

    12 grateful to the Prosecutor for bringing her here as a

    13 witness, because he was successful in something that we

    14 had not managed to do. And I would like to ask you to

    15 bear this in mind when evaluating her testimony. And

    16 what part of her testimony is acceptable and what part

    17 is not is something I have already talked about.

    18 This is as far as the facts are concerned.

    19 Then I will not go into legal issues now.

    20 The final proposal of Zoran Kupreskic is that

    21 he should be fully acquitted. Since we are putting

    22 this proposal, we will not talk about mitigating

    23 circumstances. However, regardless of what your

    24 judgement is, Your Honours, we would like you to

    25 release Zoran Kupreskic on a temporary basis, because

  50. 1everything we have said so far in favour of his being

    2 released from detention is justified.

    3 In the meantime we have obtained guarantees

    4 from the Croatian component of the Federation of

    5 Bosnia-Herzegovina that should they not appear before

    6 the Court of their own accord, they will be handed over

    7 to SFOR.

    8 However, if they gave themselves up, if they

    9 came to The Hague of their own accord, even though they

    10 are far from any decision-making circles, there is no

    11 reason to suppose that they will not come here to hear

    12 their sentence. They have been separated from their

    13 families for two Christmases, two New Year holidays,

    14 and this is very hard on them because people in that

    15 part of the world are very attached to their families,

    16 and because of this fact they have been suffering for

    17 two years.

    18 We admit that these sufferings are far less

    19 than the sufferings of the Muslims who suffered in

    20 Ahmici and their families, but because they are not

    21 responsible for these sufferings, there is no reason

    22 not to release then.

    23 All the more so, as the President of the

    24 Court, of the Tribunal, according to the news we heard

    25 on Croatian radio when submitting her report to the

  51. 1security council about the work of the Tribunal,

    2 expressly stated that she would support the temporary

    3 release of persons who come to -- who give themselves

    4 up voluntarily and appear before the Court voluntarily.

    5 I thank you for this extension and I now give

    6 the floor to my colleague. I have not exceeded the ten

    7 minutes that she gave me.

    8 JUDGE CASSESE: Thank you, Counsel

    9 Slokovic-Glumac.

    10 MS. SLOKOVIC-GLUMAC: [Interpretation] Your

    11 Honours, to begin with, with regard to the Prosecutor's

    12 statements yesterday, I have a few comments.

    13 He said that Zeljo Livancic was probably a

    14 member of the military police, and I would like to say

    15 that this is incorrect. And this is evident from

    16 Exhibit 35353. Zeljo Livancic is not on the list of

    17 persons killed as members of the military police. He

    18 was a member of the Vitez Brigade.

    19 Furthermore, the Prosecutor said that Dragan

    20 Vidovic transmitted orders and that he said that

    21 Zeljo Livancic transmitted orders at the civil defence

    22 meeting in the night of the 16th of April. And this is

    23 also incorrect.

    24 He also said that the Jokers could not have

    25 attacked Ahmici on their own. This is not what we are

  52. 1saying. We consider that the military police

    2 participated in the attack on Ahmici, so we are not

    3 talking about a Joker squad consisting of 30 or 40

    4 people, but of the whole battalion, the 4th Battalion

    5 of the military police.

    6 And this follows from the testimony we heard

    7 before this Tribunal, according to which Mirjan Santic

    8 was a member of the 2nd Platoon of the military police,

    9 which was the traffic police. Apart from this, to a

    10 direct question of the President of the Trial Chamber,

    11 the Prosecutor said he did not know where Mirjan Santic

    12 was killed.

    13 We submitted to this Court Exhibit D25/1,

    14 from which it is evident that Mirjan Santic was killed

    15 in Ahmici on the 16th of April during the MOS attack on

    16 the defence line.

    17 We also submitted an extract from the record

    18 of death for Zlatko Ivankovic, who was killed on the

    19 16th of April, 1993 in Ahmici as a member of the

    20 military police.

    21 We submitted D89/2, which is an extract from

    22 the record of deaths for Ivica Zepackic, who was also

    23 killed on that day as a member of the military police.

    24 Zeljko Arapovic and Slavko Rajkovic were also killed on

    25 the same day as members of the military police.

  53. 1So this is our response to the Prosecutor's

    2 claim that only villagers of Ahmici were killed on that

    3 day, which is not true.

    4 As regards the status of Mirjan Kupreskic,

    5 who, according to the Prosecution, was a soldier of the

    6 HVO. My colleague, Mr. Radovic, referred to this on a

    7 number of occasions. He was a member of the village

    8 guard, and there is nothing other than this in the

    9 file. He held a job until the outbreak of the conflict

    10 on the 15th of April, 1993, and P335 shows that Mirjan

    11 Kupreskic was mobilised in the period between the 16th

    12 and the 28th of April.

    13 Furthermore, Mirjan Kupreskic was seen

    14 carrying weapons in Ahmici by one single person before

    15 the conflict broke out, and this is a person who

    16 testified before this Tribunal under the pseudonym Z.

    17 And he said that he saw him on the roadblock which was

    18 set up at the entrance to Ahmici after the first

    19 conflict.

    20 So no other person says that they saw Mirjan

    21 Kupreskic with weapons before the conflict broke out.

    22 The roadblock was set up for only one reason,

    23 and this was at the orders of the Muslim and the

    24 Croatian political leadership, and it was a joint

    25 roadblock.

  54. 1Furthermore, the Prosecutor said that

    2 numerous witnesses saw Mirjan Kupreskic in uniform

    3 carrying weapons. We have heard only one witness

    4 testify to this -- or, rather, two witnesses, S and X,

    5 who said that they saw him in uniform on several

    6 occasions when he went to keep guard in the village

    7 guards.

    8 Now, it follows from the testimony of members

    9 of the Vitez Brigade that there were no members of the

    10 Vitez Brigade in Ahmici and Pirici on the 14th of

    11 April. From the list of HVO members in Novi Travnik

    12 dated 22nd February 1993, it is evident that Mirjan

    13 Kupreskic was not on this list.

    14 The Prosecutor in his final letter claims

    15 that the village guards were linked up among themselves

    16 horizontally, and that they were vertically linked to

    17 the HVO structure.

    18 As proof that this is so, the Prosecutor uses

    19 the thesis that the roadblock was set up on the 20th of

    20 October, 1992, as testified to by Witness B, who says

    21 that Dragan Cerkez set up this roadblock. This was

    22 wartime conflict. It was an exceptional situation; it

    23 was not the regular state of affairs.

    24 I apologise.

    25 The second matter referred to by the

  55. 1Prosecutor, when he wants to show the vertical

    2 connection with what the HVO is, that the guards in

    3 Donja Rovna were organised in a different way, and

    4 Zoran Santic spoke of this. They were to guard Radak's

    5 bridge from the HVO in Busovaca before the 16th of

    6 April. However, this is not proof of a vertical

    7 connection. It is proof that in that part the village

    8 guards were organised in a different way for a single

    9 reason, and that was that the war in Busovaca had been

    10 going on for two months.

    11 So the village guards were already well

    12 established, and we know that in Busovaca the war

    13 started on the 25th of January.

    14 The Prosecutor says that it is very strange

    15 that the Kupreskic brothers did not have military

    16 booklets, because he considers that they would contain

    17 important data. However, these booklets do not have

    18 the significance that the Prosecutor attaches to them,

    19 first of all, because the administration lagged behind

    20 the actual situation to a great extent, and the

    21 military booklet was a document used in times of peace

    22 to enter data about a soldier, and of course it could

    23 not be used during military operations.

    24 I should also like to say that not a single

    25 witness at this trial said that he had seen Mirjan

  56. 1Kupreskic going to the front line, attending military

    2 exercises, or undertaking any kind of military action.

    3 So all the allegations of the Prosecutor can be reduced

    4 to the testimony of two witnesses.

    5 With respect to the factual allegations made

    6 by the Prosecutor regarding persecution, colleague

    7 Radovic has already referred to this, but I should like

    8 to say in addition that the allegation of the

    9 Prosecutor that Mirjan Kupreskic had organised HVO

    10 soldiers, weapons and ammunition in Ahmici and Santici

    11 is also incorrect.

    12 Several witnesses, like Witness V, said that

    13 he saw five or six soldiers at the crossroads in front

    14 of the Kupreskic houses the day before the attack. He

    15 didn't say that he saw among them either Zoran or

    16 Mirjan Kupreskic.

    17 Also, the allegation of the Prosecutor has

    18 not been proven; that is that Mirjan Kupreskic had

    19 evacuated the Bosnian Croats the night before. All he

    20 did was to take his family away in the morning, deep

    21 within the Croatian part of Santici, where they were

    22 partially protected, for the simple reason that the

    23 house of his father was on the borderline between the

    24 Croatian and Muslim part of the village.

    25 As for receiving reports that the Muslims

  57. 1were about to attack, the Kupreskics had earlier on had

    2 problems and had had to leave their houses, and so they

    3 accepted this report without thinking about it, and

    4 sought to take their families to a safer place.

    5 Mirjan Kupreskic received the report about

    6 the attack early in the morning on the 16th of April.

    7 The only information he had, had to do with the attack

    8 of Mujahedins, that is, the Muslims. As this was a

    9 Muslim attack, naturally their attack could only have

    10 focused on the Croatian population.

    11 Another question that arises is whether the

    12 information they received was true. If we look at the

    13 orders of Colonel Blaskic and compare them with the

    14 report which has been tendered as D16/2 --

    15 Mr. President, I don't know whether perhaps we should

    16 go into private session for me to read the first

    17 paragraph only of this order.

    18 JUDGE CASSESE: Yes.

    19 [Private session]

    20 (redacted)

    21 (redacted)

    22 (redacted)

    23 (redacted)

    24 (redacted)

    25 (redacted)

  58. 1(redacted)

    2 (redacted)

    3 (redacted)

    4 (redacted)

    5 (redacted)

    6 (redacted)

    7 (redacted)

    8 (redacted)

    9 (redacted)

    10 (redacted)

    11 (redacted)

    12 (redacted)

    13 (redacted)

    14 (redacted)

    15 (redacted)

    16 (redacted)

    17 (redacted)

    18 (redacted)

    19 (redacted)

    20 (redacted)

    21 [Open session]

    22 MS. SLOKOVIC-GLUMAC: [Interpretation]

    23 Therefore, we submit that no attack was ordered and

    24 that all General Blaskic's orders do not mention

    25 anywhere any order to attack Ahmici. This report shows

  59. 1what the results of that were.

    2 The Prosecutor says that the Croats actually

    3 had no reason to believe this report that the Muslims

    4 were about to attack, firstly, because allegedly there

    5 were no Mujahedins; then also because Croatia was on

    6 the offensive and as Ahmici was a Muslim village.

    7 Those allegations do not stand.

    8 In the first place, there were Mujahedins,

    9 and we have heard testimony about their operations on a

    10 number of occasions. Even the Muslims themselves, when

    11 they spoke about extremist segments of the Muslim army,

    12 used that term.

    13 Secondly, Croatia was not in an offensive of

    14 any kind at the time. Croatia or, rather, the Bosnian

    15 Croats of Central Bosnia were in a position to be

    16 exposed to attacks by the Muslim army. Just before

    17 this attack there were several incidents, and this

    18 situation was extremely tense because of those

    19 incidents. Among those incidents, some are mentioned

    20 in ECMM reports, and we heard reference to some of them

    21 by witnesses.

    22 To say that Ahmici was a particular target

    23 because it was a majority minimum population, that is

    24 also not true, because there were many Muslim villages

    25 in the surroundings, some purely Muslim, and in that

  60. 1respect, Ahmici was not special in any sense.

    2 As for the defence of the accused, Mirjan and

    3 Zoran Kupreskic tell us that they spent the whole day

    4 in a depression next to their house, that they were in

    5 an area that was strategically not ideal, but it was

    6 close to the shelter where their families were, and

    7 they spent the whole day there, together with other

    8 people whom we called as Defence witnesses.

    9 The Prosecutor also submits that this was a

    10 strategically poor position and that there was no

    11 reason for them to stay there, that there was no reason

    12 for them to stay there after their families had left.

    13 In the first place, that depression may have

    14 been a poor or a good strategic position, but that is

    15 something they didn't think about. It was a place

    16 where they would seek shelter as a matter of habit, and

    17 at least they were protected from infantry weapons.

    18 Furthermore, they were able to see what was happening

    19 on the roads leading to Niko Sakic's house, where there

    20 was a shelter, and the road leading to the shelters

    21 where their families were accommodated. Furthermore,

    22 they were not far from their families. All the

    23 families were in one place, down the road leading out

    24 of the depression.

    25 The fact that they stayed on after their

  61. 1families had left for Rovna does not mean much because,

    2 actually, they just spent the night there, and then the

    3 next morning, as we know, they were mobilised and taken

    4 to Pirici. Also, the family of Zoran Kupreskic stayed

    5 in the same place, in Milutin Vidovic's house, until

    6 they were transferred to Vitez.

    7 The Prosecutor, in his closing argument,

    8 relies mostly on three witnesses. The first is Witness

    9 C, who saw Zoran and Mirjan Kupreskic on the day of the

    10 attack, that is, the 16th of April, around noon, in the

    11 Alilovic house. That witness at the time was 13 years

    12 old, and according to his allegation, that day, Zoran

    13 and Mirjan Kupreskic came with some other soldiers, and

    14 in the words of Jozo Alilovic, which he said to Witness

    15 C, they had come for a drink.

    16 In describing those events, the witness adds

    17 greenish ribbons on the sleeves of the soldiers, and

    18 these greenish ribbons were mentioned for the first

    19 time in court. Before that, they were never mentioned,

    20 and they were obviously an indication of membership in

    21 a combat unit.

    22 The witness also mixes the names of the

    23 people who were with Zoran and Mirjan Kupreskic on that

    24 day, and clearly the witness does not know Zoran and

    25 Mirjan Kupreskic. In court, first, he could not

  62. 1remember the name of Mirjan Kupreskic, and then during

    2 the identification, he mixed them up. Furthermore, a

    3 day or two before the identification, the Prosecutor

    4 had shown the witness pictures of Zoran and Mirjan

    5 Kupreskic. So we feel that this identification process

    6 is unacceptable.

    7 The allegation of the witness that he knows

    8 Zoran and Mirjan Kupreskic well, for more than eight

    9 years, is also incorrect. If he had known them for so

    10 long, surely he would not have forgotten the name of

    11 Mirjan Kupreskic, nor would he have confused their

    12 identity.

    13 The position from which this witness was

    14 viewing the scene of entry of Zoran and Mirjan

    15 Kupreskic in the house is also questionable. He says

    16 he was in another house, saying that he was in hiding,

    17 and, peeping through, he saw a group of soldiers, among

    18 whom was Zoran and Mirjan Kupreskic.

    19 The Prosecutor also said that he doesn't know

    20 the reason why Witness C would charge Zoran and Mirjan

    21 Kupreskic; however, on the 2nd of May, 1993, this

    22 witness said that Zoran Kupreskic had wounded his

    23 father on his way back from a mosque, that he had

    24 thrown a grenade at the house of Zahid Ahmet and Mirsad

    25 Ahmic, when he killed three children and Mirsad Ahmic's

  63. 1wife. So this is obviously a story the witness had

    2 heard, and he tried to fit into that story, out of his

    3 own motives, obviously motives of revenge, to include

    4 Zoran Kupreskic.

    5 Usually, when the name of Zoran Kupreskic is

    6 mentioned in these proceedings, the next name to be

    7 mentioned is Mirjan Kupreskic, and then come all the

    8 others.

    9 Jozo Alilovic was heard as a witness, and he

    10 denied that Zoran and Mirjan Kupreskic were in his

    11 house on that day. Also, this witness alleges that he

    12 saw Zoran and Mirjan Kupreskic in camouflage uniforms

    13 on that day, that their faces were clean, without any

    14 paint on them, as opposed to witnesses who are charged

    15 with crimes in other houses, who say that Zoran and

    16 Mirjan Kupreskic were wearing black uniforms on that

    17 day and that they had paint on their faces, which was

    18 either black or in different colours.

    19 Therefore, can this witness be trusted, or

    20 the other witnesses? It is up to Your Honours to

    21 judge. In any event, it is impossible, as the

    22 Prosecutor claims, that those attackers changed their

    23 clothing in the course of the day.

    24 With respect to the event in the house of

    25 Witness KL, an event referred to in Counts 2 to 12 of

  64. 1the indictment, the Prosecutor called one witness,

    2 Witness KL, who, in his testimony in court, said that

    3 on the 16th of April, 1993, in the morning, Zoran and

    4 Mirjan Kupreskic entered his house and they killed all

    5 the members of his family.

    6 The Defence denies the truthfulness of the

    7 testimony of this witness regarding the events that

    8 took place in his house and claims that Zoran and

    9 Mirjan Kupreskic were not in his house on that day, nor

    10 did they commit the crimes of which they are charged.

    11 In the first place, the Defence has received

    12 eight statements by Witness KL, and from those

    13 statements, it is evident that the witness described

    14 all critical events in one way in court and in a

    15 significantly different way in the statements. These

    16 have to do with significant aspects of the act, and,

    17 therefore, one may rightly call in question the

    18 credibility of the witness and the truthfulness of his

    19 testimony.

    20 This witness, in the first place, made a

    21 whole series of statements containing elements which

    22 are contradictory, as admitted by the Prosecutor.

    23 First, regarding the identity of the

    24 perpetrators of the act, he changed his story, first

    25 saying that they were unknown people, and ending up by

  65. 1actually accusing Zoran and Mirjan Kupreskic.

    2 Also, he changed his testimony as to why he

    3 did not immediately reveal the names of the

    4 perpetrators. He first said that he wasn't asked, then

    5 that it didn't occur to him, and finally he came out

    6 with the reason that he was afraid.

    7 Because of the differences in describing the

    8 perpetrators, he starts by saying that uniformed men,

    9 with caps on their heads, or rather black hoods with

    10 openings for the eyes, had come into his house. After

    11 repeating this statement, he ends up by saying that the

    12 perpetrators had only black paint on their faces.

    13 Apart from changing the description of the

    14 attackers, he also changes the position from which he

    15 observed the attackers. In several of his initial

    16 statements, he said he was in the next-door room, that

    17 he had opened the door ajar, and that he was peeping

    18 through; then he said that he hid behind the couch in

    19 the front room and that he was an eyewitness of the

    20 killing of his son, daughter-in-law, and children from

    21 another room.

    22 The Prosecutor said that there was mention of

    23 a sofa, but this is in another room. So this does not

    24 confirm the consistency of the witness's statement but,

    25 rather, the opposite.

  66. 1Finally, in his statement for the

    2 investigating judge and the investigator of the ICTY,

    3 and in court here, the witness said that he was in the

    4 same room in which the murders were committed.

    5 The witness also differently describes the

    6 events that occurred in that house by giving different

    7 times as to when he fell behind the couch and also

    8 giving different times as to when his son and

    9 daughter-in-law were killed and what and who he saw.

    10 Also, his statements differ as to who was shooting, who

    11 set fire to the house, and in what way the attackers

    12 had entered the house.

    13 In describing the weapon, again there are

    14 differences. Firstly, he said it was a rifle, an MGV,

    15 with a classical barrel containing the ammunition, and

    16 in court, he admits that the rifle could have been

    17 larger. But there is no larger rifle with such a

    18 classical type of barrel.

    19 Also, the Defence submits that the

    20 differences in the statements were not due to his own

    21 errors but is evidence of the fact that the witness

    22 regularly and systematically changed his testimony.

    23 The witness begins by making a statement

    24 immediately following the events, and the statements

    25 given in the first 20 or so days following the events

  67. 1are obviously the closest to the truth. At that time,

    2 he was interviewed by Zenica Television and the State

    3 Security Service, and he spoke to Witness HH in that

    4 period.

    5 The contents of those statements are

    6 identical, because the witness describes the event by

    7 saying that he was in the next-door room and he was

    8 peeping through a door that was ajar and that he rather

    9 heard, than saw, what was happening in the room. He

    10 described the attackers as HVO soldiers or, rather,

    11 persons masked with caps over their faces.

    12 After that, the witness changed his

    13 statement, and substantially so. Now he tried to put

    14 himself in the following position, that he could

    15 recognise the perpetrators of the act. He could not

    16 have recognised them from the room where he was

    17 because, as he was hiding behind the couch, he could

    18 not have seen what was going on in the room. If he was

    19 peeking through the door that was only ajar, he could

    20 not have seen what was going on in the room; he could

    21 only have seen a small fragment of the room.

    22 Then the witness changed his own position.

    23 He said that during the attack he was in the room or,

    24 rather, by the door to the room. That is how he was in

    25 a position to see the attacker as well, but at that

  68. 1point, the attacker saw him too.

    2 According to his statement, these were

    3 persons who were shooting at a baby in a cradle. Then

    4 he would have had to have been a victim of this attack

    5 too. It is illogical that all persons in that house

    6 were killed and he was the only one who survived, while

    7 being in the same room.

    8 It is for that reason that, for the first

    9 time, the witness said that when the attacker charged

    10 towards him, he fell. Since he was not even grazed by

    11 a bullet when three bursts of gunfire were shot at him,

    12 he must have had a good shelter, and the shelter was

    13 the couch, and that is how the person, the attacker who

    14 was shooting, missed him. That is the first time that

    15 he mentioned that he was in the room and that he was

    16 shot at and that he fell.

    17 In the statement he gave to the police in

    18 Zenica, he said that (redacted)

    19 was sleeping on the bed with her son (redacted) and that the

    20 attacker shot at both of them. After that, when making

    21 a statement to the investigating judge, he said that

    22 (redacted) was sleeping on the couch. Obviously, he needed

    23 this couch in order to protect himself. During the

    24 trial, he insisted on the couch and said that he never

    25 had said earlier on that the child had slept anywhere

  69. 1else.

    2 He did not only move himself in terms of the

    3 position where he was. The witness, in order to be in

    4 a position to identify the attackers, had to see their

    5 faces, at least to a certain extent. That is why he

    6 had to change the original description of the

    7 attackers. The attackers were masked by balaclavas at

    8 the time.

    9 Finally, the witness described the attackers

    10 as persons without any caps and that they were only

    11 masked with a few markings on their face. So in a few

    12 statements, the witness changed his testimony

    13 completely. He was getting closer and closer to the

    14 attackers and their faces were becoming more and more

    15 recognisable.

    16 The witness's statement changed profoundly

    17 thereby. There was an attempt of murder, then in terms

    18 of whether the attacker fell or not, where the child

    19 slept, et cetera. And all these elements serve one

    20 purpose, and that is to say, make the witness's

    21 statement convincing in terms of recognising the

    22 attackers.

    23 In addition to all these other changes which

    24 bring into question the credibility of the witness, the

    25 witness makes mistakes while giving evidence. He makes

  70. 1mistakes in terms of the action taken by the

    2 attackers. He makes mistakes in terms of describing

    3 the action related to their entry into the room. He

    4 makes mistakes in terms of describing the attack

    5 itself.

    6 The reason why he is doing this is only one,

    7 and that is that the witness was not present while this

    8 event occurred, so he was not sure in terms of what he

    9 was saying. He repeated something that he had said

    10 before. He changed other things. And that is all how

    11 all this confusion was created.

    12 Characteristic is his lack of certainty with

    13 regard to the weapons that the attacks had. He started

    14 with a MGV machine-gun. After it was ascertained that

    15 this machine-gun uses 0.22-millimetre ammunition, that

    16 is to say, ammunition for a pistol, and after it was

    17 also established that on site, bullet casings were

    18 found of a .76 calibre that are used by a Kalasikov,

    19 and this was also the result of expert findings,

    20 Kerkhoff, and this was admitted as P170, the witness

    21 allowed for the possibility of a bigger rifle.

    22 Also, during the trial there was a noticeable

    23 difference in terms of how and with what degree of

    24 certainty the witness spoke about various events.

    25 While he described the events after leaving

  71. 1the house, he was sure of himself, reasonable, and he

    2 was in a position to repeat the sequence of events.

    3 However, before that, and while he was talking about

    4 events in the house, as I already mentioned, he made a

    5 series of mistakes.

    6 There is another very important detail which

    7 points to the fact that the witness perhaps had not

    8 even been in the room next door during these events.

    9 When he made his statement to Witness HH, he did not

    10 know whether the children had been killed before they

    11 were burned.

    12 The witness could not say -- that is to say

    13 that he did not even know what had happened to the

    14 children.

    15 There was also the possibility of the witness

    16 having slept downstairs in the basement, where he would

    17 spend a lot of time. When he heard detonations and

    18 shots early in the morning, he ran away and hid in the

    19 barn; and later, when the barn was torched, he was

    20 burned himself.

    21 There is another thing that speaks in favour

    22 of this. When the witness came to his mother's place

    23 in Pirici, he heard shots and he fled. He left his

    24 mother behind. And she was later saved by Ljubo

    25 Vidovic, also a witness.

  72. 1A man who was a witness of the killing of

    2 children, could he have left his mother at the mercy of

    3 such persons? The testimony of Ljubo Vidovic speaks in

    4 favour of this as well. She said that the witness's

    5 mother said that her son had saved himself by running

    6 away from the house, and that he was burned while

    7 hiding in the hay. So a lot of this is illogical and

    8 unconvincing. It is illogical that an attacker would

    9 shoot three bursts of gunfire at a one-metre distance

    10 into the person without even having a single bullet

    11 graze him.

    12 Secondly, the fact that the attacker would

    13 shoot from the handle of the couch without even

    14 noticing this himself. Also it is illogical that only

    15 one attacker would have weapons, and it is a house that

    16 was being attacked, where they did not know who would

    17 be there.

    18 Also, if we disregard all the previous

    19 statements made by this witness, what is also doubtful

    20 is the way in which he says he recognised Mirjan

    21 Kupreskic. The witness says that Mirjan Kupreskic

    22 entered the room, crouching, leaning forward, and

    23 allegedly right behind Zoran, who came in first. He

    24 saw another person dimly, in a haze, because he was

    25 concentrated on the first attacker, who was shooting.

  73. 1If this is an event which lasted for a few

    2 moments only, as the witness pointed out on several

    3 occasions; if the other attacker walks in while

    4 crouching and leaning forward, behind the first

    5 attacker, and they are entering practically

    6 simultaneously; and if the witness is focused on the

    7 first attacker, because that's the one who is shooting;

    8 and if he sees the other one only in a haze and only

    9 for a minute; and if the attackers are masked, how is

    10 it possible for the witness to be so certain of the

    11 identity of the person whom he saw?

    12 The Defence believes that this is not

    13 possible, and that the witness came to his own

    14 conclusions with regard to the identity of the

    15 attackers and not by way of direct observation.

    16 As for the events that took place in Witness

    17 H's house, the Court heard Witness H, who, in her

    18 statements, also on several occasions made statements

    19 that were contradictory or mutually contradictory or

    20 contradictory to the statements that were previously

    21 given to the investigating judge.

    22 First of all, she denied having made any kind

    23 of a statement to an investigating judge, and then she

    24 changed her testimony once again to a large extent,

    25 compared to the statement made to the investigating

  74. 1judge.

    2 First of all, crucial elements where she

    3 changed her statement were the following: First of

    4 all, she said that her father did not have a rifle,

    5 that her father's name was mentioned, and before that

    6 she had not said that. Then she said that she kneeled

    7 before Zoran Kupreskic, that she begged him that they

    8 -- that he did not kill them. And before that she

    9 mentioned, during the investigation, the name of

    10 another soldier also during the investigation. She

    11 said that she saw Zoran and Mirjan Kupreskic upstairs

    12 in the house as they were torching it, and then during

    13 the trial she said that she did not go upstairs.

    14 And then the question is how well this

    15 witness knows Mirjan and Zoran Kupreskic. During the

    16 trial she said that she often saw Zoran Kupreskic in

    17 the store where he worked. This points to the fact

    18 that she did not really know Zoran or Mirjan Kupreskic

    19 very well. Namely, Zoran Kupreskic never worked in the

    20 shop; it was Mirjan Kupreskic who worked in the shop in

    21 the village.

    22 Apart from him, there was another person who

    23 worked there. That was Ivica Tolic. The witness did

    24 not only confuse Mirjan and Zoran Kupreskic. After

    25 getting out of the shelter, she said that she saw

  75. 1Mirjan Kupreskic on the staircase, but she did not

    2 mention him as a person whom she recognised as having

    3 worked in the shop before.

    4 In addition to that, she said that she saw

    5 Mirjan Kupreskic in the hall for a split second, in the

    6 house where the lights were dimmed, because there were

    7 no lights on in her house. And the entire event was

    8 happening under very traumatising circumstances; that

    9 is to say, at half past five in the morning. She saw

    10 him for a split second, she saw him masked, and she

    11 said that she undeniably recognised him.

    12 Because of certain statements that this

    13 witness gave, the Defence insisted that her mother be

    14 heard here; that is to say, Witness SA. However, in

    15 view of the condition of her health, she was not heard,

    16 and the Defence believes that this ruling of the Court

    17 has damaged the Defence.

    18 Namely, her mother, in a way -- could have

    19 been a statement that would have been a good check for

    20 the statement of Witness H. She said in her statement

    21 that all the persons who were in the house were in

    22 camouflage uniforms, with caps on their heads, and that

    23 they had various colours painted on their faces.

    24 Also, she said that all the soldiers were

    25 armed with pistols, knives and bombs, whereas her

  76. 1daughter talks about Zoljas and automatic rifles.

    2 Also, her daughter described these persons as

    3 persons in black uniforms, with black markings on their

    4 faces.

    5 Witness SA says that when she got out of the

    6 shelter in the children's room, there was no one.

    7 There were no soldiers there. And in the hall there

    8 was one soldier in camouflage uniform with various

    9 colours painted on his face.

    10 Witness SA did not recognise that person.

    11 However, Witness H, as opposed to her mother, says that

    12 after getting out of the shelter in the children's

    13 room, she saw Zoran Kupreskic, and then in the hall she

    14 saw Mirjan Kupreskic. Her mother, who was in the same

    15 situation that she was in, because they were getting

    16 out of the shelter together, recognised Mirjan

    17 Kupreskic as being the other person; that is to say,

    18 the person -- the soldier who was standing in the

    19 kitchen and who was rummaging through cupboards in a

    20 black uniform and with paint on his face.

    21 So one witness saw Zoran Kupreskic in the

    22 children's room and the other one said that there were

    23 no soldiers in that room. One saw Mirjan Kupreskic as

    24 a soldier who was in the hall and the other one

    25 recognised him as the soldier who was in the

  77. 1living-room.

    2 Both of them described the uniforms, but they

    3 did so differently.

    4 If we take into account the fact that the

    5 mother of the witness is closer to the generation of

    6 the accused and she knew her neighbours better, then it

    7 is surprising that she did not recognise them. Her

    8 later statement, when she says that she recognised

    9 Zoran, Mirjan and Vlatko in that house, is absolutely

    10 incredible and cannot be taken into account.

    11 Witness SA, in the second statement she gave,

    12 said that her daughter recognised Zoran Kupreskic, but

    13 for herself she said that she did not recognise

    14 anyone. However, in her statements, this witness never

    15 said that her daughter recognised Mirjan Kupreskic.

    16 Therefore, Mirjan Kupreskic is first

    17 mentioned in this case as a perpetrator of a crime in

    18 the house of Sukrija Ahmic, in the statement that

    19 Witness H gave to the investigating judge in Zenica on

    20 the 17th of December, '93, and then in the statement of

    21 her mother on the 20th of December, 1993, which means

    22 eight months after the event itself.

    23 After that, Witness KL also mentions him as

    24 the perpetrator of the crime in his house, but this was

    25 10 months after the actual event.

  78. 1There is another important thing in terms of

    2 comparing the statements of Witness H and her mother,

    3 respectively, and that is that everything that Witness

    4 H said that she had done herself -- that is to say that

    5 she talked to the soldiers, that she answered

    6 questions; that she begged they be allowed to remain in

    7 shelter -- her mother says that she did all of that

    8 herself. So they give identical statements with regard

    9 to that part.

    10 Witness H also says that they got out of the

    11 shelter themselves; that is to say that they were not

    12 found in the shelter, that they came out of their own

    13 accord, whereas as her daughter stated something else.

    14 That is to say that all these persons are

    15 members of the same family, the family that suffered a

    16 great deal on the 16th of April, 1993.

    17 Witness KL is Witness H's grandfather. There

    18 is no doubt that they talked about these events, they

    19 influenced one another, and formed certain joint

    20 opinions.

    21 The last statement made by KL coincides to a

    22 large extent with the statement made by Witness H; that

    23 is to say, in terms of the attire of the attackers, the

    24 colour on their faces, the way in which their faces

    25 were painted, et cetera.

  79. 1Witness SA, who is the mother of Witness H,

    2 also tries to get closer to that story, although until

    3 she made a statement to the investigator of the ICTY,

    4 she kept saying that these were unknown persons in

    5 camouflage uniforms. Nevertheless, she changed her

    6 statement, and among all the persons present in the

    7 house and wearing camouflage uniforms, finally she saw

    8 two black uniforms, the uniforms of Zoran and Mirjan

    9 Kupreskic respectively.

    10 Also, Witness EE, who is the daughter of

    11 Witness KL, made several different statements. As for

    12 the commission of the crime in her house, she charged

    13 several persons with that, and I believe that the

    14 Prosecutor was convinced that these persons were not in

    15 Ahmici on the 16th of April, 1993. However, this

    16 witness inter alia gave a statement to the police on

    17 the 14th of May, 1993, in which she mentioned that

    18 (redacted), during the first visit to the hospital,

    19 said that he was not in the room where his family had

    20 been killed, but that he was peeking through the door

    21 that was ajar. As for the place where (redacted) was

    22 during the time of the attack, corresponds to the

    23 description of the location that he gave in his first

    24 statements.

    25 In the same statement, she also mentioned

  80. 1that Witness SA said to her that her husband had been

    2 killed by Vlatko and Ivica Kupreskic and her house

    3 torched as well.

    4 Witness B is also a member of this family.

    5 He was an intelligence officer. What reasons would

    6 lead this family to accuse their neighbours of these

    7 murders? There is no doubt that this family suffered

    8 greatly on that day, and that they began to discover

    9 the perpetrators only later.

    10 In the case of Mirjan Kupreskic, this

    11 happened only in December 1993. They were certainly

    12 very frustrated because the perpetrators were not

    13 known, so they tried to conclude who the perpetrators

    14 might have been. The Kupreskics were their next-door

    15 neighbours. Their houses were closest to the houses of

    16 the victims. A gunfire came from the direction of

    17 their houses, so it was normal to conclude that if

    18 gunfire came from the direction of a certain house, it

    19 was the owners who fired. The houses of these people

    20 were not damaged and their families were not harmed.

    21 They thought that these were people who were respected

    22 in the village.

    23 So it was easy to conclude that all the

    24 Kupreskics were to blame and were to be accused of the

    25 crimes in their part of the village.

  81. 1However, it is characteristic that all these

    2 people do not mention the Kupreskics in their first

    3 statements, but only later on, and gradually. In their

    4 statements to the Ministry of the Interior, both

    5 Witnesses K and SL, listing the persons they thought

    6 might be responsible, did not mention either Zoran or

    7 Mirjan Kupreskic.

    8 In this connection, and speaking of problems

    9 of identification, expert witness Professor Wagenaar

    10 said that every information which is not received in a

    11 completely clear way leads to its reprocessing, and in

    12 a certain way it is always subject to further knowledge

    13 gained by a witness.

    14 In the light of this testimony, we must point

    15 out that both witnesses who accuse Mirjan Kupreskic

    16 describe in their statements the circumstances in which

    17 they saw the accused. One saw them very vaguely,

    18 focusing in on someone else, and the other one only for

    19 a split second in a dark house. So there is no doubt

    20 that the information they received was not clear.

    21 With regard to the fact that the perpetrators

    22 were masked -- and this is something that all the

    23 witnesses say, and all their initial statements were to

    24 the effect that the persons who entered the house were

    25 masked either with balaclavas or paint -- it is

  82. 1interesting to note that a witness said that in the

    2 morning, at the very beginning of the conflict, the

    3 witness saw a group of soldiers coming down from the

    4 direction of Redzib Ahmic's house, in the direction of

    5 the houses of Huso Krslic, Meho Hrustanovic, and

    6 Sukrija Ahmic. Describing this group of soldiers, he

    7 said that they had some kind of winter caps on their

    8 heads which concealed their faces.

    9 It follows from this part of the testimony of

    10 Witness O that the group of soldiers coming from the

    11 direction of Redzib Ahmic's house and going towards the

    12 lower houses were wearing camouflage uniforms and

    13 carrying automatic rifles. This description

    14 corresponds to the first description given by

    15 Witness SA.

    16 Therefore, as regards this first group of

    17 witnesses, it should be pointed out that, due to their

    18 family connections and the essential differences in

    19 their statements, and because they changed their

    20 statements over the course of time, we consider them to

    21 be unreliable witnesses.

    22 The fact that Witness SA, according to the

    23 testimony of her daughter, Witness H, was in a state of

    24 shock does not mean that she was unable to see what

    25 kind of uniforms the attackers wore, what they looked

  83. 1like, and in what way or how they were armed. We can

    2 also see from her testimony that she was able to

    3 describe the sequence of events.

    4 It is my opinion, therefore, that the

    5 evidence presented to the Court as regards the alleged

    6 guilt of Zoran and Mirjan Kupreskic for the murders in

    7 the house of (redacted) and their participation in the

    8 murder of Sukrija Ahmic are not sufficient for a

    9 conviction. Therefore, I consider that the Prosecutor

    10 has not proved beyond reasonable doubt that the two of

    11 them perpetrated these crimes, since the application of

    12 the criterion of beyond reasonable doubt means that any

    13 rational hypothesis, except the hypothesis of guilt,

    14 must be ruled out. We consider that this evidence does

    15 not meet this criterion.

    16 Since we consider that the murders in the

    17 house of Witness KL, as alleged by the Prosecutor, have

    18 not been proved, and with relation to the events in the

    19 house of Sukrija, we consider that they do not

    20 correspond to the facts in the indictment, and we

    21 believe that this evidence cannot be taken into

    22 consideration because it turned up in the course of the

    23 proceedings.

    24 I would like to say something in connection

    25 with the issue of persecution or aiding persecution, as

  84. 1mentioned by the Prosecutor in the indictment.

    2 I'm sorry. Just a moment. I lost my

    3 papers.

    4 The Prosecutor stated in the indictment that

    5 because of the actions committed by Mirjan and Zoran

    6 Kupreskic of taking their families away from the area

    7 which was allegedly to be attacked and not informing

    8 the Muslims of the imminent attack, and of being

    9 present in uniforms and with weapons on that day, the

    10 Prosecutor alleges that they aided persecution.

    11 I believe that the legal standard applied by

    12 the Trial Chamber in the Tadic case as to whether a

    13 person can be responsible for participating in a crime

    14 perpetrated by others, that the same standard should be

    15 applied in this case also, that the intention to

    16 participate in the commission of a crime should be

    17 proved, that the perpetrator acted with this intention,

    18 and that his actions contributed significantly to the

    19 commission of the crime. This significant contribution

    20 is explained by the Trial Chamber, when it says that

    21 the commission of a crime would not have taken place in

    22 the same way had the accused not undertaken certain

    23 actions.

    24 Therefore, the presence of a person in the

    25 area where a crime was committed must be conscious and

  85. 1a causal connection must be established between the

    2 person's presence and the commission of the crime.

    3 In relation to the fact that he facilitated

    4 the commission of a crime by not informing his Muslim

    5 neighbours, this would have been aiding by omission,

    6 but for this kind of collaboration to be established,

    7 we must first see what the legal duty of the person is

    8 to do this. We have to see what his duties were in

    9 order to establish that he omitted to perform his duty,

    10 leading to legal consequences.

    11 I believe that the omission of a village

    12 guard does not have this weight, even if the Prosecutor

    13 was able to prove that the accused were aware of what

    14 was going to happen.

    15 As regards facilitating the commission of a

    16 crime by taking away one's family, I think this is

    17 absurd, because according to the principle that

    18 everyone has the right to protect himself and his

    19 family and is not duty-bound to put his life and his

    20 family's life at risk, even if the Prosecutor were to

    21 prove that Zoran and Mirjan Kupreskic had some

    22 knowledge or awareness of the act, all these acts would

    23 not have this weight, nor would they have such an

    24 effect that we could say that their contribution was

    25 essential and significant.

  86. 1Therefore, I propose that in relation to all

    2 the counts of the indictment, the Trial Chamber should

    3 find Mirjan Kupreskic not guilty, and I join my

    4 colleague, Mr. Radovic, in his proposal that he should

    5 be temporarily released from detention. They gave

    6 themselves up voluntarily, they have spent two years in

    7 The Hague at the trial, they have not caused any

    8 problems, there were no problems in the detention unit,

    9 and, on the other hand, we consider that the evidence

    10 offered by the Prosecutor does not indicate that these

    11 people are especially dangerous.

    12 Therefore, we consider that the Trial Chamber

    13 should, once again, reconsider its ruling and should

    14 release these people temporarily from detention.

    15 JUDGE CASSESE: Thank you. Since we still

    16 have 15 minutes, before I call upon another Defence

    17 counsel to start -- I think it will be Counsel Krajina

    18 -- may I ask you a question, Counsel Slokovic-Glumac.

    19 Not in the oral argument, but in your written

    20 brief, you attach importance to alleged crimes,

    21 massacres, committed by Muslims against Croats in many

    22 villages before, during, or after the events we are

    23 discussing; namely, the 16th of April, 1993.

    24 What legal inference do you draw from those

    25 events, the alleged serious crimes committed by Muslims

  87. 1against Croats?

    2 MS. SLOKOVIC-GLUMAC: Mr. President, I

    3 believe that the Prosecutor's introduction to this

    4 trial and the general picture he attempted to present

    5 at this trial is incorrect.

    6 First of all, I consider that the events

    7 which took place during 1993, in January, February, and

    8 March of 1993, do not indicate that the political and

    9 military objectives of the HVO were directed at

    10 eliminating Muslims from this area. I, in fact,

    11 consider the very opposite.

    12 All of 1993, as is evident from the

    13 testimonies of witnesses who testified here, was such

    14 that the Muslim army, on several occasions, initiated

    15 conflicts. The first conflict they initiated was when

    16 they set up a roadblock in Kacuni, which in fact led to

    17 the January conflict, and in that conflict, the Muslims

    18 won. They cleansed the whole area between Kacuni and

    19 Bilalovac, and on that occasion, over a hundred

    20 Croatian houses were destroyed. All of these villages

    21 were ethnically cleansed of Croats, and, in this way,

    22 the Kiseljak area was cut off from the area of the

    23 Lasva River Valley.

    24 So what we are saying is that the HVO was

    25 then on the defensive and was weaker than the Muslim

  88. 1side. The crimes, and we mentioned the crimes in

    2 Dusina, Nazerovici, Oseliste, were in fact crimes which

    3 took place because the Muslim army had this kind of

    4 orientation and was cleansing this area of Croats.

    5 So in my opinion, the basic tenets of the

    6 Prosecution that the Croatian army was on the offensive

    7 ever since the HVO was established, and what its aims

    8 were, are not correct. No witnesses have been brought

    9 forward to talk about the suffering of Muslims in these

    10 areas.

    11 We do not believe that one crime can be

    12 justified by another, but we are saying that the

    13 overall picture presented by the Prosecutor is

    14 incorrect.

    15 JUDGE CASSESE: Thank you so much.

    16 I assume Counsel Krajina would prefer to

    17 start when we resume after the coffee break, so that he

    18 can have an hour and a half.

    19 Let us now take a longer coffee break of,

    20 say, 15 minutes. So we will resume at 12.25.

    21 --- Recess taken at 12.10 p.m.

    22 --- On resuming at 12.30 p.m.

    23 JUDGE CASSESE: Counsel Krajina.

    24 MR. KRAJINA: [Interpretation] Thank you,

    25 Mr. President. Good afternoon, Your Honours.

  89. 1With the amended indictment confirmed on the

    2 10th of March, 1998, the Prosecutor has charged Vlatko

    3 Kupreskic under point 1, crime against humanity,

    4 persecution on political, racial and religious grounds,

    5 punishable under 5(a) of the Statute; and counts 12 to

    6 15 for two crimes against humanity, murder, and two

    7 counts of violations of customs of war recognised by

    8 Article 3(1)(a) of the Geneva Conventions.

    9 After the evidence has been presented, we

    10 feel that the allegations from the indictment have not

    11 been proven, and the only proposition of the Defence is

    12 that the accused Vlatko Kupreskic should be acquitted

    13 of all counts he is charged with.

    14 This position is based on the following:

    15 With regard to Count 1, persecution, the accused Vlatko

    16 Kupreskic is accused of the following acts: Under 9 it

    17 is said that the accused Vlatko Kupreskic assisted in

    18 the preparation of the April attack on civilians in

    19 Ahmici and Santici by participating in military

    20 training and arming; by evacuating Bosnian Croats the

    21 night before the attack; by organising HVO soldiers; by

    22 organising arms and ammunition in and around the

    23 villages of Ahmici and Santici; prepared his home and

    24 the homes of his relatives as a starting position and a

    25 firing position for the attack; and concealed from

  90. 1other inhabitants that an attack was imminent.

    2 Also under point 1 it is stated that in the

    3 period from October '92 until April '93, Vlatko

    4 Kupreskic had persecuted Bosnian Muslim inhabitants of

    5 Ahmici, Santici, and surrounding, on political, racial

    6 or racial grounds; planning, organising and carrying

    7 out the attack intended to remove or cleanse all

    8 Bosnian Muslims from that village and the surrounding

    9 area; and that, in the context of that persecution, he

    10 participated, aided, or in other ways abetted the

    11 deliberate killing of Bosnian Muslim civilians, the

    12 comprehensive destruction of Bosnian Muslim homes and

    13 property, and the organised detention and expulsion of

    14 Bosnian Muslims from Ahmici, Santici and its environs.

    15 Bearing in mind the fact that the burden of

    16 proof is with the Prosecutor, let us review which of

    17 the allegations have been -- testimony has been

    18 provided for by the Prosecution and for which charges

    19 no evidence was tendered, even though charges have been

    20 made against Vlatko Kupreskic.

    21 Let us go one by one. The participation in

    22 military training, the Prosecution has not produced any

    23 evidence in support of this accusation.

    24 The evacuation of Bosnian Croat civilians in

    25 the night prior to the attack, no evidence presented by

  91. 1the Prosecution.

    2 Organising HVO soldiers, no evidence

    3 presented by the Prosecution.

    4 Organising weapons and ammunition in and

    5 around Ahmici and Santici, no evidence presented by the

    6 Prosecution.

    7 As for the background of the indictment, the

    8 Prosecutor with respect to Vlatko Kupreskic presented

    9 only indirect evidence meant to suggest that Vlatko

    10 Kupreskic had prepared his house as a location from

    11 which firing was made during the attack, and

    12 consequently kept secret from other residents of Ahmici

    13 that an attack was imminent. We shall return to these

    14 allegations later on.

    15 Furthermore, the incriminations from Count 1,

    16 that is, deliberate and systematic killing of Bosnian

    17 Muslim civilians, the Prosecutor presented evidence

    18 only with respect to counts 12 to 15, probably

    19 believing that if these counts would be proven, they

    20 would automatically prove the charges from Count 1.

    21 Since no evidence has been produced for this

    22 charge under Count 1, we shall discuss them in the

    23 course of the analysis of evidence presented for counts

    24 12 to 15.

    25 Regarding the charge, comprehensive

  92. 1destruction of Bosnian Muslim homes and property, the

    2 Prosecutor has also not presented any evidence

    3 pertaining to the accused Vlatko Kupreskic.

    4 The organised detention and expulsion of

    5 Bosnian Muslims from Ahmici, Santici and its environs,

    6 again the Prosecutor presented no evidence pertaining

    7 to the accused Vlatko Kupreskic.

    8 Therefore, under Count 1 of the indictment,

    9 the accused Vlatko Kupreskic has been charged with

    10 numerous acts, the majority of which the Prosecution

    11 never even attempted to prove, as indeed no evidence

    12 could be found for such allegation, nor does it exist.

    13 The only thing the Prosecution attempted to

    14 prove is the following, starting from a fact that the

    15 Defence has not disputed, and that is that on the

    16 critical date of the 16th of April, '93, unknown

    17 soldiers were shooting in front of Vlatko Kupreskic's

    18 house: The Prosecution has attempted by indirect

    19 evidence to say that Vlatko Kupreskic, knowing that the

    20 attack was imminent, lent his house to the soldiers as

    21 a firing position and thus participated in the

    22 persecution.

    23 For that purpose the Prosecution witnesses L,

    24 M, O, B, T and G have testified. What did these

    25 witnesses say?

  93. 1Witness L claims that on the 15th of April,

    2 1993, he saw the accused Vlatko Kupreskic sitting with

    3 Ivica and Mirko Vidovic, having beer in front of his

    4 shop, and that at the same time there was some 10

    5 soldiers in the warehouse of the shop; and that on the

    6 same day, while passing by the accused's house, he saw

    7 some 30 soldiers in black uniforms on the balcony of

    8 the house.

    9 Witness M claims that on the 15th of April,

    10 1993, she saw four to five soldiers enter the basement

    11 or the warehouse of Vlatko Kupreskic.

    12 Witness O says that at around 3.45 on the

    13 16th of April, 1993, he saw the light on in Vlatko

    14 Kupreskic's house.

    15 These witnesses, by this evidence, were to

    16 have confirmed the submission of the Prosecution that

    17 Vlatko Kupreskic was in cohort with the army and

    18 therefore gave his house to be used for military

    19 purposes.

    20 Who are these witnesses and what are their

    21 statements like?

    22 Witness L is a person without employment,

    23 with damaged mental health, prone to alcohol abuse.

    24 His health condition has been testified to by numerous

    25 residents of Ahmici in this Court, among whom are Ljuba

  94. 1Vidovic, Gordana Cuic and Ivica Kupreskic.

    2 In his testimony, Witness L states that

    3 immediately prior to the event that he testified about,

    4 he had had three glasses of brandy. He could not

    5 precisely define the time when he allegedly saw the

    6 accused, not even the date. In each of the previously

    7 made statements he gave a different time of the event

    8 and so on.

    9 The only point where he remained consistent

    10 was that at the critical time, he saw the accused

    11 Vlatko Kupreskic in the company of Ivica Kupreskic and

    12 Mirko Vidovic.

    13 Ivica Kupreskic and Mirko Vidovic have also

    14 testified in Court, and Vlatko Kupreskic himself

    15 testified about this event. Ivica Kupreskic stated

    16 that at that time he was with Vlatko Kupreskic,

    17 travelling from Split to Vitez. This was confirmed by

    18 Vlatko Kupreskic and numerous witnesses, including

    19 Ankica Kupreskic, Ljubica Kupreskic, Radoslav Simovic

    20 and (redacted).

    21 The appropriate travelling documents have

    22 been presented to the Court and we will be coming to

    23 them a little later.

    24 Mirko Vidovic, whom Witness L allegedly saw

    25 with the accused and the soldiers on the 15th of April,

  95. 11993, was at that time in Germany. During his

    2 testimony, Mirko Vidovic provided the Court with

    3 documents proving his stay in Germany: HVO permit for

    4 the trip to Germany, his passport, and the certificate

    5 of the city of Frankfurt. These were tendered Exhibits

    6 D28/3, D29/3 and D30/3.

    7 In his testimony of the 22nd of March, 1993,

    8 he confirmed that in the period from the 1st of April

    9 1993 until June 1995 he was outside Bosnia-Herzegovina

    10 and Ahmici.

    11 Witnesses Gordana Cuic, Mirko Vidovic's

    12 sister, and Rudo Vidovic, Mirko Vidovic's brother, and

    13 witness Alojz Vidovic, confirmed that Mirko Vidovic

    14 could not possibly have been in Ahmici at the time he

    15 was allegedly seen by Witness L.

    16 Therefore, the testimony of Witness L, in our

    17 view, is absolutely unacceptable and unreliable, since

    18 it is in direct contradiction with the facts documented

    19 by the aforesaid witnesses, who claim that it was not

    20 possible for Witness L to see what he testified about.

    21 Bearing in mind the physical and mental

    22 condition of Witness L, and the fact that he had

    23 consumed alcohol just then, we feel that this testimony

    24 should be dismissed.

    25 Witnesses M and O are husband and wife, who,

  96. 1as refugees, were living with Witness L, and their

    2 testimony has no direct bearing with the accused Vlatko

    3 Kupreskic, but it was used to corroborate the testimony

    4 of Witness L, which obviously on its own cannot stand

    5 when contrasted against the Defence witnesses'

    6 testimonies and the documents presented.

    7 From the contents of the testimonies of

    8 Witnesses M and O, nothing can be found that would

    9 concretely point to the involvement of the accused

    10 Vlatko Kupreskic in the preparations of the attack, as

    11 these witnesses did not even see him. But apparently

    12 the light was on for a moment in the house, and I don't

    13 know what kind of a conclusion can be derived from that

    14 of any significance.

    15 If we view testimonies of Witnesses M and O

    16 as separate evidence, they have no probative value, in

    17 our opinion, nor is there any logic in linking them

    18 with the testimony of Witness L, which is absolutely

    19 unacceptable.

    20 For the above reasons we feel that on the

    21 basis of the testimonies of Witnesses L, M, and O, the

    22 role of Vlatko Kupreskic cannot be proven regarding the

    23 accommodation of the army in Ahmici or in his house.

    24 A similar role regarding creating the

    25 impression of the involvement of the accused Vlatko

  97. 1Kupreskic in the events prior to the 16th of April,

    2 1993 was played by Witness B, who allegedly, on the

    3 15th of April, passing by car in front of the Vitez

    4 Hotel in Vitez, looked for a moment, and at a distance

    5 of 30 metres saw the accused Vlatko Kupreskic in

    6 civilian clothes, standing some 10 metres away from the

    7 entrance into the hotel with three persons in uniform.

    8 The questions arising from this testimony is

    9 whether from that distance and the manner of the

    10 observation, from a moving car, it is possible to

    11 recognise a person. Expert witness Professor Wagenaar,

    12 who presented his expert testimony on the possibility

    13 of recognising persons at a distance, did not consider

    14 this recognition to be acceptable. Besides, Witness B

    15 had been living away from Ahmici for years, due to his

    16 work and service, and therefore had not been seeing

    17 Vlatko Kupreskic to be able to know well his outside

    18 appearance.

    19 Another objection to this testimony is that

    20 it is in contradiction with the testimonies of all

    21 previously mentioned witnesses who testified that the

    22 accused at that time was on his way from Split, as well

    23 as the documents presented with regard to that trip.

    24 It may perhaps be of interest that Witness B,

    25 at the time he was testifying about, was a security

  98. 1officer of the Bosnian army, who, by the nature of his

    2 work, had to collect all information about persons who

    3 were in any way involved in military and war activities

    4 against the Muslims. Even such a witness had no

    5 knowledge of the alleged activities of the accused

    6 Vlatko Kupreskic, as mentioned in the indictment.

    7 Had there been any such activities, this

    8 witness would certainly have been among the first to be

    9 aware of it and to tell us about them.

    10 The next witness, Witness T, in his testimony

    11 says that in the autumn of 1992, during the Serb

    12 aggression against Bosnia-Herzegovina, in the evening,

    13 passing not far from the house of the accused Vlatko

    14 Kupreskic, saw the accused and his wife, Ljubica, and

    15 another person, carrying what she thought were

    16 automatic weapons out of the car into the house.

    17 The very fact that this testimony relates to

    18 a period in time when the only ongoing conflict was the

    19 one with the Serbs, and when the Croats and Muslims

    20 were military and political allies, makes unacceptable

    21 bringing this evidence in connection with the alleged

    22 armament of units to fight the Muslims.

    23 The truthfulness of Witness T's statements

    24 has been rebutted entirely by the accused Vlatko

    25 Kupreskic and witness Ljubica Kupreskic. As the only

  99. 1possibility, they agree that Witness T may have seen

    2 them unloading some goods, as this is something they

    3 frequently did when they were storing those goods in

    4 their warehouse.

    5 The objective and possibility of identifying

    6 objects that were being unloaded from the car as

    7 weapons, bearing in mind the manner, the place and the

    8 time of observation, also excludes the reliability of

    9 this testimony.

    10 Finally, Prosecution Witness G, who claims

    11 that, six days after the conflict of the 16th of April,

    12 1993, allegedly he saw the accused, from a distance of

    13 some 300 metres, enter with a group of people the house

    14 of Sakib Ahmic and carrying something out of the

    15 house.

    16 What was the purpose of this testimony, which

    17 is outside the time covered by the indictment, except

    18 perhaps to try to portray the image of the accused,

    19 who, allegedly, searches through abandoned houses for

    20 material gain?

    21 What is the credibility of a recognition from

    22 a distance of 300 metres by a witness who, six days

    23 previously, had experienced a terrible family tragedy,

    24 had been unconscious, without food and water, and was

    25 only 13 years of age at the time? Can such a testimony

  100. 1be accepted, when the witness claims, among other

    2 things, that he recognised the accused in a car, a blue

    3 Yugo 45, not knowing that Ivica Kupreskic had the same

    4 car as Vlatko Kupreskic?

    5 Your Honours, those were the Prosecution

    6 witnesses, on the basis of which attempts are being

    7 made to prove the involvement of Vlatko Kupreskic in

    8 planning and organising the expulsion of Muslims from

    9 Ahmici. How can such evidence be accepted, when not a

    10 single one of these witnesses specified an act by the

    11 accused which would, without any doubt, reflect

    12 criminal behaviour by the accused in line with the

    13 charges in Count 1?

    14 Not one of these Prosecution witnesses has

    15 claimed that the accused was involved in the

    16 persecution of Muslims from Ahmici. Not even the

    17 intelligence officer, Witness B, said that not on the

    18 fact that somebody was standing in front of the Vitez

    19 Hotel on the 15th of April can any convincing

    20 conclusion be drawn about the activities of that

    21 person.

    22 Combining such indirect evidence into a story

    23 about the involvement of the accused in planning and

    24 executing persecution we consider to be unacceptable,

    25 as there is simply not sufficient evidence to make such

  101. 1a story credible. If we also refer to Defence

    2 witnesses rebutting the Prosecutor's interpretation of

    3 the evidence, then the stories about the alleged role

    4 of the accused Vlatko Kupreskic in the persecution of

    5 Muslims from Ahmici will be totally devoid of content.

    6 As for so-called material evidence relating

    7 to Count 1 of the indictment, in the course of the

    8 proceedings, the Prosecutor tendered documents marked

    9 P329 and P335. These documents were intended to shed

    10 light on the alleged connection between Vlatko

    11 Kupreskic and HVO structures and indicate that Vlatko

    12 Kupreskic was mobilised on the 16th of April, 1993 and

    13 that he was posted to the duty of deputy health

    14 officer.

    15 The first objection that can be made with

    16 respect to this evidence is that even if these

    17 documents were authentic, they cannot be taken into

    18 consideration for the charges, as even the indictment

    19 does not allege that HVO membership, and even as a

    20 deputy health commander, in itself means criminal

    21 responsibility, the more so as recruitment or

    22 mobilisation is a legal obligation that cannot be

    23 avoided without sanctions, and since participation in

    24 the war in Bosnia-Herzegovina, even serving in an enemy

    25 army, is an act that has been amnestied by all

  102. 1participants in the war in Bosnia-Herzegovina. This

    2 has been confirmed by the testimony of the judge of the

    3 supreme court of Bosnia-Herzegovina in this court.

    4 The second objection to these documents is

    5 that the information stated in them is not true.

    6 We can start with Prosecution evidence P329;

    7 namely, a certificate issued by the Vitez Regiment on

    8 the 4th of June, 1996 which establishes that Vlatko

    9 Kupreskic performed the duty of the deputy commander in

    10 charge of health in the period between the 16th of

    11 April, 1993 and the 15th of January, 1996.

    12 Under pseudonym DA/5, a witness testified

    13 with respect to whether the information from these

    14 certificates is true or not. She, at the critical

    15 time, worked in the recruitment and assignments

    16 department of the Vitez Regiment. This witness stated

    17 that she personally drafted Vlatko Kupreskic only in

    18 the summer of 1993, sometime in June or July, and

    19 posted him to the duty of organising the medical

    20 service. This witness has confirmed that she knew that

    21 the accused Vlatko Kupreskic was incapable of military

    22 service and that he had been exempt from military

    23 service due to a heart condition.

    24 This witness also confirmed the authenticity

    25 of Defence Exhibits D13/3, D14/3, D15/3, D16/3, and

  103. 1D17/3; that is to say, the military ID of the accused,

    2 the decision of the Medical Board of Appeal of 1993,

    3 the letter of discharge from the Military Academy

    4 Hospital, the decision of the Defence Administration

    5 from Travnik, and the certificate on his incapacity for

    6 military service, that is, of the accused, of 1998.

    7 All of these documents indubitably indicate

    8 that Vlatko Kupreskic, due to his heart condition, was

    9 declared incapable for military service before the war,

    10 during the war, and that he is recorded as such until

    11 the present day in the military files.

    12 For the purpose of evaluation and being

    13 exempt from military service, he was, during the war,

    14 sent to a medical board of the military which declared

    15 him exempt. It was true that he was later recruited

    16 into the medical service, the medical corps, which the

    17 accused himself confirmed during the course of his

    18 testimony, stating that it was in the month of

    19 September 1993, in a situation when this mobilisation

    20 was carried out forcibly.

    21 The manner and the time of the recruitment

    22 and mobilisation of the accused Vlatko Kupreskic was

    23 also confirmed by witness Zoran Drmic before this

    24 court. He was present when Vlatko Kupreskic was

    25 mobilised, as he was then working in the same office

  104. 1with Witness DA/5 on maintaining military records of

    2 persons liable for military obligation. The content of

    3 this testimony is identical to the claims made by

    4 Witness DA/5 and the accused Vlatko Kupreskic, as well

    5 as to those of the witness Ljubica Kupreskic, who also

    6 testified with respect to these circumstances.

    7 Witness DA/5 has also rebutted the accuracy

    8 of the information from Prosecution Exhibit P329,

    9 claiming that it was not possible for the accused to

    10 have been conscripted on the 16th of April, 1993, as

    11 she personally mobilised him much later; that is to

    12 say, on the 16th of April, 1993, the post of health

    13 deputy, stated in the aforesaid certificate, did not

    14 exist at all. The witness claims that it was not until

    15 June or July 1993 that the medical platoon was

    16 established.

    17 Witness DA/5 also explained that the

    18 certificate, Prosecution Exhibit P329, was issued upon

    19 the request of the person it pertains to, who could,

    20 based on such certificates of participation in war, be

    21 entitled to certain ownership rights, such as the right

    22 to hold shares of the BiH Federation. In order to make

    23 it possible for people to exercise these rights, to the

    24 greatest extent possible, the authorities used to write

    25 in the date of the 16th of April, 1993, when the war

  105. 1began, as the date when their participation in the war

    2 commenced. That is how this date made it into this

    3 certificate, P329.

    4 Witness DA/5 also commented on Prosecutor's

    5 Exhibit P353, the report on mobilisation, in which

    6 there is mention made of the name of the accused Vlatko

    7 Kupreskic. The witness explained that this report only

    8 contains the following information; that is, that in

    9 the period between the 16th and 28th of April, 1993,

    10 mobilisation was carried out, but it does not show

    11 exactly when particular individuals were mobilised.

    12 Numerous other witnesses also pointed out the

    13 inaccuracies from this report, claiming that it simply

    14 represents a list of male persons who were to be

    15 mobilised.

    16 This evidence of the Prosecutor had one

    17 purpose only, and that is to show some kind of active

    18 role of the accused Vlatko Kupreskic in the HVO and his

    19 alleged membership in the HVO from the 16th of April,

    20 1993.

    21 We are of the opinion that dozens of

    22 witnesses have rebutted the accuracy of this and other

    23 documents on HVO membership, as it is common knowledge

    24 that in post-war Bosnia and Herzegovina, almost

    25 everyone could have the date of the 16th of April, 1993

  106. 1recorded as the starting date of their participation in

    2 the BH war, all of it, of course, to enable them to

    3 exercise their right to hold BH Federation shares.

    4 Apart from that, Witness DA/5 and Zoran

    5 Drmic, the persons who personally and directly handled

    6 the conscription/mobilisation of the accused Vlatko

    7 Kupreskic, indubitably rebutted in their testimonies

    8 the accuracy of the information contained in documents

    9 P329 and P335; that is, the allegation that Vlatko

    10 Kupreskic was mobilised on the 16th of April, 1993.

    11 It should also be pointed out that not a

    12 single witness who was examined in the course of these

    13 proceedings could state that he saw the accused Vlatko

    14 Kupreskic as a member of any military unit at that

    15 time, and not even having heard anyone else say so.

    16 This exhausts what we wish to say in

    17 connection with Prosecution evidence in respect of the

    18 responsibility of Vlatko Kupreskic for Count 1. We are

    19 of the opinion that not one of these pieces of evidence

    20 taken separately could stand an inaccuracy test with

    21 respect to the rebuttal evidence of the Defence.

    22 Furthermore, not one of these pieces of evidence

    23 contains sufficient elements for establishing any

    24 action of the accused that could be incriminated with

    25 respect to Count 1 of the indictment. Therefore, we

  107. 1are convinced that they have to be dismissed as

    2 irrelevant and lacking credibility.

    3 With respect to the claims of the Prosecution

    4 about the alleged involvement of the accused Vlatko

    5 Kupreskic in the events described in Count 1 of the

    6 Prosecution, the Defence has offered evidence that

    7 endeavoured to provide a reconstruction of the life and

    8 behaviour of the accused in the period pertaining to

    9 the indictment and prove that accusations against

    10 Vlatko Kupreskic are unfounded, as he had no role in

    11 the events mentioned in the indictment.

    12 Elaborating further on that, the main points

    13 of the Defence with respect to Count 1 have been as

    14 follows:

    15 In the time prior to the conflict of the 16th

    16 of April, 1993, Vlatko Kupreskic did not have any

    17 military, political, or other prerogatives that could

    18 suggest that he could participate in preparing,

    19 planning, or carrying out the expulsion or

    20 persecution.

    21 At the time pertaining to the indictment,

    22 Vlatko Kupreskic was not even mobilised and did not

    23 take part in any military units, not even in the

    24 village guards. Throughout this period, he was

    25 exclusively involved in his commercial trade.

  108. 1Vlatko Kupreskic did not know, nor could have

    2 known, that a conflict could break out in Ahmici on the

    3 16th of April, 1993.

    4 Vlatko Kupreskic did not hand over his house

    5 to soldiers for combat engagement; it was taken over

    6 forcibly by soldiers, after he had abandoned it in

    7 order to go to a shelter, and then these soldiers took

    8 action from that house.

    9 Vlatko Kupreskic's attitude towards his

    10 Muslim neighbours was the same before, during, and

    11 after the war.

    12 We are going to present a brief reminder of

    13 the evidence presented by the Defence to corroborate

    14 these theses.

    15 Not one of the witnesses, neither of the

    16 Prosecution nor of the Defence -- and numerous

    17 witnesses were asked to testify with respect to these

    18 circumstances -- had ever said that they saw the

    19 accused Vlatko Kupreskic acting politically or

    20 militarily, that they ever saw him in uniform or

    21 carrying weapons. No one ever said that Vlatko

    22 Kupreskic had any kind of prerogatives or authority on

    23 the basis of which he might have had more information

    24 than any other resident of Ahmici, be him a Muslim or a

    25 Croat. Defence Exhibit D18/3, authorised by witness

  109. 1Rudo Kuvenja, states that Vlatko Kupreskic was not even

    2 a member of the HDZ, which was a political organisation

    3 which was, at that time, joined by almost all Croats.

    4 He was not a member of any other political organisation

    5 either.

    6 Not one of the witnesses stated that the

    7 outward behaviour of Vlatko Kupreskic provoked, in any

    8 way, national ethnic intolerance or hatred. On the

    9 contrary, all witnesses confirmed that in his job and

    10 behaviour, at work and in his personal conduct, he did

    11 not discriminate between Croats and Muslims, or people

    12 of any other ethnicity.

    13 Our second thesis is that Vlatko Kupreskic

    14 was not engaged in the military, and this has been

    15 proven by means of documents certifying his incapacity

    16 for military service; namely, D13, D14, D15, D16, D17,

    17 and the testimonies of Witness DA and Zoran Drmic,

    18 which we mentioned early, and the fact that no one ever

    19 saw him in uniform or carrying a weapon, not even in

    20 the village guards.

    21 That Vlatko Kupreskic at the time was

    22 exclusively involved in his own trade was mentioned by

    23 numerous witnesses of the Defence and the Prosecution,

    24 who testified with respect to those circumstances;

    25 notably, Vlado Alilovic, who at the time worked in the

  110. 1logistics department of Vitez that was in charge of

    2 issuing trade permits for businesses. This witness

    3 confirmed that the accused, throughout the period

    4 leading up to the conflict of the 16th of April, 1993,

    5 conducted his own commercial business. The same

    6 witness confirmed the authenticity of Defence Exhibits

    7 D10/3, D11/3; that is to say, the general permit for

    8 commercial trade and the permit for the movement of

    9 persons and goods, those being the documents related to

    10 the business of the accused in the period prior to the

    11 conflict.

    12 The Defence has maintained and continues to

    13 maintain that Vlatko Kupreskic could not have known

    14 that the conflict of the 16th of April, 1993 would

    15 break out. He could not have known because, from the

    16 early morning of the 14th of April, 1993 to the evening

    17 of the 15th of April, 1993, he was away on a business

    18 trip in Split, in the Republic of Croatia.

    19 Consequently, on the day when there could

    20 have been some preparations for the attack, he simply

    21 was not physically present in Ahmici, and therefore he

    22 could not have participated in any of it.

    23 Witnesses who were travelling with him were

    24 examined with respect to these circumstances; namely,

    25 Ivica Kupreskic; Ankica Kupreskic; a Muslim witness,

  111. 1pseudonym DE, who met him on the way; then Witness

    2 Radoslav Simovic, at whose house he spent the night

    3 between the 14th and 15th of April, 1993, in Baska Voda

    4 in Croatia; and a Muslim witness, DF, to whose place

    5 the accused was supposed to take part of the goods he

    6 brought from Split; and Vlatko's wife, Ljubica

    7 Kupreskic. The accused himself also testified with

    8 respect to these circumstances.

    9 Regarding this trip, appropriate official

    10 documents were presented that had to be obtained at the

    11 time for the purpose of travel, those being D24/3, that

    12 is, a travel warrant; D25/3, a permit for the trip of

    13 Ivica Kupreskic; D26/3, permit for the trip of Vlatko

    14 Kupreskic; D27/3, a road map marked by Ivica Kupreskic

    15 during the course of his testimony.

    16 So many pieces of evidence were presented

    17 with regard to this trip that the Defence considers it

    18 indisputable. So to summarise, Vlatko Kupreskic

    19 arrived in Ahmici only in the evening of the 15th of

    20 April, 1993, and saw nothing special going on in his

    21 house or in his shop that would suggest the events of

    22 the next day.

    23 On that day, on the 15th of April, 1993,

    24 Vlatko and Ivica Kupreskic brought Ivica's wife,

    25 Ankica, from Split to Ahmici. Until then Ankica had

  112. 1been in Germany as a refugee. It would have made no

    2 sense, Your Honours, that they should have brought her

    3 back on that very day had they known that there would

    4 be an armed conflict on the very next day, the very

    5 next morning.

    6 Vlatko's children went to school normally on

    7 that day, like all other children, Croat and Muslim, on

    8 the 15th of April, 1993. Vlatko's wife, Ljubica

    9 Kupreskic, took her driver's exam on that day, the 15th

    10 of April, 1993, which is corroborated by her testimony

    11 in this Court. How could it be claimed, in spite of

    12 all this evidence, that Vlatko Kupreskic knew that

    13 there was to be a conflict? His behaviour and his

    14 movement in the days prior to the conflict rebut this

    15 absolutely.

    16 And when indeed did Vlatko Kupreskic learn

    17 about the attack? He was the last one to know among

    18 his Croat neighbours. He was the last one to be

    19 informed by telephone, when everybody had already left

    20 their homes. This was clearly confirmed by the

    21 testimony of Ivica Kupreskic, Ljubica Kupreskic, and

    22 Vlatko Kupreskic himself, respectively.

    23 The Prosecution claims that Vlatko Kupreskic

    24 knew about the conflict and that he kept it secret from

    25 his Muslim neighbours. Rather, it could be said that

  113. 1if anything at all was known, it was kept secret from

    2 him, because he was the last to find out. He did not

    3 even evacuate his father from the house, as he did not

    4 know what would happen.

    5 Vlatko Kupreskic did not hand over his house

    6 to the soldiers as a firing point. The military did

    7 not ask anyone for permission to enter their house or

    8 any other building. Vlatko's house was in a position

    9 of tactical importance. The road between Upper and

    10 Lower Ahmici could be controlled from it, and any army

    11 would have taken it during combat action. And in that

    12 context, a house owner cannot refuse that at all.

    13 This was corroborated by an English officer,

    14 Colonel Watters, in his testimony before this Court as

    15 well.

    16 Vlatko Kupreskic left the house with his

    17 family before the soldiers arrived, and went to the

    18 shelter, not knowing at all that the military would

    19 come to his house. His father remained in the house

    20 and later related that the soldiers forcibly took the

    21 house, damaging the door, and then also searched the

    22 house afterwards. They plundered and took away

    23 Vlatko's property. Soldiers, who would have arranged

    24 their coming with the house owner beforehand, probably

    25 would not have behaved that way.

  114. 1This is what can be concluded on the basis of

    2 the testimony of Vlatko Kupreskic, of Ljubica

    3 Kupreskic, Defence Exhibit D12/3, on the damage done to

    4 the house, and the testimony of Vlado Alilovic.

    5 It is the fact that on the 16th of April,

    6 1993, the soldiers took the house of Vlatko Kupreskic

    7 and engaged in combat from it, but Vlatko Kupreskic

    8 cannot be charged with it, for two reasons:

    9 First, because he did not know that soldiers

    10 would take his house and fire from it. And secondly,

    11 because the military cannot be prevented from doing so

    12 by anyone.

    13 Vlatko Kupreskic cannot be held responsible

    14 for what was done without his knowledge and which was

    15 not in his power to prevent.

    16 The Defence also wanted to show that Vlatko

    17 Kupreskic's attitude towards Muslims was the same

    18 before, during, and after the war. Before and during

    19 the war, not a single witness, either for the

    20 Prosecution or the Defence, said that there was any

    21 discrimination on religious, ethnic or political

    22 grounds in the behaviour of the accused.

    23 In the period after the war, in spite of the

    24 serious allegations because of which Vlatko Kupreskic

    25 is on trial before the International Tribunal today, he

  115. 1still has the same relationships with Muslims as

    2 before. His family continues to live in Ahmici,

    3 Muslims still come to his shop, and Muslims from

    4 Ahmici, witnesses too, and victims of the conflict of

    5 the 16th of April, 1993, still respond to the summons

    6 of this Court to testify about the way these events

    7 occurred. And as many as 12 Muslims from Ahmici have

    8 given their statements about the character of the

    9 accused.

    10 Had Vlatko Kupreskic done what is written --

    11 what he is accused of in the indictment, these

    12 statements would not have been made, nor would these

    13 witnesses have appeared before the Court.

    14 Therefore, the Defence considers that with

    15 respect to Count 1, it has presented evidence which

    16 makes these allegations totally unacceptable with

    17 respect to the accused Vlatko Kupreskic.

    18 As for the legal positions with respect to

    19 the responsibility of the accused for persecution, in

    20 this case the Prosecutor advocates the thesis that in

    21 order to prove the penal responsibility of Vlatko

    22 Kupreskic, it is sufficient to show that he knew that

    23 the soldiers would use his house for the attack, and

    24 that he agreed to that, giving his support to it.

    25 We consider this premise to be purely

  116. 1theoretical, because the Prosecutor has not proved that

    2 the accused knew what would happen or shown that he

    3 acted in a way that showed that he consented to the

    4 consequences or wanted them.

    5 The position of the Defence with respect to

    6 the responsibility for persecution is identical to the

    7 position of the Supreme Court of the Bosnia-Herzegovina

    8 Federation, which seeks a direct intention as a form of

    9 consciousness which the accused has, an intention that

    10 can be clearly seen from concrete and individual

    11 actions of the accused.

    12 We refer to the verdict of the Supreme Court

    13 of Bosnia-Herzegovina, of the Federation, and the

    14 judgement of the higher court in Sarajevo, which have

    15 been admitted as Defence Exhibits D31/3 and D32/3,

    16 and the testimony of the President of the Supreme Court

    17 of the Bosnia-Herzegovina Federation before this Court.

    18 By presenting this evidence of the legal

    19 practice in the Federation of the Bosnia-Herzegovina,

    20 the Defence wish to show that the accused Vlatko

    21 Kupreskic, with evidence presented against him with

    22 respect to Count 1, with no concrete acts of

    23 commission, with not an established form of

    24 consciousness and of an act and its consequences, could

    25 not be sentenced before a court in Bosnia-Herzegovina,

  117. 1the country where the acts alleged in the indictment

    2 were committed, and the country whose citizen he is.

    3 It is therefore our position that Vlatko

    4 Kupreskic cannot be sentenced for Count 1 of the

    5 indictment, either in the Netherlands or any other

    6 country where international law is applicable.

    7 Your Honours, we would like to end our

    8 presentation as regards Count 1, and my colleague will

    9 now refer to Counts 12 to 15 of the indictment.

    10 MR. PAR: [Interpretation] Your Honours, in

    11 Counts 12 to 15 of the indictment, Vlatko Kupreskic has

    12 been charged with having committed two criminal acts:

    13 A crime against humanity, punishable under Article

    14 5(a), murder, of the Statute of the Tribunal; and two

    15 criminal acts of violation of the laws and customs of

    16 war punishable under Article 3 of the Statute of the

    17 Tribunal, as recognised by Article 3(1)(a), cruel

    18 treatment of the Geneva Conventions.

    19 These allegations pertain to the events of

    20 the 16th of April, 1993, and according to the

    21 indictment of that day, there were soldiers in Vlatko

    22 Kupreskic's house who used the house as the starting

    23 point from where they shot at Bosnian Muslim civilians.

    24 The accused Vlatko Kupreskic has been charged

    25 with being together with HVO soldiers in front of the

  118. 1house when the Pezer family, together with other

    2 Bosnian Muslims, ran past his house, fleeing for their

    3 lives, and that Vlatko, together with the HVO soldiers

    4 from the position in front of his house, where they

    5 were aiding and abetting each other, participated in

    6 the wounding of Dzenana Pezer and one other woman, and

    7 the murder of Fata Pezer. This is what is alleged

    8 against Vlatko Kupreskic.

    9 The Defence is of the opinion that after the

    10 presentation of evidence, these allegations have not

    11 been proved and therefore proposes that Vlatko

    12 Kupreskic be acquitted of charges contained in Counts

    13 12 to 15.

    14 We base this opinion on the evidence

    15 presented by the Defence, which has clearly shown the

    16 following:

    17 Vlatko Kupreskic was not present at the place

    18 where these events took place on the day in question.

    19 Secondly, the Pezer family and the group were

    20 attacked in a spot which cannot be seen from Vlatko

    21 Kupreskic's house, so they could not have been hit by

    22 bullets fired from that house.

    23 And thirdly, the testimony of Witness Q, on

    24 which the accusations against Vlatko Kupreskic are

    25 founded, and who is the only one who claims to have

  119. 1seen Vlatko Kupreskic on the day in question, is

    2 totally unacceptable because this is not a credible

    3 witness.

    4 These are the three lines of Defence

    5 presented before this Court. Let us remind ourselves

    6 of the evidence presented.

    7 With respect to the claim or, rather, with

    8 respect to what the Defence maintains, that Vlatko

    9 Kupreskic was not at the scene of crime, has been shown

    10 by the testimony of Jozo Vrebac, Alojz Vidovic, Ruza

    11 Grgic, Ljubica Kupreskic, Gordona Cuic, Ivo Vidovic,

    12 Ljuba Vidovic, and the accused Vlatko Kupreskic

    13 himself.

    14 All of these witnesses have confirmed beyond

    15 a doubt that they saw Vlatko Kupreskic in a shelter for

    16 people not fit for military service, in Jozo Vrebac's

    17 house, from 6 a.m. until 10 a.m., and that he did not

    18 leave that shelter even for a moment.

    19 In the final brief of the Prosecutor, the

    20 presence of Vlatko Kupreskic in that shelter has not

    21 been challenged, but, rather, how the witnesses knew

    22 that he was there until 10 a.m., when some of them did

    23 not have watches and so on.

    24 However, I believe that several witnesses,

    25 both for the Prosecution and the Defence, who talked

  120. 1about the way these events took place, confirmed that

    2 the shooting stopped, the gunfire stopped, at 10 a.m.,

    3 and this is when Vlatko Kupreskic first left the

    4 shelter, as these witnesses say.

    5 The attack on the Pezer family took place and

    6 finished between 8.30 and 9.00 a.m. at a place which is

    7 two kilometres distance from this shelter.

    8 The witnesses who testified with respect to

    9 these circumstances were selected among the hundreds of

    10 people who were in the shelter on that day, and this

    11 was no accident. They were summoned because Witness I

    12 mentioned them as people he saw entering Jozo Vrebac's

    13 shelter on that day.

    14 This witness stated that between 7.00 and

    15 8.00 he was observing from his house the Croats

    16 entering Jozo Vrebac's house, and all the persons he

    17 listed and who were able to come to this court were

    18 called by us to testify to the fact that Vlatko

    19 Kupreskic was in the shelter.

    20 We consider that it has been established

    21 beyond doubt that Vlatko Kupreskic was in the shelter

    22 at this time, which means he could not have

    23 participated in the attack on the Pezer family.

    24 This is the first line of the Defence of

    25 Vlatko Kupreskic.

  121. 1The second line of Defence was to establish

    2 the direction in which the Pezer family was moving at

    3 the time they were attacked, and the spot where Fata

    4 Pezer was killed and Dzenana Pezer wounded.

    5 The Prosecution claims that this group was

    6 moving from their house or, rather, from the shelter,

    7 along a path towards the woods in front of Vlatko

    8 Kupreskic's house, and that this is where they were

    9 attacked.

    10 This direction lies to the north of the wood

    11 and the hill separating Lower Ahmici from Upper Ahmici,

    12 and there are some points along that route which can be

    13 seen from Vlatko Kupreskic's house.

    14 On the contrary, the Defence has established

    15 that the Pezer family were moving from Ismail Pezer's

    16 house, along a path on the south side, and that they

    17 were attacked on a part of the path which is behind a

    18 hill, when viewed from the accused's house, and that

    19 this hill obstructs the view.

    20 The Prosecution examined Witnesses Q, P, R, S

    21 and T. These witnesses are all members of the same

    22 family and they are very closely related. Their

    23 testimonies are, in our opinion, contradictory and

    24 prejudiced. They are not identical as regards their

    25 route, the point at which they entered the wood, the

  122. 1configuration of the terrain along which they passed,

    2 the places where they were wounded, and everything else

    3 they said in their previous statements made to other

    4 organs.

    5 Why do we consider the statements of these

    6 witnesses to be prejudiced? For the simple reason that

    7 we believe they want to support the statement made by

    8 Witness Q. Witness Q is the only one who accused

    9 Vlatko Kupreskic of the murder of Fata Pezer, thus

    10 drawing his entire family into this case, not leaving

    11 it open to them to give any other kind of testimony;

    12 otherwise, he would be accused of giving false

    13 evidence. That is why they were not impartial before

    14 this Court.

    15 The Prosecutor brought along a family which

    16 testified, but they also summoned Witness II, who

    17 claimed to have found the wounded Pezers near the top

    18 of the hill, but this witness also says that they were

    19 on the south side of the hill, and this place could not

    20 be seen from Vlatko Kupreskic's house. He said it was

    21 near the top of the hill in an attempt to support the

    22 statement given by Witness Q, who said that he dragged

    23 Fata Pezer's body toward the south side, which was

    24 sheltered.

    25 Witness II was unable to confirm before this

  123. 1Court that there were any wounds or any -- there was

    2 nothing on Fata Pezer's clothing to indicate that she

    3 was dragged over this terrain, and this witness, when

    4 cross-examined, was unable to dispute the testimony of

    5 other witnesses who had also seen the place where Fata

    6 Pezer's body lay. Among these witnesses was his

    7 brother, Witness CG. They all said that the body was

    8 considerably lower down, not near the top of the hill,

    9 thus excluding the possibility that the body was

    10 dragged down. There would have been no reason to drag

    11 the corpse downhill when Fata Pezer was already dead.

    12 The Prosecution presented another piece of

    13 evidence in favour of the thesis that the event took

    14 place where the Prosecution claims, and that is a place

    15 that is visible from Vlatko Kupreskic's house. That

    16 evidence is the allegation of Witness Q; we have that

    17 witness again, who, six years after the event,

    18 allegedly found some personal belongings of his near

    19 the top of the hill and claims that they were things

    20 that belonged to members of his family. The Defence

    21 considers this evidence totally unacceptable for a

    22 number of reasons.

    23 In the first place, not one of those objects

      1. can be said, without any doubt, to belong to the (redacted)

    25 family. By their nature, those objects could belong to

  124. 1anyone or everyone. Furthermore, the traces of damage

    2 on those objects vary so much that it is clear that all

    3 those objects had not been in one place together

    4 throughout that time; namely, some things were charred,

    5 some were damaged, some were undamaged, and this cannot

    6 be the case if they were in the same bag, as claimed by

    7 Witness Q; not to say that even some objects had parts

    8 missing, and where were those parts if those objects

    9 were in one place all the time, et cetera? The area

    10 where these things are found is a wood, exposed to the

    11 climate, felling of trees, refugees passing by.

    12 All this shows that we cannot, under any

    13 circumstances, accept the allegation that those things

    14 had not been moved, that they were in one spot, and

    15 that they all belonged to the (redacted) family. Such

    16 evidence can be very seriously criticised, ranging from

    17 the way in which they were found onwards. So we are

    18 sure that this Court will reject this evidence as not

    19 credible.

    20 Therefore, on the basis of biased and

    21 contradictory statements by members of one and the same

    22 family, who experienced a very great personal tragedy

    23 on the 16th of April, which makes them less objective

    24 and absolutely negatively disposed towards their Croat

    25 neighbours, and the absolutely unacceptable evidence of

  125. 1the objects found, these were used by the Prosecution

    2 to prove the movement of the (redacted) family and the way

    3 in which they were wounded or killed.

    4 Contrary to this, the Defence, for these same

    5 events, produced the following evidence:

    6 We examined witnesses who, on the critical

    7 occasion, were in same group with the Pezer family, one

    8 of whom was wounded as a victim of the same act as

    9 Dzenana Pezer and Fata Pezer. We examined an

    10 eyewitness of the attack on the Pezer family. We

    11 examined witnesses who saw where the body of Fata Pezer

    12 lay. We presented expert witnesses in ballistics,

    13 forensic medicine, and geometry.

    14 On the basis of this evidence, the Defence

    15 believes that the direction of the movement stated by

    16 the Prosecution has been rebutted and that it has been

    17 proven that the Pezer family, from the time the attack

    18 started, was moving along the southern slope of the

    19 wood and could not have been directly hit from the

    20 direction of Vlatko Kupreskic's house.

    21 Let us briefly review the evidence presented

    22 by the Defence. On the critical occasion, in the same

    23 group with the Pezer family were a number of other

    24 persons, including Court Witnesses CF and CE. These

    25 are witnesses of Muslim nationality who do not

  126. 1personally know Vlatko Kupreskic, and on the 16th of

    2 April, 1993, they were running for their lives in the

    3 same way as the Pezer family, moving with them in the

    4 same group.

    5 Witness CF, the witness we heard here, was

    6 wounded in the same shooting, at the same moment as

    7 Dzenana and Fata Pezer, and almost on the same spot, at

    8 a distance of only a few metres. Testifying in court

    9 and with a videotape, he described in detail the way

    10 and direction of movement of the group, where and how

    11 he was wounded, where and how Dzenana was wounded, and

    12 where and how Fata Pezer was killed. In his testimony,

    13 he said that the group was going along the lower side

    14 of the wood, on the southern side -- that is not

    15 visible from Vlatko Kupreskic's house -- that they were

    16 wounded with explosive ammunition that ricocheted from

    17 the trees and the forest. He saw the place where

    18 Dzenana Pezer was wounded and where Fata Pezer lay, and

    19 he has shown that place on the ground. He was a Court

    20 witness.

    21 Court Witness CE, a Muslim, the wife of

    22 Witness CF, who was moving with their son in the same

    23 group, described, in the same way as Witness CF, the

    24 direction of movement and the place of attack,

    25 confirming in its entirety the videotape on which CF

  127. 1indicates the critical spots.

    2 Therefore, two immediate eyewitnesses,

    3 victims who are absolutely impartial, who do not know

    4 the accused, Muslims, CF, who was himself wounded,

    5 claim something quite to the opposite than the

    6 Prosecution witnesses regarding the direction of

    7 movement and the way of wounding. They have no reason

    8 to help the accused, nor do they have any reason to

    9 support the testimony of Witness Q. They were free to

    10 testify the truth, and the Defence considers their

    11 testimonies to be absolutely credible and irrefutable.

    12 So those were actual participants and victims of the

    13 attack.

    14 Witness CG was also heard as an eyewitness

    15 because he was observing the event from in front of his

    16 position. He was attracted by their screams and calls

    17 for help when they were wounded. Where did CG see the

    18 event taking place? Exactly where Witnesses CF and CE

    19 said that the attack had occurred. Witness CG showed

    20 on the videotape from where he was watching and where

    21 he saw the wounding of the Pezers. This is a position

    22 from which Vlatko Kupreskic's house cannot be seen, as

    23 it is behind the hill. Witness CG is a Muslim from

    24 Ahmici, and we consider his testimony to be of special

    25 relevance.

  128. 1Three witnesses were heard in connection with

    2 the discovery of Fata Pezer's body on the day of the

    3 event and later. Those witnesses marked the position

    4 where they saw the body.

    5 The first of those witnesses was Prosecution

    6 Witness F. This Prosecution witness, in his testimony,

    7 said that on the 16th of April, 1993, he himself had

    8 suffered a grave tragedy and that, as he was passing

    9 through the woods, he came across the body of Fata

    10 Pezer. Where was the body? It was on the southern

    11 side of the wood, roughly near the place marked as the

    12 place of the killing of Fata Pezer by Court

    13 Witness CF. From that position, Vlatko Kupreskic's

    14 house cannot be seen. Here again, we have a Muslim

    15 witness who was a victim and a Prosecution witness, who

    16 certainly has no reason to support the Defence by

    17 pointing to the place where the body of Fata Pezer

    18 lay.

    19 Court Witness CH, a Muslim and a victim, who,

    20 together with a group of 10 to 15 other civilians from

    21 Ahmici, on that same day, several hours after the

    22 killing of Fata Pezer, passed along the southern side

    23 of the hill and the wood, along the path that goes from

    24 the Pezer houses to the shelter in Upper Ahmici, and

    25 who saw, along the path, the body of Fata Pezer.

  129. 1Where did she see the body? Roughly in the

    2 same spot as Witness F and Court Witnesses CF and CG.

    3 The testimony of this witness and the place she

    4 indicated on the videotape can be checked through the

    5 testimony of 10 to 15 people who were moving along with

    6 her, and we consider this testimony to be irrefutable.

    7 Witness Stipan Vidovic, a Croat from Ahmici,

    8 some ten days after the event, heard that there was a

    9 body in the wood, and he went to see who it was and to

    10 do something about it. He came across the body of Fata

    11 Pezer, notified the Red Cross, who then removed the

    12 body.

    13 Where did Stipan Vidovic find the body? On

    14 roughly the same place as the witnesses that we have

    15 mentioned so far. On the videotape, he showed that

    16 place in the wood.

    17 Therefore, a number of independent witnesses,

    18 including Prosecution witnesses, describing the

    19 different experiences, are unanimous in indicating the

    20 place where they saw the body of Fata Pezer. The place

    21 where they saw the body corresponds to the place marked

    22 by Court Witness CF as the place where he was wounded,

    23 where Dzenana Pezer was wounded, and where Fata Pezer

    24 was killed. The differences are a couple of metres,

    25 but it is always on the southern slope of the hill that

  130. 1is not visible from Vlatko Kupreskic's house.

    2 Not only does the position of the body

    3 exclude the possibility of direct hits from the

    4 direction of Vlatko Kupreskic's house, but it

    5 absolutely eliminates the possibility that the body

    6 could have been dragged to that place from the top of

    7 the hill. Because of the inaccessibility of the

    8 terrain, the steep slope, the bumpy terrain, the

    9 thicket, the wood, all this makes it impossible to move

    10 a body, or to carry it, without visible injuries being

    11 made on the body.

    12 Something else that excludes the possibility

    13 of the body having been dragged from the top of the

    14 hill to the position where the witnesses saw the body:

    15 It makes absolutely no sense that anyone who is in

    16 mortal danger from the ongoing attack should drag a

    17 body of another person from one place to another on a

    18 difficult terrain, at some distance, after having

    19 established that the person is already dead and beyond

    20 help, and has next to him a wounded daughter who needs

    21 help. To act in this way would be quite illogical.

    22 The Defence took pains to establish the

    23 position of the body to prove their submission that the

    24 body remained at the place where they were attacked --

    25 that is, that it wasn't moved -- and also to prove the

  131. 1path taken by the Pezers and the impossibility of them

    2 being attacked in the way claimed by the Prosecution.

    3 To compare the testimonies of all these

    4 witnesses who spoke about the position of the body, and

    5 to see whether they were talking about the same spot,

    6 we had expert testimony. On the basis of the testimony

    7 of the witness, this expert established the places on

    8 the ground and established that there is no optical

    9 visibility from any of those spots towards Vlatko

    10 Kupreskic's house, that all those places are at the

    11 same level, and that the distance between them is only

    12 a couple of metres.

    13 Expert witnesses Josip Skavic and Damir

    14 Catipovic performed a combined ballistic and forensic

    15 expertise in order to establish the mechanism and means

    16 with which Dzenana Pezer and Witness CF were wounded

    17 and where Fata Pezer were killed.

    18 What does these expert witnesses establish?

    19 They establish that the injuries of Dzenana Pezer and

    20 Witness CF could not have been inflicted in the way

    21 claimed by the indictment and Witness Q, because

    22 Dzenana Pezer's injury was inflicted on her right side

    23 and Witness CF's from above and from the front, none of

    24 which fits into the thesis of the possibility of a

    25 direct hit from the direction of Vlatko Kupreskic's

  132. 1house at the column that had their backs turned to it

    2 and a hill on their right.

    3 Contrary to this, the findings of these two

    4 experts fully corroborate the mechanism of the wounding

    5 and the means of wounding as described in his testimony

    6 by Court Witness CF, and they eliminate the possibility

    7 of the column having been injured in the way described

    8 by Prosecution witnesses.

    9 When we review all the evidence that the

    10 Defence presented to prove the direction of movement of

    11 the Pezer group and the place of wounding and the

    12 killing of group members, we are of the opinion that

    13 there can be no doubt regarding what has been

    14 established, because all this evidence complements one

    15 another, although they were provided by a number of

    16 totally independent witnesses and experts.

    17 We consider the place of wounding to have

    18 been established in the lower section of the hill, on

    19 the southern side from where Vlatko Kupreskic's house

    20 cannot be seen, and where no one can be hit with direct

    21 shots coming from the direction of Vlatko Kupreskic's

    22 house.

    23 Through the evidence reviewed so far, it is

    24 our submission that the Defence has proven two things:

    25 First, that Vlatko Kupreskic was not at the scene of

  133. 1the crime at the critical time; and second, that the

    2 Pezers could not have been wounded by shots fired from

    3 his house. Nevertheless, the Defence has devoted

    4 special attention to checking the credibility of

    5 Witness Q's statement and, in that respect, the

    6 statements of the other members of his family who

    7 appeared as Prosecution witnesses.

    8 The testimony of Witness Q is particularly

    9 interesting, as this witness was the only one of all

    10 the witnesses examined in these proceedings to have

    11 alleged that the accused, Vlatko Kupreskic,

    12 participated in the events of the 16th of April 1993,

    13 and that he himself saw him standing with a group of

    14 soldiers, shooting at Fata Pezer and the others.

    15 The entire indictment against Vlatko

    16 Kupreskic is based on this testimony for counts 12 to

    17 15 and, in the opinion of the Defence, also for Count

    18 1, because the indictment has been drafted in such a

    19 way that should the counts 12 to 15 be proven, they

    20 automatically prove Count 1 as well.

    21 So let us see exactly what Witness Q said.

    22 He said that he turned around for a moment and saw, at

    23 a distance of about 50 to 60 metres, the accused Vlatko

    24 Kupreskic in that particular group.

    25 The Prosecution investigator, Mr. Tucker,

  134. 1afterwards measured the distance and found it to be 53

    2 metres.

    3 If we consider Witness Q's testimony, we can

    4 see that at the same time, the same place, the members

    5 of his family were there too, namely, Witnesses R, S,

    6 P, and T. Did any of them see Vlatko Kupreskic? No

    7 one did. Were they looking in the same direction as

    8 Witness Q did? Almost all of them looked the same way,

    9 but nobody saw Vlatko Kupreskic.

    10 Did Q tell any of them or anyone at all on

    11 that day or later that he saw Vlatko killing members of

    12 his family? No, he did not. Except to the Bosnian

    13 police and the Court.

    14 Dozens of witnesses were heard, Prosecution

    15 witnesses, who were in the immediate vicinity of Vlatko

    16 Kupreskic's house almost throughout the day of the 16th

    17 of April. They were either hiding with the intention

    18 of running away further later, or whatever.

    19 Practically all the persons who were in front of Vlatko

    20 Kupreskic's house, they saw soldiers, they saw

    21 civilians. They identified Franjo Kupreskic as a

    22 civilian. They saw soldiers whom they could not

    23 recognise. One witness mentioned the names that they

    24 used -- that they called out to one another.

    25 How come no one ever saw Vlatko Kupreskic

  135. 1there? How is it possible that only Witness Q saw

    2 him? How come that his brother, Witness S, who on the

    3 same occasion stood together with him, turned around in

    4 the same direction, looked in that direction and heard

    5 later from him that it was Vlatko? How come that

    6 Witness S did not believe him? How come that he did

    7 not confirm what his brother had said?

    8 He who was there at the same time, at the

    9 very same place, he is not able to believe the

    10 statement of his brother, that it was Vlatko who was

    11 there. Why would the Court believe him?

    12 I believe that this seriously brings into

    13 question this particular statement. There was shooting

    14 taking place from Vlatko's house that day and it was

    15 only logical to hold the owner of that house

    16 accountable for that.

    17 And now another question that remains hanging

    18 in the air all the time. Why would these witnesses

    19 charge Vlatko Kupreskic with that? Why would they

    20 present false accusations, et cetera?

    21 Yesterday the Prosecutor said that conspiracy

    22 was not proven of witnesses who had the intention of

    23 falsely accusing the persons accused who are sitting

    24 here. I believe that the answer is simpler than that.

    25 It is revenge.

  136. 1These witnesses of the Prosecution come to

    2 this Tribunal to avenge their dead. They are not

    3 coming to seek justice. That's a simple motive.

    4 In a way, it is understandable. They want to

    5 take revenge on their Croat neighbours. That is

    6 unimportant now -- I mean, whether it is Vlatko or some

    7 other neighbour.

    8 So that is the answer to "how come?" That is

    9 to say the wish for revenge overrode the wish for

    10 justice. That is the motive that could have

    11 prevailed.

    12 However, in spite of all of that, we assessed

    13 Witness Q's testimony even if it were to be assumed

    14 that everything happened exactly the way he had said it

    15 did.

    16 We asked an expert, Professor Wagenaar,

    17 whether it was possible from a 50 metre or so distance

    18 to recognise a person whom one knew. We heard

    19 Professor Wagenaar's testimony. The answer is that

    20 such recognition would be absolutely unreliable and

    21 unacceptable from a scientific point of view.

    22 So what can we say about the evidence

    23 concerning counts 12 through 15 of the indictment?

    24 Even if the offence had not proven anything

    25 else, if all the options presented by the Prosecutor

  137. 1were to be accepted, the only thing that would remain

    2 as evidence against Vlatko Kupreskic would be the

    3 testimony of Witness Q, a testimony that is

    4 scientifically unacceptable.

    5 For all these reasons, the Defence for the

    6 accused Vlatko Kupreskic believes that the presented

    7 Defence evidence has totally rebutted the allegations

    8 from the indictment, and that the accused Vlatko

    9 Kupreskic has to be acquitted of charges on these

    10 counts.

    11 Finally, you will allow me to point out a

    12 very illogical point regarding the accusation levelled

    13 against Vlatko Kupreskic, and I am certain that the

    14 Court noticed this as well. And I am sure that this

    15 requires special explanation.

    16 Namely, the indictment states that at this

    17 critical moment, together with Fata and Dzenana Pezer,

    18 a woman had been hit and wounded too. As for the

    19 wounding of this woman, Vlatko Kupreskic is not being

    20 charged with anything. Why would there be such a

    21 situation in the indictment, that Vlatko Kupreskic

    22 should be forgiven to grave crimes?

    23 The point is that there is no woman who was

    24 wounded. It is Court Witness CF who was wounded. That

    25 is a fact that no one has denied.

  138. 1The Prosecutor is not charging Vlatko

    2 Kupreskic with the wounding of Witness CF for only one

    3 reason. He would have to prove that CF was wounded at

    4 the same place, at the same time when Fata and Dzenana

    5 Pezer were shot and wounded. Then he would have to

    6 call Witness CF, and that would bring down the

    7 accusation, the indictment, because it would be

    8 ascertained that this is a completely different place.

    9 And how could that be the responsibility of Vlatko

    10 Kupreskic?

    11 We are aware of the fact that the Prosecutor

    12 has the right to rebut what the Defence is saying, but

    13 I am sure that the Trial Chamber is going to appreciate

    14 this fact when considering counts 12 through 15.

    15 So the final and only proposal of the Defence

    16 is that the accused Vlatko Kupreskic be acquitted with

    17 regard to all counts in the indictment, because it has

    18 not been proven that he committed the crimes that he

    19 has been charged with in the indictment.

    20 I also wish to note that today the Defence

    21 presented to the Registry a request for the provisional

    22 release of Vlatko Kupreskic, believing that there are

    23 special reasons for that, in terms of Rule 65 of the

    24 Rules of Procedure and Evidence.

    25 We have submitted this request in writing, so

  139. 1I shall not elaborate on it right now, but I do ask the

    2 Court, in the light of all those reasons and all the

    3 other circumstances involved in this case, to make it

    4 possible for Vlatko Kupreskic to remain at liberty

    5 until a final ruling is made by this Court.

    6 I thank you.

    7 JUDGE CASSESE: Thank you. We adjourn now

    8 until tomorrow at 9.00.

    9 --- Whereupon hearing adjourned at

    10 2.00 p.m. to be reconvened on Thursday,

    11 the 11th day of November, 1999.