Tribunal Criminal Tribunal for the Former Yugoslavia

Page 118

1 Tuesday, 23 March 2004

2 [Appeal Proceedings]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 9.40 a.m.

6 JUDGE SHAHABUDDEEN: Good morning. Madam Registrar, will you

7 please call the case next on the list.

8 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honours.

9 This is case number IT-98-30/1-A, the Prosecutor versus Miroslav Kvocka,

10 Mladjo Radic, Zoran Zigic, and Dragoljub Prcac.

11 JUDGE SHAHABUDDEEN: Thank you. Now I must, in the usual way,

12 test the equipment. So, ladies and gentlemen, can you hear me? Firstly,

13 interpreters? Yes.


15 JUDGE SHAHABUDDEEN: The appellants. How will we do that?

16 Mr. Simic, you first.

17 MR. K. SIMIC: [Interpretation] Yes, Your Honour.

18 JUDGE SHAHABUDDEEN: Your colleagues. Yes, they hear me. In the

19 Prosecution? Yes. Yes.

20 Now, the appearances for the parties. Will you please tell me

21 who is appearing for whom.

22 MR. K. SIMIC: [Interpretation] Your Honours, good morning. My

23 name is Krstan Simic. I'm appearing on behalf of Miroslav Kvocka.

24 MR. FILA: [Interpretation] Good morning, Your Honour. My name is

25 Toma Fila, defending Mladjo Radic.

Page 119

1 JUDGE SHAHABUDDEEN: We're not getting the interpretation--

2 THE INTERPRETER: Can you hear interpreting into English? Is

3 there anything on channel 4?

4 JUDGE SHAHABUDDEEN: Yes. Thank you very much.

5 And the third gentleman.

6 MR. J. SIMIC: [Interpretation] Good morning, Your Honour. Jovan

7 Simic, attorney-at-law, appearing for Dragoljub Prcac.

8 MR. STOJANOVIC: [Interpretation] Your Honours, good morning. My

9 name is Slobodan Stojanovic, attorney-at-law from Belgrade, appearing for

10 the accused Zoran Zigic.

11 JUDGE SHAHABUDDEEN: Good. Thank you very much.

12 And now for the Prosecution.

13 MR. CARMONA: Good morning, Your Honours. My name is Anthony

14 Carmona, and I appear on behalf of the Prosecution. Appearing on the

15 Prosecution -- with me is Ms. Norul Rashid, Ms. Helen Brady, Ms. Kelly

16 Howick, and Mr. David Re. Mr. David Re will be conducting the

17 examination of the particular witness on behalf of the Prosecution.

18 Thank you very much.

19 JUDGE SHAHABUDDEEN: Now, good. I propose now to make a brief

20 introductory statement before we proceed with the hearing of the witness

21 in this case. The case before us today is Prosecutor against Miroslav

22 Kvocka, Mladjo Radic, Zoran Zigic, and Dragoljub Prcac.

23 The case at first instance had five co-accused persons. All five

24 were convicted at the close of the trial on 2nd November 2001. One of

25 those convicted, namely, Mr. Kos, filed his notice of appeal on 16th

Page 120

1 November 2001, but he withdrew it on 21st May 2002, and he was

2 subsequently released by the Tribunal.

3 Now, the Trial Chamber convicted each of the appellants of

4 persecution, murder, and torture, and also the Appellant Zigic of cruel

5 treatment as well. These crimes are recognised in Articles 3 and 5 of

6 the Statute.

7 The appellants filed notices of appeal between 13 and 16 November

8 2001. The Prosecution did not appeal.

9 Now, during the appellate proceedings, four motions were filed

10 pursuant to Rule 115 of the Rules of Procedure and Evidence, seeking to

11 admit additional evidence on appeal. The Appellant Prcac filed his Rule

12 115 motion on 25 February 2003, with an addendum on 10th March 2003. The

13 Appellant Radic filed his Rule 115 motion on 25 February 2003, and an

14 addendum on 2nd March 2003. The Appellant Zigic filed his first Rule 115

15 motion on 22 August 2002, with an addendum on 13 June 2003. He filed a

16 second Rule 115 motion on 11th April 2003, with a supplement on 19th May

17 2003.

18 On 16 February 2004, that is, last month, the Appeals Chamber

19 issued a decision on the Rule 115 motions. It granted only in part the

20 motions filed by the Appellant Zigic, while it dismissed the rest of the

21 submissions by the appellants.

22 Two additional witnesses were ordered by the Appeals Chamber,

23 under Rules 98 and 107 of the Rules of Procedure and Evidence of this

24 Tribunal. They were ordered to appear on the hearing in this appeal

25 scheduled on that day for 23rd March 2004. The Scheduling Order which

Page 121

1 prescribed that also ordered the Prosecution to file any rebuttal

2 material by 27 February 2004, and the appellant to file -- the appellant

3 to respond to such material by 5 March 2004, and the Prosecution to reply

4 by 10 March 2004.

5 The Prosecution filed its rebuttal material on 27 February 2004.

6 The Appellant Zigic responded on 8 March 2004. Then the Prosecution

7 replied on 11 March 2004. By decision of 12 March 2004, both the

8 Appellant Zigic and the Prosecution were granted extensions of time for

9 the respective filings. The decision of 12 March 2004 also found

10 admissible as rebuttal material the evidence contained in the witness

11 statements submitted by the Prosecution.

12 Now, by order of 26th February 2004, Appeals Chamber directed the

13 Victims and Witness Section to make arrangements for the additional

14 witnesses to appear before the Appeals Chamber today, on 23rd March 2004.

15 According to their information, Witness KV1, that is, one of the

16 two witnesses, was willing to come to testify before the Appeals Chamber,

17 but the other witness was reluctant to do so. A subpoena was issued on

18 11 March 2004 to the second witness. Despite the efforts of the Chamber,

19 it has not been able to secure his appearance today. However, the

20 Appeals Chamber will take appropriate steps to arrange for his testimony

21 to be given, if possible, after the hearings for this week.

22 As the rebuttal evidence is concerned only with the additional

23 evidence to be given by the second additional witness, we will not have

24 any rebuttal witnesses today, but we will have them at a later stage, if

25 and when we can secure the appearance of the second additional witness.

Page 122

1 For today's evidentiary hearing, there is, therefore, only Witness KV1 to

2 be heard by this Chamber.

3 Pursuant to the Scheduling Order of 19 March 2004, as amended by

4 the Scheduling Order of 22 March 2004, the Appeals Chamber will first

5 direct questions to Witness KV1. Following the questioning by the

6 Chamber, the Appellant Zigic and the Prosecution will have 30 minutes to

7 examine the witness. Of course, the Judges will also ask questions.

8 The Appellant Zigic and the Prosecution are reminded that this is

9 not a new trial. Further, I would remind them that they will be given an

10 opportunity to present arguments on the weight and credibility of the

11 evidence given today by Witness KV1 in the course of their final

12 arguments.

13 Finally, the parties are reminded that they are not allowed to

14 contact the witness out of court at any time during his testimony.

15 Unless there are any questions, we will now proceed.

16 [The witness entered court]

17 JUDGE SHAHABUDDEEN: Good morning, Witness. Can you hear me?

18 THE WITNESS: [Interpretation] Yes.

19 JUDGE SHAHABUDDEEN: Now, could you please read the solemn

20 declaration which will be given to you by the usher.


22 [Witness answered through interpreter]

23 THE WITNESS: [Interpretation] I solemnly declare that I will

24 speak the truth, the whole truth, and nothing but the truth.

25 JUDGE SHAHABUDDEEN: Thank you very much. You may sit down.

Page 123

1 Now, I should explain that by order dated 18th March 2004, this

2 witness was granted the pseudonym of KV1, as well as facial distortion.

3 I would remind all parties to use this pseudonym at all times during this

4 hearing, and since I'm prone, first of all, to forget that Rule, I remind

5 myself also of it. If there is any accident, then the registrar will

6 please draw that to our notice so that we may make an immediate

7 correction of the text.

8 Well, now, Madam Registrar, will you please show the witness his

9 name and his date of birth on a piece of paper. I believe you have

10 already shown it to the parties.

11 THE REGISTRAR: Yes, Your Honour.

12 THE WITNESS: [Interpretation] That's it.

13 JUDGE SHAHABUDDEEN: We are concerned to protect your identity,

14 and therefore, we will refer to you throughout as Witness KV1.

15 Now, I will begin the questioning. My colleagues on the Bench

16 will join in, and the parties will also ask you questions.

17 Questioned by the Court:

18 JUDGE SHAHABUDDEEN: Now, you are from where, Witness?

19 A. I am from Prijedor. I was born in Kljuc, but I lived in

20 Prijedor.

21 JUDGE SHAHABUDDEEN: Now, did you know a man by the name of Drago

22 Tokmandzic?

23 A. Do you mean Drago Tokmandzic?

24 JUDGE SHAHABUDDEEN: That's correct. Do forgive me for my

25 execrable pronunciation. It is to that gentleman that I'm referring. Is

Page 124

1 he still alive or has he passed away?

2 A. He has passed away.

3 JUDGE SHAHABUDDEEN: Now, we want you to help us to understand

4 the circumstances in which he passed away. Can you remember when, about

5 when he passed away?

6 A. I cannot remember the exact date, but I know that he died in

7 Keraterm.

8 JUDGE SHAHABUDDEEN: Keraterm was what at the time?

9 A. It was a camp in Prijedor.

10 JUDGE SHAHABUDDEEN: Were you there?

11 A. Yes.

12 JUDGE SHAHABUDDEEN: As what were you there?

13 A. I was a detainee, a prisoner there.

14 JUDGE SHAHABUDDEEN: And you arrived there when? Can you tell?

15 A. On 31st of May, or was it April? I'm not quite sure any more.

16 JUDGE SHAHABUDDEEN: And when, or about when, did you leave?

17 A. On the 5th of August, precisely.

18 JUDGE SHAHABUDDEEN: Now, where did you stay in the camp?

19 A. At the outset, I was in room number 2, then in room number 1, and

20 then I spent the bulk of my time in room number 4.

21 JUDGE SHAHABUDDEEN: Could you help us to understand how the

22 rooms were situated. Were there a number of rooms in the same building?

23 A. There were four rooms.

24 JUDGE SHAHABUDDEEN: 1, 2, 3, and 4.

25 A. Yes.

Page 125

1 JUDGE SHAHABUDDEEN: Now, you told us where you were. And where

2 was Tokmadzic?

3 A. Mr. Tokmadzic, when he was brought there, was immediately put in

4 room number 4.

5 JUDGE SHAHABUDDEEN: Now, you said, I think, that you remembered

6 his passing away. Could you tell the Chamber what you recall about that,

7 in your own words.

8 A. That evening, Banovic, together with Keli - I know that - called

9 out Tokmadzic's name, Islamovic, Kljaic, Mesic. I can't remember all of

10 those whose names were called out, but I know there were quite a few of

11 them. They were taken outside. They were beaten up. After some time,

12 some of them were brought back. Drago Tokmadzic was already dead when

13 they threw him back into the room.

14 JUDGE SHAHABUDDEEN: Now, from where you were in your room, to

15 where this beating happened, could you tell us what the distance was.

16 A. A few metres.

17 JUDGE SHAHABUDDEEN: Did you hear any voices during the beating?

18 A. Yes.

19 JUDGE SHAHABUDDEEN: Were you able to identify these voices?

20 A. Yes. That of Banovic and Keli. I'm sure I also heard Goran

21 Lajic.

22 JUDGE SHAHABUDDEEN: Did you hear any other voices?

23 A. There were many sounds, and there may have been some that I

24 didn't register. But I did register the ones that were familiar to me.

25 JUDGE SHAHABUDDEEN: Now, did you hear any reference to a pig?

Page 126

1 Did anybody use the word "pig"?

2 A. I don't remember that. I can't recall.

3 JUDGE SHAHABUDDEEN: Did anybody use the words "finish him off"?

4 A. I don't know that either.

5 JUDGE SHAHABUDDEEN: Did you see a man called Edin Ganic?

6 A. Not at that time.

7 JUDGE SHAHABUDDEEN: Was he a prisoner in the camp?

8 A. I can't recall, but I'm sure he wasn't in my room, number 4.

9 JUDGE SHAHABUDDEEN: Now, in your room, there were some other

10 people. Were there some people from Puharska?

11 A. Yes.

12 JUDGE SHAHABUDDEEN: I may not be pronouncing the word correctly.

13 A. Yes. Yes, there were. Most of them were from Puharska.

14 JUDGE SHAHABUDDEEN: Now, did you hear a vehicle arriving?

15 A. No, although vehicles did frequently arrive, but I'm not sure.

16 JUDGE SHAHABUDDEEN: Did you hear these people from Puharska

17 saying anything about who was coming?

18 A. The only thing I remember is I know that when Kajin arrived, then

19 the beatings would stop. He probably didn't permit that.

20 JUDGE SHAHABUDDEEN: Now, I would invite you to look at a piece

21 of paper. It has a name on it. That is a name of a protected witness.

22 I just want you to look at the paper and to tell the Court if you knew

23 that this man was also a prisoner in the camp. Don't call his name,

24 please.

25 A. I remember the last name. I'm not sure about his first name,

Page 127

1 though.

2 JUDGE SHAHABUDDEEN: Will the usher please show the gentlemen at

3 the bar.

4 A. Yes, he was there.

5 [Appeals Chamber and registrar confer]

6 JUDGE SHAHABUDDEEN: So you say that Witness Y was also a

7 prisoner in the camp?

8 A. I'm not saying precisely that he was in that room. I know there

9 was someone of that last name there, but I cannot confirm the first name.

10 JUDGE SHAHABUDDEEN: Okay. Fine. Thank you. Now, one last

11 question, or set of questions. Did you know a man by the name of Zoran

12 Zigic?

13 A. Yes, I did.

14 JUDGE SHAHABUDDEEN: Now, did you see him during your stay in the

15 camp?

16 A. Yes, I did.

17 JUDGE SHAHABUDDEEN: Did you see him at the time when Tokmadzic

18 was killed?

19 A. I really didn't see him on that day.

20 JUDGE SHAHABUDDEEN: If you saw him now, would you recognise him?

21 I'm talking about Mr. Zigic.

22 A. Yes.

23 JUDGE SHAHABUDDEEN: Have you seen him recently anywhere?

24 A. Well, not until just a little while ago.

25 JUDGE SHAHABUDDEEN: So you saw him a little while ago. Where is

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13 English transcripts.













Page 129

1 that?

2 A. Here, to my left side, in the first row, between those two

3 policemen.

4 JUDGE SHAHABUDDEEN: Thank you very much. Thank you.

5 My colleagues will ask you some questions.

6 JUDGE POCAR: Just a couple of clarifications, Witness KV1. In

7 answering to the Presiding Judge, you said that when the beating of

8 Mr. Tokmadzic occurred, you heard a number of voices. Among them, you

9 mentioned the voice of Mr. Lajic; is that correct?

10 A. Yes.

11 JUDGE POCAR: Well, can you tell us whether, from the voice, from

12 his voice, you can assess that he was actually beating Mr. Tokmadzic?

13 A. I don't know who was beating who that night, but I did hear his

14 voice. There were several people outside who were beaten up.

15 JUDGE POCAR: So you cannot say whether he personally was

16 beating?

17 A. No.

18 JUDGE POCAR: I thank you. That's all I wanted to know.

19 JUDGE SHAHABUDDEEN: Judge Guney. Judge Guney will ask some

20 questions.

21 JUDGE GUNEY: [Interpretation] Witness, you've spoke of many

22 beatings, and you heard in the course the voice of Ganic. Could you tell

23 us: What was the role played by Mr. Ganic, if you could make it out, of

24 course, in those beatings?

25 A. I spoke about Goran Lajic, that I heard his voice, not the voice

Page 130

1 of Ganic.

2 JUDGE GUNEY: [Interpretation] Yes. But given that you've just

3 told us that you had known him for a period of time - I'm talking of

4 Zoran Zigic - did you hear the voice of Mr. Zoran Zigic in the course of

5 the beatings?

6 A. No.

7 JUDGE GUNEY: [Interpretation] In what state was the corpse of

8 Mr. Tokmadzic when it was thrown into your room?

9 A. He was dead. It was dark. We couldn't really get a good look at

10 him. But I do know that he was dead.

11 JUDGE GUNEY: [Interpretation] Did you notice traces of torture,

12 beatings, even if it was dark?

13 A. Not at that time. We couldn't see anything. We just realised

14 that he wasn't breathing, that he was no longer living. That's all.

15 JUDGE GUNEY: Thank you, Witness KV1.

16 JUDGE SHAHABUDDEEN: Judge Weinberg de Roca will ask some

17 questions now.

18 JUDGE WEINBERG DE ROCA: Thank you. I have a few questions. Who

19 called on that -- the detainees that were then later beaten?

20 A. Banovic and Keli.

21 JUDGE WEINBERG DE ROCA: Did you -- how many people were called?

22 A. I can't remember the exact number. There were quite a few of

23 them. I know that Tokmadzic and Eso -- the policeman who was brought in

24 with him, and Lajic and Mesic, and an Albanian. Their names were called

25 out. The Albanian died seven days later.

Page 131

1 JUDGE WEINBERG DE ROCA: And do you know how many people were

2 beating these detainees, or did you only hear the voices?

3 A. I don't know how many people were beating the prisoners, but I

4 heard the voices that I was able to recognise.

5 JUDGE WEINBERG DE ROCA: You recognised all the voices, or only

6 some of them?

7 A. I recognised only those three voices that I'm talking about.

8 JUDGE WEINBERG DE ROCA: But were there or -- were there more

9 people beating the detainees, and you recognised three voices, or do you

10 think it was only those three that were beating the prisoners?

11 A. I think there were more people beating the prisoners.

12 JUDGE WEINBERG DE ROCA: Did you recognise voices and sounds or

13 did you also recognise what was being said, or was it just the sound you

14 heard but not the exact words?

15 A. I couldn't repeat the exact words. They were curses and cries

16 like "hit him," and things like that.

17 JUDGE WEINBERG DE ROCA: Thank you very much. That's all.

18 JUDGE SHAHABUDDEEN: Though this witness is a witness of the

19 Appeals Chamber, the witness has really been called at the request of

20 Mr. Zigic. So would counsel for Mr. Zigic wish to ask any questions at

21 this stage?

22 MR. STOJANOVIC: [Interpretation] Your Honour, thank you. I am

23 grateful that after this exhaustive questioning by the Trial Chamber, I

24 have only a few questions left to put to this witness.

25 Examined by Mr. Stojanovic:

Page 132

1 Q. [Interpretation] Good day, Mr. KV1. There is only one detail I

2 would like to clarify. Do you remember how Drago Tokmadzic was dressed

3 in Keraterm?

4 A. He was wearing a light-blue police shirt.

5 Q. Was he brought in wearing that shirt?

6 A. Yes, he was.

7 Q. Was this, in fact, the police uniform?

8 A. Yes, it was.

9 Q. Was this the kind of uniform then also worn by members of the

10 Serb police?

11 A. This was the uniform of the police of the former Yugoslavia.

12 Q. At that time, the part of the police we might term the Serb

13 police, after the well-known events in Prijedor, did the policemen who

14 remained in the service of the Serbian authorities there wear the same

15 uniform?

16 A. Yes, they did.

17 MR. STOJANOVIC: [Interpretation] I have no further questions for

18 this witness. Thank you.

19 JUDGE SHAHABUDDEEN: Thank you. Thank you, Counsel. May I turn

20 to the Prosecution.

21 THE INTERPRETER: Microphone for the Presiding Judge.

22 JUDGE SHAHABUDDEEN: May I turn to the Prosecution now.

23 MR. RE: Thank you, Your Honours.

24 Examined by Mr. Re:

25 Q. Witness, this room that you were in, room 4, on that particular

Page 133

1 night, how many people do you estimate were in that room on that night?

2 A. On that night, there were between 260 and 280.

3 Q. Was there a door from that room which went directly out onto the

4 outside area of the camp?

5 A. Yes.

6 Q. What sort of door was it? Was it a door with grills on it, an

7 open door you could see through, or a closed door?

8 A. It was a metal door, and you could see what was directly in front

9 of the door.

10 Q. Where were you in relation to that door when you heard the sounds

11 of beating outside?

12 A. I was beside the door. There was a little wall there on both

13 sides of the entrance to the room. I was next to the wall that is closer

14 to room number 3.

15 Q. How many people do you estimate were between you and the door?

16 A. Between me and the door, there were some 10 or 15 or perhaps even

17 20 people. Some of them were right next to the door itself.

18 Q. And there were also windows to the outside, weren't there?

19 A. Yes. Yes, that's right.

20 Q. Were you able to see out that night to where the beating was

21 occurring, from where you were inside?

22 A. No. The windows were very high up, so you couldn't see out of

23 them.

24 Q. Do you remember whether there was a barrel containing water

25 outside, near room 4, near the door to room 4?

Page 134

1 A. There were two barrels.

2 Q. Did they contain water?

3 A. Yes.

4 Q. Would it be accurate to say that they contained maybe 50 to 100

5 litres of water?

6 A. Two barrels of 200 litres each.

7 Q. Did the guards use these barrels of water outside the door to

8 assault or torture the prisoners or detainees?

9 A. I don't remember. I don't know.

10 Q. Do you remember, on the night in which Drago Tokmadzic was called

11 out, hearing the sounds of splashing or people using those barrels of

12 water?

13 A. No, I don't remember that.

14 Q. The place from where you heard the sounds of beating outside the

15 door, do you think it was on the grass or the concrete?

16 A. The place where the beatings happened?

17 Q. Yes. Where you heard Drago Tokmadzic being beaten. Do you think

18 it was on the grass or the concrete, based upon the sounds you heard and

19 the distance between the door and the concrete?

20 A. I can't say whether he was beaten on the grass or on the

21 concrete, because both the grass and the concrete were very close by.

22 There were many voices, moans, a lot of noise, and you couldn't really

23 gather something like that.

24 Q. And was it apparent to you that more than one person was being

25 beaten outside the door, from the sounds you heard?

Page 135

1 A. Certainly, yes.

2 Q. In response to a question from Judge Weinberg de Roca, you

3 mentioned a person called Eso in that room. Was that Esad Islamovic?

4 A. Yes.

5 Q. Did he survive that night?

6 A. He did.

7 Q. Was there a person in the room or at the camp you knew called

8 Jovo, Jovo Radocac or Radocaj? Forgive my pronunciation.

9 A. After this beating he was thrown into the room. He was stabbed

10 with a knife. He died a little later inside the room.

11 Q. I'll just take you back a step. Firstly, the person Jovo,

12 Jovo -- was it R-a-d-o-c, with an accent, a-j? Is that the spelling of

13 his name?

14 A. I think so, yes.

15 Q. You said after the beating, he was thrown in the room and he

16 had -- or the translation says he was stabbed with a knife. I'll take

17 you back. Was he one of the people called out from your room, or was he

18 in another room that night?

19 A. He was not in the room. He wasn't in any of the rooms, actually.

20 I think that on that occasion, he had been brought from elsewhere, from

21 some house, say.

22 Q. And just to clarify your earlier answer about him being stabbed

23 with a knife: Are you saying that he had been stabbed with a knife

24 before he was thrown back into the room, or thrown into the room? I'm

25 sorry.

Page 136

1 A. Yes.

2 MR. STOJANOVIC: [Interpretation] Your Honours, we object. We

3 believe that this examination has gone beyond the scope of what should be

4 the subject matter.

5 [Appeals Chamber confers]

6 JUDGE SHAHABUDDEEN: Yes. Mr. Stojanovic, the Bench has

7 considered your motion, but refuses it at this time.

8 MR. RE:

9 Q. Was Mr. -- was Jovo thrown back into the room at the same time as

10 Drago Tokmadzic, or at a different time that night?

11 A. The interval between these two events was short, a couple of

12 minutes, perhaps.

13 Q. I want to ask you about times, and I appreciate it's been a very

14 long time. I want you to estimate for the Appeals Chamber, as best as

15 you can, about what time you think Mr. Tokmadzic was called from the

16 room.

17 A. It's very difficult to say. It was night-time. That means after

18 10.00 p.m.

19 Q. Was he immediately beaten or did you immediately hear the sounds

20 of beating outside your door just after he had been called out by

21 Banovic?

22 A. Not immediately. It took them some time to round up the others

23 and to line them up, and then the whole thing started. How exactly it

24 started, I don't know, but it seems to me that all of them were beating

25 everybody at the same time, and there were several of them involved.

Page 137

1 Q. How long did this beating continue for, the one that you could

2 hear outside your window -- or outside the door?

3 A. I don't know exactly. 10, 15, 20 minutes.

4 Q. Could it have been longer than that?

5 A. Well, to me, it seemed like it was the whole night.

6 Q. And after the beating, did the voices go away and the sounds

7 subside?

8 A. Yes. Everything died down --

9 Q. And was it --

10 A. -- suddenly.

11 Q. Suddenly. And was it sometime later that Drago Tokmadzic's body

12 was brought back into the room?

13 A. Yes. After that beating, they threw him inside and in the same

14 way they threw Jovo inside as well, and a bit later, everything was

15 still. Everything was quiet until the next morning.

16 Q. Can you say whether it was the guards who brought his body back

17 into the room or whether prisoners in the room were asked to go out and

18 bring the body back in?

19 A. I think two prisoners holding the bodies of Drago Tokmadzic.

20 Q. Are you saying that the guards came and asked the prisoners to

21 come outside and bring the bodies back in?

22 A. Yes. They stood in the doorway and asked two men to come out. I

23 think it was the way it happened. It was a long time ago, and I don't

24 have a clear recollection of it any more.

25 Q. When Drago Tokmadzic was taken out, you said that you were near

Page 138

1 the front, I think you said there were a number of people between you and

2 the door, but you were near the wall and the door to the outside. Where

3 were you by the time Drago Tokmadzic was brought back in? Were you still

4 in that spot or had you moved to another one in the room?

5 A. I was in the same spot.

6 Q. Where or how -- I'm sorry. I withdraw that. Were you one of the

7 people who removed Drago Tokmadzic's body from the room the next day?

8 A. Yes, I was.

9 Q. Where did you take it to?

10 A. He was taken upstairs, above room number 4, to the perimeter,

11 where the waste dump was. There were some pallets there and we laid him

12 on the pallets. I don't remember the other person who was doing the

13 carrying with me. I've already been asked that question, but I can't

14 remember the other man who was carrying the body.

15 Q. The translation reads he was taken upstairs, above room 4. Are

16 you saying in the building and into the perimeter of the building, or are

17 you talking about outside somewhere?

18 A. No, no. It was outside. You see, where room 4 is, then after

19 that is the end of the area, the red area, which is fenced in, and then

20 there is an area covered with grass, also fenced in. And we put him

21 outside, on the other side of the fence.

22 Q. Approximately how far is that from -- I'm sorry. I withdraw that

23 question. Was that a place where bodies of the deceased prisoners were

24 regularly taken to, that same spot you've just talked about?

25 A. Yes, that was the spot.

Page 139












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Page 140

1 Q. And approximately how far is that in metres, doing your best,

2 from the door of room 4? 10, 20, 30, 40, 50, 60, 100, whatever.

3 A. 30 to 40 metres, thereabouts.

4 Q. Was that an area described by the other prisoners as the end of

5 the camp?

6 A. Precisely.

7 Q. Would you necessarily have been able to hear the sounds of people

8 at night in that particular area from where you were in room 4?

9 A. From that place, you can hear. It's not far away.

10 Q. Do you remember whether you heard any sounds coming from that

11 area that night?

12 A. Well, it's not exactly the same spot that you're asking me about

13 now. It's the last room in the row in Keraterm, and we carried the body

14 a bit beyond that room, towards the asphalt road. There is a spot where

15 some pallets are lying, and that's where we put the body.

16 Q. How far is that particular place from the door of room 4?

17 A. Well, some 40 metres or so.

18 Q. Would you agree that if you were inside a room with many, many

19 other people, and there were sounds coming from a distance outside, maybe

20 a distance of 30 or 40 metres, it's difficult to identify precisely where

21 the sound is coming from?

22 JUDGE SHAHABUDDEEN: Yes, Mr. Stojanovic.

23 MR. STOJANOVIC: [Interpretation] Your Honour, I believe that this

24 is not only a repetition of a previous question; it is an attempt to

25 confuse the witness, an attempt to replace one thing with another. The

Page 141

1 witness had described a place just outside room number 4, where Drago

2 Tokmadzic was beaten, and then a completely different place where his

3 body was taken, near a waste dump. The Prosecutor is trying to swap

4 these two places in his examination, and to insinuate that Drago

5 Tokmadzic was beaten in the more distant place, which was 40 metres away

6 from room number 4. It is a different place. The day after, his body

7 was probably taken yet further, to a cemetery, but that's no reason to

8 question this witness about it. I don't think his attempt to confuse the

9 witness is fair.

10 JUDGE SHAHABUDDEEN: The Prosecutor, would you make haste at this

11 point. Mr. Stojanovic's objection takes me to the schedule of our

12 hearings, and you were -- the Prosecution was given 30 minutes. And

13 maybe if you adhered to that timetable, then we wouldn't have any more

14 objections of the nature made by Mr. Stojanovic. Would you --

15 MR. RE: Your Honour, might I address the objection. I'm putting

16 to this witness the evidence of Witness -- of Edin Ganic. I am -- the

17 Prosecution is not tied to a beating, the death of Mr. Tokmadzic, outside

18 that door.

19 JUDGE SHAHABUDDEEN: I understand.

20 MR. RE: Mr. Ganic's evidence is different and I am putting a

21 different scenario to this witness.

22 JUDGE SHAHABUDDEEN: I understand, Counsel. What I was reminding

23 you of were the imperatives of the schedule before us.

24 MR. RE: Your Honour, I asked a question about the possibility of

25 this witness being able to identify where sounds are coming from, which

Page 142

1 is consistent with the evidence heard at trial of Edin Ganic. I didn't

2 get an answer to that question. Twice. I'm trying to get an answer from

3 the question. Can I put the question again?


5 MR. RE: Thank you, Your Honour.

6 JUDGE SHAHABUDDEEN: Please proceed quickly. Thank you.

7 MR. RE:

8 Q. Witness KV1, did you understand my question? My question is if

9 you are inside a building with many other people present, at night, you

10 would agree that it would be difficult for you to ascertain exactly where

11 sounds are coming from, if they may be coming from a place maybe 30 or 40

12 metres away?

13 A. I agree that that is correct, although we were dead silent, all

14 of us in the room. And what I said did not apply to those who were at a

15 distance. It applied to only those that I heard.

16 Q. What I'm asking you is: Do you remember on that night hearing

17 sounds that may have been coming from, say, 30 or 40 metres away? The

18 question is: Do you remember?

19 A. I do not remember more remote sounds. I only remember the sounds

20 just outside the room, the racket that was not more than four or five

21 metres away from me.

22 Q. Were you aware of a person -- did you know a person who was a

23 teacher from Kozarac?

24 A. I knew a man named Maroslic. Was it Maroslic? I can't remember.

25 Q. Was there a teacher from Kozarac who was also taken out that

Page 143

1 night and beaten?

2 A. That, I really don't know. But that teacher was in room number

3 2, I think.

4 Q. Is it possible there was a time period between when the sounds of

5 beating stopped outside your door and Drago Tokmadzic was brought back

6 in?

7 A. Could you repeat this question, please.

8 Q. You heard the sounds of beating outside your door, and everything

9 went silent. Was there a time period, a period of time between when the

10 sounds stopped and when he was brought back in?

11 A. They brought him back into the room at the very end of this

12 incident, perhaps just moments before everything went silent.

13 Q. Are you able to say approximately what time he was brought back

14 in? 10.30, 11.00, 11.30, 12.00, 12.30, 1.00, whatever.

15 A. I already mentioned that I can't tell you exactly how much time

16 passed. To me, it seemed horribly a long time.

17 Q. I just want to show you an exhibit from trial. It is Exhibit

18 327. It is a photograph.

19 MR. RE: Can the witness be shown this photograph. I have

20 copies for my colleagues and the Bench.

21 Q. While it's being done, Witness KV1, you wouldn't have known -- or

22 you wouldn't have been able to see someone being taken out from room 1

23 from where you were, would you?

24 A. No.

25 Q. I just want you to get a pen and look at that particular exhibit.

Page 144

1 And I want you to draw an arrow from the sky down to where room 1 was.

2 Can you just turn to your right. Draw an arrow from the top -- from the

3 sky. Can you please draw on it with the pen.

4 A. [Marks]

5 Q. Can you please just mark a "1" above that.

6 A. [Marks]

7 Q. Can you please draw the arrow all the way down to room number 1,

8 to where the door of room number 1 was.

9 A. [Marks]

10 Q. I want you to do the same with room number 4, please, that is, an

11 arrow right down to the -- from the sky right down to the door, with a

12 "4" above the top of it.

13 JUDGE SHAHABUDDEEN: Yes, Mr. Stojanovic.

14 MR. STOJANOVIC: [Interpretation] Your Honours, the Prosecution

15 has available to them much clearer photographs which it has shown to

16 other witnesses. In this photograph, even I, who has visited Keraterm

17 many times, find it difficult to distinguish where room number 4 is. I

18 believe this exhibit was intentionally chosen as one of the least

19 advantageous for identification. I know the Prosecution disposes of many

20 others depicting room 4 much more clearly. I don't know what this is

21 supposed to lead to.

22 [Appeals Chamber confers]

23 JUDGE SHAHABUDDEEN: Well, Mr. Stojanovic, the Bench considers

24 that the point had better be kept by you in reserve for when you address

25 us on the weight of the evidence and on the inferences which could safely

Page 145

1 be drawn from it.

2 MR. RE: Yes. I'll certainly ask my friend to withdraw his

3 insinuation we're choosing exhibits which are least advantageous for

4 identification; this is the best we can find. And he'll do so in his

5 submissions, I'm sure.

6 Q. Witness, could you please draw a "4" on the line you've drawn on

7 that to show it's room 4.

8 A. [Marks]

9 Q. Thank you. And finally, I want you to mark an "X" on the spot

10 outside room 4 from where you heard the sounds of beating.

11 A. [Marks]

12 Q. I'm not quite sure we can clearly see that "X." Can you make it

13 a little larger, please, or maybe use a different coloured pen.

14 A. [Marks]

15 Q. Can you also put an arrow on that in the direction of the --

16 pointing in the direction of the garbage dump, the end of the camp, where

17 the bodies were taken to. Well, firstly I should ask you: Can you see

18 that particular spot on this photograph?

19 A. No.

20 Q. Please mark an arrow pointing in the direction of the garbage

21 dump.

22 A. [Marks]

23 Q. And to be clear, you said that was I think 30 or 40 metres from

24 room -- the doorway to room 4.

25 A. Yes.

Page 146

1 MR. RE: Might that be received into evidence, please, Your

2 Honours, as an exhibit on appeal.

3 THE REGISTRAR: For the record, the first photo will be marked

4 PA1, and the second photo that had been marked by the witness is PA1 bis.

5 MR. RE: That completes my cross-examination.

6 JUDGE SHAHABUDDEEN: Yes. Mr. Stojanovic, the Bench will afford

7 you the opportunity to ask any clarifying questions directed to anything

8 new that the Prosecution might have elicited.

9 MR. STOJANOVIC: [Interpretation] Your Honours, I believe we would

10 only be wasting more time. My objections, however, stand, particularly

11 with regard to the photograph, and I would like to say a few words about

12 that at the end, as you instructed. I have no other questions. Thank

13 you.

14 [Appeals Chamber confers]

15 JUDGE SHAHABUDDEEN: Gentlemen, I don't -- I think that concludes

16 the examination of the testimony of this witness. If it, pleases you,

17 and there are no serious objections, we think it would be convenient to

18 reserve the addresses of the parties on the evidence for the conclusion

19 of the entire appeal.

20 [Appeals Chamber confers]

21 JUDGE SHAHABUDDEEN: We think it may be convenient now to take

22 the adjournment, unless there are any questions from the Bench. There

23 are no questions from the Bench. We will take an adjournment of 30

24 minutes. We will suspend, and then we will come back for the --

25 [Appeals Chamber confers]

Page 147

1 JUDGE SHAHABUDDEEN: Yes. I'm reminded by my colleague on my

2 right that the witness might be excused at this point.

3 All right. Well, Judge Guney -- Mr. Usher, will you keep the

4 apparatus on. Judge Guney has a question to ask the witness, and it will

5 be convenient to have this question put before the witness leaves us.

6 Judge Guney.

7 Questioned by the Court:

8 JUDGE GUNEY: [Interpretation] Witness, I have already asked you a

9 question concerning the corpse of that man. I asked in which state it

10 was, the corpse of Mr. Tokmadzic, when it was brought back to room number

11 4. And you replied by saying that the lighting was too poor for you to

12 see. And the next day, considering that you were one of the two men who

13 hold the body outside from that room, can you tell me, did you see then

14 in which state the body was. Were there any signs of injuries, torture,

15 beatings?

16 A. There were traces of injuries. We didn't really inspect him

17 carefully. We just had to carry him away, because he was dead. We

18 weren't interested in inspecting his injuries.

19 JUDGE GUNEY: [Interpretation] And while carrying him, you did not

20 observe nothing beyond what is normal? Nothing struck you in particular?

21 A. There were no large wounds on his body. You could see traces of

22 a beating, but I will say again: We didn't really inspect him. We --

23 it's not a nice thing to look at a dead body, so we averted our gaze as

24 we carried him along.

25 JUDGE GUNEY: [Interpretation] Thank you.

Page 148

1 JUDGE SHAHABUDDEEN: Thank you very much, Witness KV1. It was

2 very good of you to come.

3 Mr. Usher, will you see that the witness takes his leave.

4 [The witness withdrew]

5 JUDGE SHAHABUDDEEN: Well, we're a few minutes ahead of time, but

6 this might be a convenient stage at which to take the usual break. So I

7 would ask that we suspend the proceedings for 30 minutes. Thank you.

8 --- Recess taken at 11.06 a.m.

9 --- On resuming at 11.41 a.m.

10 JUDGE SHAHABUDDEEN: Thank you, gentlemen, ladies and gentlemen.

11 I understand from the registrar that there is a technical problem

12 relating to the numbering of two exhibits which were introduced this

13 morning. Madam Registrar, what would you like to do?

14 THE REGISTRAR: Thank you, Your Honour. I would like to let the

15 parties know the exhibit number and the confidentiality. The first

16 exhibit, it's a Chamber exhibit, which is CA1, is Witness KV1's

17 particulars. This exhibit is under seal. The second Chamber exhibit is

18 CA2, and that is Witness Y's particulars, and that also is under seal.

19 Thank you, Your Honour.

20 JUDGE SHAHABUDDEEN: Yes. Thank you very much, Madam Registrar.

21 If there are no objections, it is so ordered.

22 Then we come now to the hearing of appeals, but I understood that

23 the Prosecution wanted to say a word. Yes, please, Mr. Carmona.

24 MR. CARMONA: Your Honours, I just wish to indicate that in

25 indicating this morning the complement of the Prosecution, I was remiss

Page 149

1 in not mentioning our diligent case manager, Ms. Lourdes Galicia. And

2 secondly, as a courtesy, I should indicate to the Court, to the learned

3 Chamber, that Mr. David Re, who conducted the examination of the witness,

4 will not be here this afternoon with us. Thank you.

5 JUDGE SHAHABUDDEEN: Thank you. Then we proceed now with the

6 hearing of the final oral arguments of the parties. I take it that the

7 address system is working and that there's no need to ask whether

8 proceedings are being heard by the interpreters, by the appellants, by

9 the accused, the appellants, or by the Prosecution, and that the

10 appearances now are as they were earlier this morning.

11 Now, the evidential portion of this hearing took place this

12 morning, when one witness testified. I simply confirm that the relevant

13 parties will be at liberty to address the Appeals Chamber on that

14 evidence and its proper evaluation at the relevant time in the course of

15 these arguments.

16 Now, in its judgement rendered on 2nd November 2001, the Trial

17 Chamber convicted the appellants for persecutions, murder, torture, or

18 cruel treatment, all being crimes recognised by Article 3 or Article 5 of

19 the Statute. The Trial Chamber sentenced the Appellant Kvocka to seven

20 years' imprisonment, the Appellant Prcac to five years' imprisonment, the

21 Appellant Radic to 20 years' imprisonment, and the Appellant Zigic to 25

22 years' imprisonment.

23 The appellants filed their notices of appeal against the trial

24 judgement between the 13th and the 16th of November, 2001. That is a

25 little over three years ago. The Prosecution did not appeal. All four

Page 150












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Page 151

1 appellants share a common ground of appeal concerning the doctrine of

2 joint criminal enterprise. Their individual grounds of appeal are

3 briefly summarised as follows, and I warn the Bench that I'm not being

4 exhaustive or detailed at this stage.

5 The appellant Mr. Kvocka alleges that the Trial Chamber erred in

6 admitting the transcript of his interviews in finding him to be the

7 deputy commander at Omarska, in finding him to be guilty of persecutions

8 and the crimes of murder and torture, and in ignoring two mitigating

9 factors in determining his sentence.

10 The appellant Mr. Prcac argues that the Trial Chamber should have

11 acquitted him, having accepted his arguments in total; that the Trial

12 Chamber erred in convicting him on the fact that was not pleaded in the

13 indictment and committed errors of fact and law in respect of his role at

14 Omarska; that the Trial Chamber did not explain the credibility of

15 certain witnesses; that the Trial Chamber denied him a fair trial in

16 relation to the cross-examination of ten witnesses; and that the Trial

17 Chamber did not consider certain mitigating facts in determining his

18 sentence.

19 The appellant Mr. Radic alleges that the Trial Chamber denied him

20 a fair trial by failing to assess his responsibility for acts or

21 incidents detailed in the confidential schedules attached to the

22 indictment; that the Trial Chamber erred in finding that he had a

23 discriminatory intent, without proof of it; that the Trial Chamber erred

24 in finding that there was sufficient evidence to corroborate his guilt

25 for maltreatment in the camp; and that the Trial Chamber gave him too

Page 152

1 severe a sentence, which is disproportionate to his position and

2 inconsistent with the ICTY sentencing practice.

3 The appellant Mr. Zigic contends that the Trial Chamber erred in

4 finding him responsible for murders at the Omarska camp, murders of

5 specific individual detainees, torture, and certain beatings. He submits

6 further that the Trial Chamber erred in relying on evidence of a pattern

7 of conduct which was unfounded; in failing to provide a reasoned opinion

8 for his conviction for persecutions; and in failing to consider

9 mitigating facts in relation to his sentence. He also claims that he was

10 not properly informed of the charges against him and that the Trial

11 Chamber was biased against him in not providing reasons for his

12 convictions.

13 I would now like to remind the parties about the criteria

14 applicable to errors of facts or law alleged on appeal. The Appeals

15 Chamber has pointed out on numerous occasions, an appeal is not an

16 occasion for parties to re-plead their case. It is not a trial de novo.

17 The general rule is that on appeal, the parties must limit their

18 arguments to matters falling within the framework of Article 25 of the

19 Statute, that is, errors and questions of law invalidating the decision

20 or errors of fact which have occasioned a miscarriage of justice. In a

21 rare case, a party may raise an issue of general importance to the

22 Tribunal's jurisprudence. An appellant alleging an error of fact must

23 demonstrate that no reasonable trier of fact could have reached the

24 conclusion being challenged and that this error has caused a miscarriage

25 of justice.

Page 153

1 The final arguments of the parties will be heard in accordance

2 with the schedule set out in the Scheduling Order of 19th March 2004, as

3 amended by the Scheduling Order of 22 March 2004. At the end of the

4 final arguments, the appellants will be allowed to make brief submissions

5 to the Chamber.

6 Turning now to the Defence for Mr. Prcac, I would invite

7 arguments by him. I will explain that our invitation to counsel for Mr.

8 Prcac to speak first is out of the order indicated in the cover page of

9 the judgement, but that this is due to questions as we perceive them,

10 relating to the need to consolidate the arguments and especially having

11 regard to the necessities of presenting arguments on matters of common

12 concern to the appellants.

13 So would counsel for Mr. Prcac be the first to speak, that is,

14 Mr. Simic.

15 MR. J. SIMIC: [Interpretation] Thank you, Your Honour.

16 The Defence of Mr. Prcac submitted this appeal almost two and a

17 half years ago on the grounds that Your Honour has summarised and which

18 we will only briefly discuss. It is -- the standpoint of the Defence has

19 not changed since we submitted our motion. What we put forward, and

20 still argue, is the fact that Mr. Prcac was indicted and charged that, as

21 a deputy commander of the Omarska camp, he held a position which implied

22 his participation in a joint criminal enterprise because the Trial

23 Chamber took the position that the camp itself was a joint criminal

24 enterprise.

25 The indictment that has been confirmed contained assertions by

Page 154

1 the Prosecution that Mr. Prcac was the deputy commander and that he was

2 superior to everybody in the camp except the commander, that he was able

3 to change the conditions, to make decisions on transferrals of detainees

4 and that he could decide who could enter the Omarska camp and when.

5 These allegations by the Prosecution were rejected by the Trial Chamber.

6 The Trial Chamber established that Mr. Prcac was not the deputy commander

7 of the camp, that he was not authorised, that he had no authority over

8 the guards and other services in the Omarska camp, that there was a

9 separate chain of command and hierarchy, and that he was not in the

10 position that he -- that the Prosecution claimed he was.

11 However, it was established by the Trial Chamber that he was the

12 administrative assistant of the camp commander. In the view of the

13 Defence, this is not well grounded. But this was used to characterise

14 his position and influence, and the influence that he, as a low-ranking

15 person, could wield on the joint criminal enterprise.

16 This Defence team, as the Appeals Chamber knows, has found it

17 part of its appeal on the standpoints taken by the Trial Chamber in the

18 Krnojelac case, which established some standards which are not new but

19 which the Defence finds acceptable and very efficient in establishing the

20 role, function, and therefore, the criminal responsibility of persons

21 accused as participating in a joint criminal enterprise. This has now

22 entered the jurisprudence of this Tribunal. Participation in a joint

23 criminal enterprise is incorporated in the individual responsibility

24 provided for by Article 7(1) of the Statute of this Tribunal.

25 In the appeals judgement in the Krnojelac case, the Appeals

Page 155

1 Chamber did not discuss what the Defence thought would be discussed

2 because they presumed the participation of the accused Krnojelac and his

3 position and status in the Foca KP Dom prison, because he was in charge

4 of the functioning of one part of KP Dom, they found, or, that is, the

5 Trial Chamber found that this position is sufficient to imply a

6 significant contribution.

7 There may seem to be a difference in standards between this

8 standpoint taken by the Trial Chamber in the Krnojelac case and the

9 judgements in Krstic and Tadic, the Krstic and Tadic trials. Although no

10 judgement has yet been handed down by this Tribunal to the effect, or any

11 standpoint taken, to the effect that the physical presence of a person in

12 a place and at a time when the crimes falling under the jurisprudence of

13 this Tribunal took place can be used to prove the culpability of that

14 person. Additional evidence is needed, in addition to his physical

15 presence at that place and time.

16 In the view of this Defence team and the other Defence teams,

17 this objective responsibility does not exist. Something more is needed.

18 What is this? There has to be influence or authority, something that can

19 be pointed to specifically. This, however, does not mean that the

20 Prosecution did not have to prove the mens rea of the accused in

21 connection with the crimes alleged against him and the crimes he

22 allegedly perpetrated.

23 The Defence feels that the Prosecution had to prove mens rea in

24 connection with the crimes the accused is charged with. The Defence

25 asserts that it is not sufficient for this conclusion to be possible. It

Page 156

1 has to be the only possible reasonable conclusion. If, on the basis of

2 the evidence and the witness statements, there is any doubt or any other

3 possible conclusion, then the Trial Chamber cannot draw this conclusion.

4 In a situation when we are determining the position of an accused

5 in a joint criminal enterprise, the Defence believes we have to proceed

6 from what the Trial Chamber established in this case, namely, that these

7 are people of very low rank. We're not talking about people who have any

8 command responsibility or any command position. They are free. That is,

9 Mr. Prcac is free of command responsibility envisaged by the Statute. So

10 he can be responsible only individually. By making a significant

11 contribution or by having enabled, unhindered or better functioning of

12 the camp at the time.

13 The Trial Chamber in this case derived this position from the

14 Dachau case, where it says if the membership of an accused who is

15 low-ranking and who was implied to be a member of a joint criminal

16 enterprise, with guilt already presumed, could be exonerated if his

17 contribution was insignificant, or less than significant, if his stay at

18 the camp was short, and so on and so forth.

19 In this case, the Trial Chamber accepted this position, and it

20 says - that's paragraph 309 of the judgement - the mere presence of the

21 accused at the camp does not mean that he is criminally responsible. His

22 participation in that camp has to be significant, and that means that his

23 acts or omissions make the enterprise more efficient and effective, and

24 this is applicable on a case-by-case basis. This is a standard accepted

25 by the Trial Chamber itself, and it is grounded in the position of this

Page 157

1 Tribunal as a whole.

2 The Defence, therefore, had to prove that the accused did not

3 have the position he was incriminated with and that he did not commit the

4 acts he was charged with.

5 The Prosecution did not have any reason, nor could they have

6 envisaged, that some other function apart from the one they indicated

7 increased his -- the accused's significance. So the position of the

8 accused in this enterprise, aider and abettor, instigator, member,

9 et cetera, becomes important. What has to be proven is whether

10 Mr. Prcac, Dragoljub Prcac, did indeed make a significant contribution to

11 the functioning of this camp. We claim that, no, and that he is not

12 criminally responsible.

13 If we look at the indictment, the Prosecution has claimed in this

14 indictment - I will be brief here - that in the period from the 24th of

15 May until the 30th of August, in his capacity of active policeman who

16 replaced Miroslav Kvocka as deputy camp commander, was superior to

17 everyone in the camp except the camp commander, and as deputy commander,

18 had a possibility to change the conditions in the camp, to control the

19 comings and goings of visitors, and to determine the regime.

20 Following the indictment, our learned friend Keegan repeated all

21 this and added some more. He claimed that in Omarska camp there was a

22 clear hierarchy with Zeljko Meakic being the commander. He said that the

23 position of Dragoljub Prcac, as deputy commander, gave him actual control

24 over shift commanders and the visitors who came into the camp, such as

25 Zigic, and that he was present during the commission of criminal acts,

Page 158

1 and that on several occasions he called out prisoners from previously

2 prepared lists, lists that he was in charge of, that he was in control

3 over all parts of the camp and that he performed the duties of the

4 commander in the absence of Zeljko Meakic.

5 Your Honours, as you know, the Defence made a comparative

6 analysis of the charges levelled against the accused and between the

7 findings of the Trial Chamber. Not a single count in the indictment has

8 been proven by the Prosecution.

9 Not proved by applying in dubio pro reo, for instance. We

10 established who was in charge for the food, for the water. We

11 established what the relations were in the camp, what the structure of

12 the camp was, and it turned out that the claims of the Prosecution were

13 untrue. On the other hand, in the response made by the Prosecution to

14 the appeal made by this Defence team, the Prosecution attempt to swap

15 theories, saying that the fact that he was not said to be the commander

16 of the camp means that he is not culpable under Article 7(3) of the

17 Statute.

18 With all due respect, as far as I'm aware of international

19 criminal law, I haven't found a single national legislation where the

20 indictment is not obliged to specify exactly what somebody is charged

21 with. If that something does not exist, then we don't need the

22 indictment -- it is not needed at all. It is enough to say that somebody

23 is part of a joint criminal enterprise, and then you can go on from that

24 to prove any theory.

25 What is curious is the following: The Appeals Chamber, after

Page 159

1 all, establishes certain standards at one point. I will deal with --

2 THE INTERPRETER: Interpreter's correction. The Trial Chamber

3 establishes certain standards.

4 MR. J. SIMIC: [Interpretation] In paragraph 245 says that an

5 indictment has to be very clear in specifying the charges, in order to

6 enable the trying of the accused. This is the standard laid by the Trial

7 Chamber but has not been observed in this case, in our view.

8 So, as for the joint criminal enterprise itself and the

9 participation of the accused Prcac in it, we need to emphasise that

10 nowhere, in no way, was it established how his contribution was

11 significant and what he has done for anyone to be able to claim that he

12 participated in this joint criminal enterprise.

13 The Defence stressed, and firmly believes, that the Trial Chamber

14 made a series of grave errors. At this point, the Defence does not

15 believe that the Trial Chamber weighed the evidence and testimonies and

16 made findings that are disadvantageous to the Defence. The Defence

17 claims that the Trial Chamber misquoted the transcripts, took things out

18 of context, and misinterpreted the submissions of this Defence.

19 These grave errors resulted in the erroneous conclusion made by

20 the Trial Chamber that the accused Prcac was in charge of the camp and

21 the commander, the administrative controller of the camp. We will deal

22 with this later, however.

23 No reasonable trier of fact, in our submission, could come to

24 that conclusion. The finding of the Appeals Chamber that this Defence

25 should not evaluate evidence -- but, however, we are not evaluating

Page 160

1 evidence. We are just submitting that certain evidence was not

2 considered by the Trial Chamber.

3 Similarly, the Trial Chamber established the principle in dubio

4 pro reo. A lot of evidence was adduced, and the Trial Chamber decided

5 that a great number of witnesses spoke about the role of Mr. Prcac in the

6 Omarska camp. 37 spoke about the Omarska camp, the occurrences there,

7 its structure; and 45 spoke about the role of Mr. Prcac. Out of the 37,

8 some said that he was the commander. Some said -- in fact, four said

9 that he was deputy commander. Some, in fact, one, said that he was the

10 administrative assistant of the camp commander, and the rest didn't know

11 at all what his role was.

12 In keeping with the dubio pro reo principle, the Trial Chamber

13 says that there is no evidence that he was the camp commander. But on

14 the basis of the same evidence, the Trial Chamber goes on to conclude

15 that he was the administrative assistant of the camp commander, instead

16 of saying that there is no evidence of his role.

17 The situation is similar with the standards applied by the very

18 Trial Chamber, although these are the same principles against which we

19 appealed, concerning, in particular, the evaluation of the credibility of

20 witnesses and their testimony. It has been established for a long time

21 in this Tribunal that witnesses cannot be expected to give precise

22 testimony eight or nine years later after the event. It doesn't mean,

23 however, that the witness can say whatever they want and the Trial

24 Chamber can take out of that testimony what it needs.

25 In practice, it boils down to one thing. Testimony which is

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Page 162

1 inconsistent with previously given statements to the Prosecution is

2 acceptable. Testimony which is inconsistent with other testimony is also

3 acceptable, but only if they are minor inconsistencies. It is quite

4 clear that a witness cannot remember everything very clearly. A witness

5 speaks from memory. But an event can be described more or less

6 precisely; but it cannot be completely different and fall out of the

7 context created by the bulk of all the other testimony.

8 Before this Trial Chamber, this Defence team has had a lot of

9 problems. First of all, we did not receive any material which is being

10 disclosed nowadays under Rule 68. And we were prejudiced because we

11 didn't have one important fact that was proven in the Tadic case, but to

12 the great regret of this Defence team, it was established wrongly. We

13 could have been able to use this material, but we didn't. We were unable

14 to produce this material before certain witness who testified here about

15 certain circumstances. It happened many times during the trial that

16 witnesses were replaced. It was the case with eight or nine witnesses.

17 The credibility of witnesses was always -- was very often in question.

18 The imperative should have been to establish the truth despite the

19 limitations of time.

20 It is the view of this Defence that we cannot accept the

21 testimony of a witness which is disparate with the testimony of all the

22 other witnesses. It happened in the Tadic case - and it is relevant for

23 our case - that a witness testified who was later found not to have been

24 the victim of rape at all. If such a witness was able to be called, that

25 is completely wrong. Such things happened in our trial as well.

Page 163

1 As far as the Omarska camp is concerned, certain testimonies were

2 drawn out of context, both regarding witness testimony and the

3 submissions written by this Defence team.

4 As I said, the third standard applied by the Trial Chamber was

5 that the indictment should provide a recognisable framework and provide

6 guidelines to the Defence as to what the accused is charged with and how

7 he should be defended, against what. The Defence made clear in its

8 appeal that the claim that the accused was administrative assistant to

9 the camp commander is a grave violation of this standard. This Defence

10 has never heard in this courtroom that anybody charged their client with

11 being the administrative assistant to the camp commander.

12 What is important to us at this moment is that the Trial Chamber

13 was trying to establish a certain hierarchy and structure of the camp.

14 And it established beyond any reasonable doubt - a point on which we

15 agree - there was an investigative service, there was a special platoon

16 of guards who were serving these investigators, then that there was an

17 intervention squad from Banja Luka in one part of the camp. There was

18 also a technical service that took care of the maintenance of facilities

19 of the camp, that there was an army as an external security system, that

20 there was a Territorial Defence that was in charge of preparing,

21 supplying, and delivering food, and also helped provide security, the

22 physical security of the camp.

23 In this section, the Trial Chamber establishes that these

24 services existed, and Zeljko Meakic, as the commander or security, had no

25 competency, de facto or de jure; was unable to punish or control

Page 164

1 investigators or any other component of this structure.

2 Although this was not said decisively, this finding of the Trial

3 Chamber means that Zeljko Meakic was a chief of security, not camp

4 commander. The indictment charges Dragoljub Prcac with being deputy

5 commander of the camp, deputy to Zeljko Meakic. Now, look at the

6 situation we are in. Zeljko Meakic is not camp commander. He is chief

7 of security, whereas Prcac suddenly becomes deputy camp commander. And

8 nobody knows - not the Trial Chamber, not the Defence teams, not the

9 Prosecution - who the camp commander actually was. And the Defence team

10 wonders how am I able to appeal at all, and what am I able to do in a

11 situation when I do not know the identity of the camp commander? The

12 camp commander is some fictive person which we, by the way, established

13 to be Simo Drljaca, because the Trial Chamber didn't bother with it at

14 all.

15 So Zeljko Meakic was charged with being the deputy camp

16 commander, whose identity, the identity of the camp commander being

17 unknown.

18 From the viewpoint of the Defence, we believe it is a very

19 important issue indeed. First, if we take into consideration that the

20 Defence was never shown that Dragoljub Prcac was perhaps the

21 administrative assistant to the camp commander, and if his role was

22 always linked to Zeljko Meakic, the chief of security, and we do not know

23 who the camp commander was, the Defence asked itself, and this is a

24 question we put forward in our brief, would we have conducted the defence

25 in the same way had we known all this? The Defence could say that

Page 165

1 Dragoljub Prcac was -- or rather, the Prosecution could have said that

2 Dragoljub Prcac had an important position in the camp, and then the

3 Defence could have considered all the possibilities. However, throughout

4 the trial, the Prosecution claimed that he was the deputy camp commander.

5 The Defence attempted to prove that he was not, that he had not been the

6 deputy camp commander. We were trying to establish all the time not what

7 he did not do, but what he actually did; what he was actually in charge

8 of.

9 The Defence was not satisfied with a narrow interpretation of

10 dubio pro reo. It was not satisfied with proving that he was not the

11 deputy camp commander. We were rather concerned with showing what he

12 actually did in the camp, and we adduced this. But the Trial Chamber

13 misinterpreted what we presented completely. Not only did it

14 misinterpret it, it cut off a part of a sentence, thereby giving it a

15 completely different meaning.

16 In the situation where we do not know who the camp commander was,

17 we cannot examine the role of Mr. Dragoljub Prcac. There is not a shred

18 of evidence to show that he contacted anyone but Zeljko Meakic, who was

19 the chief of security. No evidence was ever adduced to prove this. If

20 we put forward the hypothesis, as the Prosecution would like to do in

21 their response to our appeal, that we should have foreseen, because he

22 was indicted of being a member of a joint criminal enterprise, that we

23 should have foreseen this, this would mean that in fact we didn't need

24 the indictment at all. All we would need was this general information

25 that he was part of a joint criminal enterprise. I really don't know

Page 166

1 what the Defence would have looked like in that case and what defence

2 could have been put forward. With all our limitations and with all our

3 very limited resources, I don't think any Defence team could have had a

4 chance of proving the innocence of anyone before this Tribunal. Because

5 if he was not the deputy commander, he was the administrative assistant.

6 If he wasn't the administrative assistant, he might have been the cook.

7 If not the cook, then the scribe. If not, then he might just have had

8 influence, because perhaps he was an elderly person or a good person, a

9 person people respected because he had never -- he had never had any

10 conflicts with anyone and was respected in the community, and that would

11 have been sufficient to declare him a war criminal because he was

12 influential.

13 If we look at the situation in the Omarska camp at the time when

14 these crimes took place, we shall see that apart from the organisation

15 which, in the view of the Defence, has been described with great

16 precision, it is fair to say that there was chaos in the camp. Anyone

17 could enter the camp. Evidently, anyone could maltreat, abuse, or even

18 murder whoever they wanted to. And evidently, the Defence is not trying

19 to claim that perhaps there was a plan. Somebody had to create this

20 plan; that somebody had to have authority. He had to be in a certain

21 position and he had to have people willing to implement the plan. But

22 criminal responsibility cannot be inferred from position alone.

23 This trial involves low-ranking persons. The highest rank in the

24 police, whoever answered to this Tribunal was the chief of the patrol

25 sector. We did not get the chief of police or anyone in a senior

Page 167

1 position. Those who actually created the criminal enterprise have not

2 been indicted, those who worked on its implementation, on murders, on

3 torture, on worsening the living conditions of the detainees. The

4 Defence gave up on those people. 13 other accused were to have been

5 indicted before this Tribunal. These are persons mentioned in the

6 documents. These are persons mentioned by name as having perpetrated

7 crimes. These are persons who did not perpetrate only one crime, they

8 are people who consistently and constantly mistreated the detainees.

9 If we look at the actual state of affairs, the guards in the

10 camp, of whom there were six or seven or eight, that's number -- there

11 are 13 of those. We are talking of people of the same of rank. In a

12 village near Prijedor, which existed in the former Yugoslavia, this

13 village was known for its football, its soccer club, which once played an

14 important game, and it was known from World War II because of an enemy

15 offensive on the village of -- on the mountain of Kozara. In that little

16 village there was a police station, mostly manned by people who had not

17 been properly trained or schooled, had only done some training courses.

18 And these people were expected to have an overview of the general

19 situation in relation to the former Yugoslav legislation, if omission or

20 failure to act could not be a violation of international criminal law.

21 These people were expected to understand the context and avoid such a

22 situation. They were not so well informed or educated, and they felt

23 that by not acting - that is, by not hitting a detainee, or doing

24 anything to injure any of the detainees, or harm them in any way - they

25 felt that they were keeping their distance from the joint criminal

Page 168

1 enterprise by doing nothing except helping, sometimes bringing some food,

2 some medicine, within the scope of their possibilities. Because we have

3 to understand that the overall situation in Prijedor was bad. Prijedor

4 gravitated towards Zagreb and Belgrade. Both those lines of

5 communication had been cut off. There was no economy. These were poor

6 people. Apart from their employment, they had to do additional work in

7 order to survive.

8 The Defence talked about the case of Mr. Prcac. This was an

9 ordinary man who felt that he could show his disagreement by not doing

10 anything. He didn't understand the situation. The Defence put forward

11 evidence showing that he was forced to go to the Omarska camp. We would

12 never have put this forward as a ground of appeal had the Trial Chamber

13 only stated in its judgement that it did not give credence to the

14 statements that Mr. Prcac made in his interview that he gave to the

15 Prosecution. No. Instead, they said that Mr. Prcac did not mention the

16 fact that he had been forced into coming to the Omarska camp when he gave

17 his interview to the Office of the Prosecutor.

18 The Defence would like to point out that Mr. Prcac was arrested

19 on the 5th of March. He met the Prosecution for the first time on the

20 6th of March. The trial began on the 2nd of May. So a certain period of

21 time elapsed, or rather, 45 days, between his arrest and the start of

22 trial. Almost nothing had been disclosed. We did not have the complete

23 material. We still had the redacted witness statements. So the Defence

24 and the accused were not fully aware of the facts and of the fact basis,

25 and we felt that it was important for him to give an interview. He gave

Page 169

1 an interview. As you know much better than I do, an interview is a

2 situation in which the Prosecution puts questions and the accused

3 answers.

4 As we did not know all the facts in the fact basis, in the

5 Factual Basis, on the first day of the interview, Mr. Prcac gave his own

6 view of the events in Prijedor and the Omarska camp, and then for a

7 further three or four days the Prosecution put questions. And we have

8 mentioned the pages of the transcript, and so on and so forth. In that

9 interview, Mr. Prcac said that Simo Drljaca had threatened him with a

10 bullet in the forehead and that his house would be burnt down unless he

11 went to Omarska. The Trial Chamber said that Mr. Prcac never said this.

12 This is the grave error that the Defence is drawing attention to. Had

13 the Chamber said Mr. Prcac did say this but we did not give credence to

14 it, he was saying this only to evade criminal responsibility, then the

15 Defence would have viewed this as a prerogative of the Trial Chamber and

16 would not have used it in our appeal. However, the Chamber claimed that

17 he had never said this.

18 The conclusion that Mr. Prcac was administrative assistant to

19 camp commander is only one of many such errors.

20 The first error that the Defence draws attention to is the

21 situation as to whether he arrived -- whether he was coerced into going

22 to the camp, under duress. The second error of the Trial Chamber

23 consists in Mesan Omer's witness testimony. Various witnesses testified

24 before this Tribunal, trying to explain the role and contribution of

25 Mr. Prcac, and one of these witnesses described a situation in which

Page 170

1 Mr. Prcac allegedly, independently, without consulting his superiors,

2 decided -- or rather, made the decision on the transfer of detainees.

3 This allegedly took place on the 6th of August, when the camp was

4 disbanded. After the 6th of August, 174 detainees remained. They had

5 beds and food, and they were under the supervision of the ICRC, while all

6 the others were transferred to the military camp at Manjaca or the

7 Trnopolje collection centre.

8 This happened on the last day, and all the witnesses say that a

9 large number of guards were calling out detainees' names. So there

10 wasn't a single one who was especially tasked to do this. There were

11 about 1.700 or 800 men whose names were called out. They were put on

12 buses and taken away. Then a number of men appeared who were not on any

13 list, claiming that -- they claimed that Mr. Prcac had done this in order

14 to demonstrate that he made a significant contribution and could act on

15 his own initiative. Mr. Mesic said that he said: Take these men there.

16 And that therefore they were transferred to Manjaca.

17 On the basis of this, the Trial Chamber concluded that Mr. Prcac

18 acted independently during the transfer of detainees, single-handedly,

19 without consulting his superiors. But Mr. Omer did not recognise

20 Mr. Prcac. Our question is: How can we say that this actually was

21 Mr. Prcac? Although no one could conclude beyond any reasonable doubt

22 that that person, whoever it was, was responsible for the transfer of

23 detainees. This could have been somebody entirely different. But this

24 is something that was stressed by the Trial Chamber and that led to Mr.

25 Prcac being declared the administrative assistant to the camp commander.

Page 171

1 The Trial Chamber - and this is something that the Defence finds

2 especially important - is that they said that Prcac was the

3 administrative assistant to the camp commander.

4 Your Honours, the Defence never stated this. The Defence adduced

5 numerous quotations on the basis of which the real state of affairs can

6 be ascertained, and that is that throughout the proceedings, the Defence,

7 from its pre-trial brief onwards, consistently claimed that Dragoljub

8 Prcac had been brought to the Omarska camp to work on radio

9 communications and that from time to time he performed other jobs. These

10 jobs were sometimes finding a certain detainee, drawing up a list of

11 detainees who had just been brought in, or something else that he was

12 commanded to do by Zeljko Meakic.

13 In the structure of the camp, as established by the Trial

14 Chamber, there is no doubt that investigators could give orders, because

15 it was established beyond doubt that, in terms of hierarchy, the

16 investigators were superior to the security service. And this is the

17 only correct statement, the only correct piece of information, and the

18 Defence does not know how and why the Trial Chamber was able to conclude

19 what it concluded.

20 Throughout the proceedings, the Prosecution attempted to portray

21 Mr. Prcac as someone who held a position and that this was reflected in

22 the fact that he drew up lists of detainees. They drew this conclusion

23 from the fact that all the witnesses who testified about Mr. Prcac said

24 that he only occasionally walked about the compound and that he usually

25 carried sheets of paper with him. Nobody ever said that he carried

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Page 173

1 lists, or if they did say so, this was pure speculation.

2 Wishing to add weight to this, the Prosecution started saying

3 that he was in fact responsible for the lists that were drawn up, lists

4 of people to be liquidated. And, as we heard a moment ago, the Defence

5 did not wish to hide at any point from anything by saying something

6 didn't happen. We tried to find out exactly what lists were made, how,

7 and what the people from those lists had ended like.

8 We had one such witness who was responsible, in the first part of

9 the existence of the camp, for the making of all those notorious lists.

10 Asked who placed detainees into three categories - because the

11 Prosecution insisted on these three categories, that is, combatants,

12 abettors, and those to be released - categories on the basis of which

13 triage was made. And most of these were non-Serbs. This witness said:

14 It was me. I had to decide on a methodology to be used for triage, and

15 that's how we did it. And this witness explained how it came about that

16 Mr. Prcac read out a list of women who, fortunately, are all alive and

17 were all transferred to Trnopolje camp.

18 There is no evidence - except in one single case, but

19 fortunately, there are other elements of proof to the same point - there

20 is no evidence that anyone who was driven away or transferred from the

21 camp called out by Mr. Prcac was never seen again. There is only one

22 person, Eso Sadikovic, from Prijedor. He was called out by Prcac and he

23 was exhumed later in a mass grave in Hrastova Glavica, together with 124

24 prisoners from Keraterm. There is enough evidence of that to prove that

25 he was taken to Keraterm and met his death 90 days later. That's the

Page 174

1 only person who was called out by Mr. Prcac. And Mr. Prcac did mention

2 him in his interview. The Defence, in fact, claims that everything

3 mentioned by Mr. Prcac in his interview proved to be correct.

4 So, this begs the question - and I don't want to take any more

5 time of the Appeals Chamber, because you are familiar with our

6 submissions - all these errors, misquotations and misinterpretations,

7 were used in order to proclaim Mr. Prcac deputy commander of the camp, or

8 administrative assistant to the camp commander, and thus increase his

9 criminal responsibility. The Trial Chamber at no point defines his

10 contribution.

11 In one paragraph, it says that he obviously had some influence

12 among the guards over whom he had no superiority, and the same goes for

13 guards. He took care of the transfer of prisoners inside the camp, on

14 the orders of Meakic's investigators, and that is his contribution.

15 Because of all these situations that the Defence has mentioned

16 now, the Defence stressed the evaluation of credibility of certain

17 witnesses. We're not talking about minor irregularities. We're talking

18 about huge differences in testimony, huge disparities. And the Trial

19 Chamber, unfortunately, took out certain testimonies that have not been

20 corroborated by any other testimony, out of the context to place

21 Mr. Prcac in the position of administrative assistant. Without this

22 qualification, Mr. Prcac would not have been convicted. That's what the

23 Defence is trying to show. We are trying -- we were trying to show to

24 the Trial Chamber that by analysing all the evidence, it can be

25 established realistically, beyond any reasonable doubt, that his position

Page 175

1 was very low; below that of a regular guard. According to what the Trial

2 Chamber established, certain people with certain positions walked around

3 the camp. Some people gave them special meaning. At one point, it was

4 said: Witness A said this to him: And other witness said yes, they were

5 there, talking and they left. And Witness A says: Well, no, actually, I

6 didn't hear that they were giving an order, as she claimed previously.

7 There were many such cases. Without proving that position, his

8 contribution cannot be proven.

9 If we now look at the Dachau judgement, the standard is long-term

10 contribution. 22 days may be long term, even if you are not there all

11 the time. But Mr. Prcac was in the camp only 11 times, during 11 shifts.

12 I don't know if even Karadzic or Mladic, had they been in the camp at

13 all, would be able to establish order in the camp.

14 In addition, as soon as he arrived at the camp, he expressed his

15 dissatisfaction. He asked why a dead man was lying on the ground; why

16 there was no chlorine; why there was no food. Simo Drljaca answered --

17 somebody answered to him that Simo Drljaca ordered it this way. Prcac

18 brought food to the camp. Another witness was saying that she was

19 regularly called out at night, insinuating that she was maybe raped. And

20 this woman said: Mr. Prcac probably saved my life.

21 In the context of all these situations and incidents, we have to

22 bear in mind this witness who was maybe raped, said that she went to talk

23 to Mr. Prcac because he could give her comfort, and she said that my

24 family is alive because of Mr. Prcac, because he took care of them, he

25 comforted them.

Page 176

1 Many evidence was adduced here to prove that non-Serbs had to

2 sign away their property to Republika Srpska before they were able to

3 leave Prijedor. It was a statement, a legal statement. In that

4 situation, Mr. Prcac makes a document of legacy with another person. And

5 when she came back, her weekend cottage was already destroyed. The

6 apartment was no longer available because it was the property of the

7 municipality, and that's the whole story.

8 The Omarska camp existed. The conditions were inhumane. They

9 were atrocious. And that's what we should be dealing with: Who is

10 responsible for that, rather than trying to replace them by these

11 low-ranking people, trying to reason that they could somehow be connected

12 with the real perpetrators.

13 In that context, how is it impossible not to incriminate people

14 who constantly committed crimes, who did have discriminatory intent?

15 Nothing was shown before the Trial Chamber, nor was it written in the

16 judgement, to the effect that Mr. Prcac had discriminatory intent in his

17 actions. So much about discriminatory intent. The Defence will not deal

18 with it any more.

19 So all that was claimed or charged by the Prosecution has not

20 been proven. The question arises: Is the Trial Chamber entitled to go

21 beyond the scope of the indictment and decide on facts that are not

22 mentioned there, to decide that an accused is guilty of other things,

23 simply by being a member of the joint criminal enterprise? If that were

24 so, that would mean that we don't need indictments at all. It would be

25 enough to say that such-and-such a person was there, and by that mere

Page 177

1 fact was guilty.

2 After the end of the Prosecution case, the Defence made a motion

3 under Rule 98 bis for acquittal, and even then we claimed that there is

4 not enough evidence to find Mr. Prcac guilty of the charges beyond any

5 reasonable doubt. We signaled in that submission that there is not

6 enough evidence. And the Prosecution could have amended the indictment

7 at that stage. Another option open to them was to write a longer, more

8 detailed indictment that would lead our Defence to investigate into other

9 possibilities concerning the role of Dragoljub Prcac in the camp. No.

10 Throughout their case, the Prosecution claimed that he was deputy camp

11 commander, which determined his role and his significant contribution.

12 In conclusion, we should say that the Prosecution didn't appeal

13 at all. We shouldn't lose sight of those pictures from Keraterm, from

14 Trnopolje, rather, made by Penny Marshall in her programme, and that

15 immediately after the Vukovar events, this Tribunal was established.

16 Justifiably or not, truthfully or not, the Omarska camp was present and

17 highlighted everywhere as one of the greatest atrocities anywhere,

18 certainly in the territory of the former Yugoslavia. And when you bring

19 here persons accused of contributing to the Omarska camp, you don't

20 appeal. You claim that you have the structure of the camp firmly

21 established and that those are the people. When Mr. Prcac gets five

22 years, he is not expected to appeal.

23 JUDGE SHAHABUDDEEN: Mr. Simic, are you proposing to leave a few

24 minutes for questions by the Judges?

25 MR. J. SIMIC: [Interpretation] Your Honour, certainly, of course.

Page 178

1 I will be done very shortly.

2 So, in conclusion, Your Honour, I would like to stress that this

3 Tribunal was not established to settle accounts with people who were

4 physically present in an area. It has been said many times what the

5 level of this Tribunal is. It is the highest legal, judicial body in

6 this part of the world. We established that my client had the status of

7 a regular guard, he had no command responsibility. The Trial Chamber

8 went beyond the context and that it was not regular for somebody to be

9 convicted of a charge absent from the indictment. And it is not the task

10 of the Trial Chamber to save the indictment and do the job of the

11 Prosecution. It would not be awful for a Serb to be acquitted, in our

12 submission, especially if nothing in the indictment has been proven.

13 So much, Your Honour, and thank you.

14 JUDGE SHAHABUDDEEN: I'm much obliged to you, Mr. Simic. Let me

15 see if my colleagues on the Bench wish to clarify anything in your

16 statements.

17 Judge Guney wants to ask you a question.

18 JUDGE GUNEY: [Interpretation] Counsel Simic, in the course of

19 your submission, you have attempted to highlight the influence and the

20 authority that your client had at the camp. You insisted on the fact

21 that he was not camp commander. Is that true?

22 MR. J. SIMIC: [Interpretation] We said that he was not only not

23 camp commander. We said throughout the trial that he was not deputy camp

24 commander, as alleged.

25 JUDGE SHAHABUDDEEN: Yes, Mr. Simic. Please proceed.

Page 179

1 MR. J. SIMIC: [Interpretation] Well, if the interpretation is

2 correct, and if I understood the question correctly, we claimed that he

3 was not deputy camp commander, as written in the indictment, and that we

4 have proven. That was established by the judgement.

5 JUDGE GUNEY: [Interpretation] Well, I have carefully listened to

6 your submission, in which you emphasised the fact that your client was

7 replacing Kvocka between 24th of May until the 30th of August. Is that

8 true?

9 MR. J. SIMIC: [Interpretation] Your Honours, I'm sorry, but it is

10 not true. We were saying exactly the reverse. Mr. Prcac did not replace

11 Miroslav Kvocka, and even the Trial Chamber established that. And

12 therefore, will you bear with me for a minute. If he had been a deputy,

13 then he would have been deputy of the chief of security, as the Trial

14 Chamber found Mr. Kvocka to have been. But they say there is no evidence

15 of that and there is no evidence of him being the deputy commander or the

16 deputy chief of security, and that's why they proclaimed him

17 administrative assistant instead.

18 JUDGE GUNEY: [Interpretation] Well, in the light of what you

19 said, would you kindly give me your view: Who, according to you, was the

20 commander of the Omarska camp? Second: Tell me kindly, what was the

21 exact position, the exact function of your client for the duration of his

22 stay in the camp? What duties did he discharge as long as he was there?

23 I would like clarification on these two points, if possible. Thank you.

24 MR. J. SIMIC: [Interpretation] Your Honour, in view of the

25 Defence, it was Simo Drljaca who was the camp commander, or rather, the

Page 180

1 Crisis Staff. According to the witness statements, mainly Defence

2 witnesses, but also some Prosecution witnesses, Simo Drljaca certainly

3 had a major influence. The investigators, who were the most important

4 service, reported to him daily. No one could be arrested without his

5 order or approval, nor could anyone be released without his order or

6 approval.

7 Furthermore, he was the person who decided on everything. He

8 visited the camps on more than one occasion. All the services, according

9 to testimony from other cases, because I've read all the transcripts,

10 reported to him and to the Crisis Staff. We asserted all the time that

11 it was Simo Drljaca who was the camp commander. No evidence was ever

12 adduced, nor did anyone speculate, that Mr. Dragoljub Prcac was in any

13 kind of contact or relationship with Simo Drljaca. It was Simo Drljaca

14 who was the camp commander. There were four or five services acting

15 independently, but all reporting to Simo Drljaca. They were acting

16 independently of each other. They all had their positions and their

17 duties. And you also asked me about the position of the accused Prcac.

18 I have to say that Prcac came to the camp just before the camp was

19 disbanded. Before that he was a forensic technician in the Omarska area.

20 On the 15th of July, or around the 15th of July, he was brought

21 with a clear task, to maintain the radio connection, because, according

22 to witness testimonies, the radio connection was maintained by ordinary

23 guards who did not always know how to cope with the technology, so it was

24 necessary to bring in somebody who was familiar with radio technology and

25 who could maintain the connection with the police department, because

Page 181

1 there was no direct telephone line. There was one that the investigators

2 had, but it was in a locked room. And in that period, in which there

3 were 11 shifts, he was occasionally present when detainees were brought

4 in, on orders from Meakic or the investigators, and as there were no

5 records or lists, as the Prosecution wanted to show, the detainees

6 wandered around, and if an investigator wanted to question someone, he

7 had to send somebody to find this detainee and bring him to him. These

8 were the kinds of jobs that he was asked to do, to locate a certain

9 detainee, to be present when detainees were brought in. Investigators --

10 or the witnesses didn't testify to seeing him a lot because he was next

11 to the radio equipment. He had no talent, no special knowledge. He did

12 jobs that everybody did. The Defence brought mostly witnesses who had

13 been at the camp, and these were all people who did exactly the same jobs

14 as he did. A guard sometimes received detainees. Prcac didn't sit there

15 around the clock. He had his 12-hour shift, and he was always there when

16 Meakic was there. So if we look at the Celebici case, the deputy

17 commander cannot be held responsible if the commander is present. But

18 that was not the case, actually. He did only the kinds of jobs that

19 everybody did. There was nothing to set him apart specially in what he

20 did. He was not specifically in charge of any segment of the work there.

21 He did carry sheets of paper around, so somebody thought that he was an

22 administrator of some sort.

23 JUDGE GUNEY: [Interpretation] Thank you, Counsel.

24 THE INTERPRETER: Microphone for Judge Guney.

25 JUDGE GUNEY: [Interpretation] Thank you, Counsel. The principal

Page 182

1 function of your client was technical. He was in charge of radio

2 communications. But nevertheless, he did keep lists of detainees and he

3 fulfilled certain tasks of that kind. Is that task compatible with the

4 technical duty, with a technical position, and to what degree? I would

5 like to hear your opinion.

6 MR. J. SIMIC: [Interpretation] Your Honours, with all due

7 respect, I think his fundamental task could not be reduced to that of a

8 technician. This was only a part of his duties. This was something that

9 was done in all police stations or police departments in the former

10 Yugoslavia where there was an institution of a duty officer or someone,

11 and these were rotated. They switched around. There was no single

12 person tasked with carrying out this duty. So that everybody did various

13 jobs up there.

14 The guards mostly stood there. It was very warm. And Zeljko

15 Meakic, as the chief of security, probably wanted to make it easier for

16 them so that they wouldn't have to stand around all the time. So his

17 main task was not the technical equipment but maintaining the connection,

18 because the Omarska police department at that moment covered the Omarska

19 camp in providing security, and also they had to secure the village of

20 Omarska and Petrov Gaj, Kevljani, Maricke and the other hamlets. So that

21 there had to be a communications link between the police department and

22 the camp, if Zeljko Meakic had to be called in or the medical corps had

23 to be called in. This was a technical communications line that had to be

24 maintained by all the guards.

25 And as Your Honour has observed, the investigators who carried

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Page 184

1 out the triage, who decided who was to be put in what category and what

2 their fate was to be, they would be looking for a certain detainee to

3 question him. So they could ask either Prcac or a guard, or anybody

4 else, to find him. When new detainees were brought in, although in that

5 period, they were not brought in on a large scale but only individually,

6 and then again the investigators, or Simo Drljaca, as we have shown in

7 our evidence, would give names of people to be arrested, and when they

8 arrived, their details were taken down and then this was taken to the

9 investigators, who decide whether to call him in for questioning or not.

10 He did nothing unique, nothing specific, nothing that everybody else

11 didn't do.

12 JUDGE GUNEY: [Interpretation] Thank you, Counsel.

13 JUDGE SHAHABUDDEEN: May I turn to my colleagues on my left.

14 Judge Mumba has question.

15 JUDGE MUMBA: Thank you, Mr. President.

16 Mr. Simic, following your submissions on the role of Mr. Prcac, I

17 note that in sum - correct me if I'm wrong - what you're saying is that

18 he had a minor role to play in the running of the camp, albeit his

19 services were necessary for the running of the camp at the material time.

20 Is it your submission, then, that considering the minor role that the

21 appellant was playing at the camp, what he did, did not amount to serious

22 violations?

23 MR. J. SIMIC: [Interpretation] Your Honour, when I say, "Minor

24 role," what we were trying to say is that he did nothing different from

25 what all the other guards did, the guards who have not been indicted. So

Page 185

1 his actions and omissions, in our view, do not constitute serious

2 violations of humanitarian law. Otherwise, they would all have had to be

3 indicted.

4 JUDGE MUMBA: Thank you.

5 JUDGE SHAHABUDDEEN: Judge Weinberg de Roca.

6 JUDGE WEINBERG DE ROCA: Thank you very much. I have only one

7 short question. Mr. Simic, you, a few minutes ago, mentioned that the

8 Trial Chamber relied on the credibility of one witness whose testimony

9 was very different from all the others that testified on one event.

10 Could you specify to what you're referring to?

11 MR. J. SIMIC: [Interpretation] Your Honour, this is Witness

12 Nusret Sivac, and he has been specially dealt with in the final brief of

13 the Defence. We attempted to prove that he told eight serious untruths

14 before the Trial Chamber. Nusret Sivac said that he was moved from

15 Mujo's room to the pista, the concrete, because water was available

16 there, but he was the only one who claimed that Dragoljub Prcac was in

17 charge of all administrative duties in the Omarska camp. No other

18 witness said anything like that.

19 JUDGE WEINBERG DE ROCA: Thank you very much.

20 JUDGE SHAHABUDDEEN: Just one little question, Mr. Simic. If I

21 may say so, I found your submissions helpful. Would you help me to

22 understand something. I want you to focus on that part of your

23 submissions in which you said something to the effect that your client

24 really went to Omarska camp under something in the nature of duress, and

25 that he had been threatened by Drljaca with a bullet in his head if he

Page 186

1 didn't go. So I want you to focus on that.

2 Now, it is my impression that your case is that the Trial Chamber

3 misquoted some of the evidence on that point. I am entirely with you on

4 this distinction. You can have a case in which the court misquotes the

5 evidence, and you can have a case in which the court quotes the evidence

6 correctly but, for good and sufficient reasons, it does not accept the

7 evidence. Now, I have looked at paragraph 427 of the judgement of the

8 Trial Chamber on this point, as to the circumstances in which your client

9 went to Omarska and whether he had been threatened by Drljaca. Is there

10 anything in that paragraph which answers to my impression that your case

11 is that the Trial Chamber misquoted the evidence on the point?

12 MR. J. SIMIC: [Interpretation] Your Honour, let me just briefly

13 look at the judgement, please.

14 JUDGE SHAHABUDDEEN: Paragraph 427.

15 MR. J. SIMIC: [Interpretation] Your Honour, this paragraph is

16 correct. There is a paragraph in which something else is stated, that

17 the Trial Chamber was not convinced of this because Prcac never mentioned

18 any threats when he was interviewed by the Prosecution. This is in

19 another paragraph.

20 JUDGE SHAHABUDDEEN: But in this same paragraph, does not the

21 Trial Chamber say the same thing in the penultimate section -- sentence,

22 it says: The Trial Chamber notes, however, that Prcac never mentioned

23 any threats when he was interviewed by the Prosecution.

24 MR. J. SIMIC: [Interpretation] Correct. Correct. Yes. So in

25 this paragraph too, they say that.

Page 187

1 JUDGE SHAHABUDDEEN: Okay. Well, then, we will adjourn for the

2 moment and return one hour and 30 minutes later on, that is, at 2.45.

3 Yes. 2.45. Would that be agreeable, Mr. Fila? 2.45, then. We will

4 return at 2.45. Thank you, for the moment. The Court is now adjourned.

5 --- Luncheon recess taken at 1.17 p.m.

6 --- On resuming at 2.48 p.m.

7 JUDGE SHAHABUDDEEN: Thank you. Members of the bar, this sitting

8 is resumed. We will now hear learned counsel Mr. Fila -- oh, I'm sorry.

9 I didn't notice you. Go ahead, Mr. Simic.

10 MR. J. SIMIC: [Interpretation] Mr. President, I'll be very brief,

11 but I feel that there might have been a misunderstanding in response to

12 your question. So may I be allowed to give an additional explanation

13 with respect to the quotation from the judgement itself?

14 JUDGE SHAHABUDDEEN: Do forgive me. I've lost the place. What

15 place was I referring to? What paragraph?

16 MR. J. SIMIC: [Interpretation] Paragraph 427, Your Honour.


18 MR. J. SIMIC: [Interpretation] May I have your permission to

19 explain?


21 MR. J. SIMIC: [Interpretation] Your Honour, your question was, I

22 think, whether this paragraph reflects the assertions made by the

23 Defence, that is to say, that the Trial Chamber assumed the position

24 that, as Mr. Prcac never mentioned in an interview to the Prosecution

25 that he came under threat and coercion, whether this paragraph expresses

Page 188

1 that position. In the last two sentences, it says: "The Trial Chamber

2 notes, however, that Prcac never mentioned any threats when he was

3 interviewed by the Prosecution."

4 We claim in our appellant brief that he did, and I think this is

5 something that the Defence has already brought out. And then the

6 sentence reads, "The Trial Chamber is not convinced that these threats

7 took place and does not accept his assertion that he worked at the camp

8 under duress." So we claim that Prcac did mention threats and coercion

9 under which he came to be in the camp, whereas the Trial Chamber claims

10 that he did not mention it during an interview by the Prosecution.

11 So what we are saying, once again, that he was under threat and

12 it was not volitional on his part, et cetera, et cetera. That's what I

13 wanted to bring up. Thank you.

14 JUDGE SHAHABUDDEEN: Thank you, Mr. Simic. You have clarified a

15 point of importance to me. Thank you very much.

16 Then we will hear you, Mr. Fila, for Mr. Radic.

17 MR. FILA: [Interpretation] Your Honours, Mr. President, ladies

18 and gentlemen, Your Honours. This is a trial that has lasted for six

19 years. It is a little unusual, if we compare it to all the others that I

20 have taken part in, because three sets of Prosecutors have replaced each

21 other, with three approaches to this case and these proceedings. And the

22 proceedings have ended a little strangely as well, unusually. There is

23 no appeal from the Prosecution with respect to the sentence itself, the

24 number of years, but nothing with which we started out with is to be

25 found in the judgement. I was a little surprised because I never

Page 189

1 understood one point. If I assert something and the Court does not find

2 that that is so, that I could pass over that and then accept what the

3 Court says and not what I was presenting as the case.

4 If you look at the transcript, I dealt with the Statute quite a

5 bit, the Statute of this august Tribunal. At the beginning of this very

6 lengthy trial, I commented and objected to the differences in this

7 Statute and the statute of the court in Rwanda, and you will remember

8 that it was Common Article 9 of the Geneva Conventions. And the Trial

9 Chamber ruled that I was not right. That was not a happy event for me,

10 but what can I do? I have to move on and accept it.

11 The second point that I dealt with was Article 2 of the Statute

12 of this Tribunal and its definition of what serious violations of the

13 Geneva Conventions means. I would be very happy if, after eight years

14 spent in this Tribunal, we could clear that matter up, or rather, you

15 could clear that matter up for us once and for all.

16 Now, why am I asking this? I am asking not only because this is

17 something which concerns me in the sexual attacks with respect to

18 Mr. Radic, who is my client. If something is a serious violation, then

19 there is something that is not a serious violation, although the

20 violation of any human right is a serious matter. But there must be some

21 differentiation in quality between what is serious, serious violation and

22 just a violation.

23 Now, bearing in mind your very long experience, especially you,

24 Mr. President, in the previous court, I'm sure you will come up with that

25 solution and give it to us.

Page 190

1 Now, the question arises whether this is in my interests as a

2 lawyer per se or as my lawyer in this case. You will see that when it

3 comes to sexual assault - if I can put it that way, to put it under this

4 heading of sexual assault - there are four individuals who said that

5 Mladjo Radic performed some sort of improper acts towards them. Now, we

6 questioned that he ever did anything of that kind. And I want to say

7 that at the outset, not to have to enter into polemics later on, either

8 with the judgement or the Prosecution's response, et cetera, et cetera.

9 The position of Mr. Radic is that none of that is true, so that there was

10 no acquiescence or anything like that. Let's forget that, and it's not

11 essential in this case either.

12 Now, whether these acts, or rather, what is the question that I

13 wish to put here and now? If we were to exempt rape, leave rape out,

14 would the other four acts represent serious violations of the Geneva

15 Conventions, as is stated, without the act of rape itself? Probably not.

16 However, the second question that comes to mind in this regard is

17 that if once we establish that a camp such as Omarska, it has been

18 established without doubt that there were serious violations of human

19 rights - not only of the Geneva Conventions, but human rights as well.

20 So once you have generally established that there were serious

21 violations, then each and every act of violation which is not a serious

22 violation can become a serious violation because it comes within this

23 general heading of serious violations. So that is the problem that has

24 been bugging me for a number of years now.

25 And one of the judges will remember the Dokmanovic trial where

Page 191

1 the charges were that he watched for three and a half minutes while

2 people were beaten at Ovcara and we had a lengthy discussion as to what

3 this meant. He had died since and we never learnt about it. Had he

4 remained with us, and it was Judge Mumba, she would probably have brought

5 in a judgement and then I wouldn't have to ask this question. But that

6 is the important question and point, as far as I'm concerned.

7 Now, the third question that I should like to raise once again

8 has to do with the Statute. It is Article 7(4), in fact, of the Statute.

9 We are discussing an indictment here under 7(1) and 7(3) and we have

10 established that there was no 7(1) but that there was Article 7(1)

11 accountability and 7(3), and the Trial Chamber established that, as well

12 as the fact that the Crisis Staff was formed in Omarska camp, and this

13 was established on several occasions, and that Drljaca was a sort of

14 commander. But one thing is incontestable, that the police station

15 department of Omarska quite certainly, not only beyond reasonable doubt,

16 but beyond any doubt at all, has anything to do with the organisation of

17 that camp -- at all, in any way.

18 So we have as something that is incontestable that an order is

19 arriving and that the police station department - and I emphasise the

20 word department because there is nobody else there but the chief, who is

21 Medic [phoen]. All the others were ordinary policemen. So what we have

22 is this: We have the police station department in Omarska which pursuant

23 to an order one morning has to provide security for that camp, the

24 Omarska camp.

25 Now, if we look at Article 7(4) carefully of this Statute, which

Page 192

1 is in fact the result of the Nuremberg trials that orders do not justify

2 the execution by a subordinate of those orders but can be a mitigating

3 circumstance, I am worried that nobody has dealt with that question, and

4 I think that it is a very important question, especially when we come to

5 the lower-level individuals, down the chain of command. Of course, we

6 can't talk about this at the Milosevic trial, for example, or Sainovic,

7 who is my client, because that is a very high level, top level. But

8 we're now talking about the lowest level, right down the chain of

9 command. And this is referred to in Article 7(4), and so this is worthy

10 of discussion, this matter, I believe.

11 I don't like to try anybody's patience, and so I will end there

12 as far as the Statute is concerned.

13 Now, as far as the appellant's brief is concerned itself, I would

14 like to say that it has been written in a fair amount of detail. I'm

15 sure you have read it. That is normal. And so has the Prosecution

16 because I have read their response, and I have replied to the

17 Prosecution's response.

18 I have an apology to make. At one point it says that the camp

19 was in existence for two months. I apologise. That was a mistake. It

20 was in existence for three months. That is the only typographical error

21 that exists in the appellant's brief.

22 But now it is not my intention to repeat what I say in the brief.

23 I know that you are people who understand what has been written down and

24 don't have to be told things three times. But I would nonetheless like

25 briefly to go through the brief and indicate that some of these five

Page 193

1 reasons, the five grounds for appeal that I have set out are to be

2 expounded.

3 In the first grounds for appeal, the reasons we set out is the

4 right to the accused to a fair trial. Because I consider that the

5 judgement did not reflect that. And I set that out in three parts

6 myself. As a form of criminal liability, the confidential schedules and

7 facts as to conduct. I'm going to say just one or two sentences about

8 each of these three points, because I consider, particularly because I

9 belong to continental law and our source is Roman law, as you know full

10 well. The Yugoslav Criminal Code was shaped according to the German

11 Criminal Code and it is like that today and dates back to the kingdom of

12 Yugoslavia, to the dark periods of Communism and it's true to the present

13 day. But we always link up the identity of the indictment and the

14 judgement, if I could put it that way, and that is a holy Bible for us.

15 We abide by it. So when we deliberate in this way, our deliberations

16 sometimes are like a horse with blinkers on when he is pulling a cart.

17 That is how we view an indictment, like a horse with blinkers on.

18 With all due respect to Your Honours, I have not seen here

19 anything like the identity of the indictment and the judgement and the

20 rapport between the two. Let me digress. The difference between the

21 public at large and we lawyers is that we are well versed in the law and

22 not in the facts. Anybody can see the facts. You go to the cinema, you

23 see some facts presented to you. If we do not adhere to form, if we do

24 not respect form and structure our results will be catastrophic and it is

25 the form and structure which is important and it means that each

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Page 195

1 individual must know what he is being accused of. Not in any of the

2 amended indictments is there criminal liability as a joint criminal

3 enterprise. No liability for that. It just does not exist. In the

4 introduction it says Keegan said so-and-so. But, as I say, three

5 Prosecution teams replaced each other during the Prcac trial alone.

6 So outside the Statute, leaving aside the statutory questions,

7 which I'm sure you'll solve in the proper manner, let me clarify. Is the

8 indictment important or is it just a general act? And having said that,

9 let me remind you that in the introductory address of the late

10 Dokmanovic, Mr. Niemann, who I otherwise respect, says that the

11 indictment is not there to deal with matters of that kind, but that it

12 should say that the person that I am charging has committed some criminal

13 act and it is up to the Court to determine which. Because if the

14 Prosecutor defines the criminal acts, he runs the risk of going wrong,

15 making mistakes and then having the accused go free. And I think that

16 was what one of your members said at one time.

17 However, pursuant to Rule 50, with the -- or rather, the

18 Prosecution violated Rule 50 by amending the indictment by putting

19 forward the facts and evidence during the trial itself. So we're dealing

20 with Rule 50 and the amendment of the indictment and how this was done by

21 the Prosecutor. And as far as that is concerned, let me end with one

22 sentence, quoted from your own judgement, in which you say the following:

23 The Trial Chamber rather states the basic purpose of an indictment is to

24 offer the accused a description of the acts committed, with sufficient

25 detail for him to be able to prepare his defence and that therefore it

Page 196

1 must articulate the specific acts that the accused is alleged to have

2 committed.

3 So that is your judgement in the Kupreskic case. And let me

4 follow on in that same vein. In Krnojelac, it says concrete

5 characteristics and precision is what is required of the indictment. And

6 in my own appellant's brief this is what I say myself, because you have

7 legal practice taken from many other case and proceedings.

8 Now, I'd like to say a few words about confidential schedules.

9 And by a decision of the Trial Chamber, and we are appealing on that, the

10 dilemma has been cleared up as to what confidential schedules actually

11 mean, and the Trial Chamber has rendered the decision that it is part and

12 parcel of the indictment. However, the object of our appeals brief is to

13 concretise the indictment and not to mask over its individual parts and

14 to give additional details to the accused of the crimes he is alleged to

15 have committed and for which he has been charged.

16 Because these are the requests, I'm coming back to the Statute

17 now, Articles 18 and 21. But for this Trial Chamber, the previous Trial

18 Chamber whose decision we are appealing, does not deal with that. It

19 does not say anything about the facts that are contained in the schedule,

20 in the confidential schedules and in that way thereby making the rights

21 of the accused. Because as I said, the Trial Chamber is violating the

22 spirit of the Rules of Procedure and Evidence by declaring the accused

23 guilty in relation to certain counts but failing to mention the incidents

24 which are contained in the relevant counts.

25 Then we again come to evidence about the consistency of

Page 197

1 behaviour. This is something that continental law does not recognise but

2 the Anglo-Saxon law does, and I respect that. What are we doing? We

3 have Witness AT. The trial says: The alleged rape of AT was not

4 mentioned in the amended indictment because of fairness to the accused,

5 you cannot introduce charges against him in the middle of a trial without

6 prior notice. For us, this was like a stone dropping from the sky. I

7 would like you to look at the indictment under which Radic was arrested.

8 He was charged with the rape of one single person, Witness A, of which he

9 was acquitted here.

10 To this very day, there is footage on television, Dutch, Bosnian,

11 all televisions, that this same witness in another case, her testimony

12 was accepted and she is saying that she was raped. Even Judge Riad

13 participates in this TV footage. This is something that the Trial

14 Chamber did not believe and this should be a mitigating circumstances.

15 And the Prosecution did not object to that, even though they insisted in

16 the Tadic case and insisted on that in this case here. And we have case

17 closed. The witness is not held criminally liable, and the Bosniak

18 intelligence service then finds a new witness. And now we will come to

19 the witnesses later.

20 But here again I'm talking about the legal aspects. Facts is

21 something that we should not discuss with you. Let's discuss legal

22 issues now, and above that we are -- in that matter we have above just

23 lay people in this legal sense. We are talking about Rule 93(B) now.

24 What does it say? It says that we should be informed about what is going

25 to happen, that the client should be informed about what is going to

Page 198

1 happen. Do you know why this was not done? Because the Prosecution did

2 not even know what they were going to use Witness AT for and that is why

3 they didn't do that and simply 93(B) was not respected. These are

4 violations of the Rules of Procedure, which would have an effect under

5 Article 25 of the Statute to these proceedings.

6 I'm not saying that the Trial Chamber was biased towards the

7 Prosecution. Why would it be so? I have a very esteemed opinion about

8 each single member of the Trial Chamber and their contribution to the

9 case is priceless. But, unfortunately, are we making something here that

10 we have unfortunately in our law, let us save the indictment at any cost?

11 So that as far as consistency, consistent pattern of conduct is

12 concerned, this rule is being violated. And once you violate the form,

13 then the decision cannot be proper. Which means that I am claiming that

14 in accordance with Rule 93, what was violated is violated the right of

15 the accused to a fair trial, as well as the Rules of Procedure. And

16 therefore, truth was violated as well.

17 Our next ground for appeal, I'm going to deal with this in a

18 summary fashion. In my second pattern, I talked about the form of

19 criminal responsibility, and I'm speaking about this in two parts, joint

20 criminal enterprise - it's difficult to translate into Serbian - and the

21 role of the accused in this joint criminal enterprise.

22 Now again we're talking about the question of theory, according

23 to the position of the Defence. I'm not claiming that we are right, but

24 this is my opinion, this is our take. The Trial Chamber must prove or

25 show evidence that would demonstrate that the accused was part of that

Page 199

1 joint criminal enterprise that the accused Mladjo Radic was a part of

2 that, and as a co-perpetrator at that. However, I did not find anything

3 like that in the judgement. None of us normal, sensible people could say

4 that Omarska is something that everyone has to be ashamed of. Of course,

5 this is -- we're not denying that, and this is the opinion of this Court

6 as well. We're talking about Omarska, Vukovar, and other places. But do

7 you know what the most terrible injustice is? You are qualified to be

8 just. We're talking about a completely different type of people who were

9 involved in those things.

10 What I would like to say, I would give you my reasons why these

11 things cannot apply to the accused. You know very well from written

12 information that Omarska was founded and established by an order of Simo

13 Drljaca. Is it difficult, then, to understand what a small police

14 department, a small village police department, is? Mladjo Radic had the

15 lowest possible police rank. There was nobody below him. He was just a

16 plain patrolman. They called him Krkan. He liked to eat. That was his

17 nickname. And he lives in a village where probably the biggest problem

18 is if somebody steals a chicken or gets drunk in a cafe.

19 I'm not separating him in the sense that I wanted to imply that

20 everybody else is bad. But what I'm saying is that a war has broken out.

21 Nobody wanted this war. Some of them were even married to these

22 Bosniaks. This war broke out that nobody wanted, and a person called

23 Simo Drljaca, who was a nothing before that, forms some kind of camp, and

24 they are ordered to go there. Would you please look at the interview of

25 Mladjo Radic, and you will see typical things: I came to the bus station

Page 200

1 and they told me today you are going to Omarska. So can we not establish

2 the physical and psychological state of that man, what his state of mind

3 is, what is his position, what is he doing at all? And then suddenly we

4 pushed him into something in order to justify some kind of indictment.

5 Well, we probably do have people who are responsible for

6 something like that. We have Zeljko Meakic, who was the head of

7 security, and this was finally established. When he was arrested, he was

8 the commander of the camp. When they were arrested he was the commander

9 of the camp. He was even charged with genocide, which was later dropped,

10 but I just wanted to remind you of that. But not to dwell on this too

11 much.

12 We have all of these things that were said, bad water -- the

13 water is still bad. I've even brought samples. The water that they

14 drank in 1992, they're still drinking today. It's a difficult question

15 that there were insufficient quantities and that the living situation was

16 different, but the actual quality of the water is the same now as it was

17 then.

18 I stated at the beginning and I stated that consistently and the

19 Trial Chamber accepted that there was an uncontrolled willfulness

20 prevalent in the camp. And this is clear.

21 And then we must understand that if there was wilfulness, if

22 anybody could beat or kill whomever they wanted, how is it possible for a

23 police officer of the lowest rank to participate in something like that?

24 I'm stating this on purpose. I absolutely accept the position of the

25 Appeals Chamber about the three categories required for a joint criminal

Page 201

1 enterprise. There is no dispute about that. That is how it is. It is a

2 decision that you made, and in the same way I'm asking you to decide on

3 these other issues.

4 But where is Mladjo Radic in all of this? We are discussing all

5 these matters. They don't even go for aiding and abetting, as far as

6 Mladjo Radic is concerned, but they go directly to him being a

7 co-perpetrator. Where is the explanation for that? There is no

8 explanation.

9 The first conditions need to be met that he's a co-perpetrator,

10 that is, direct intent. What kind of a direct intent can we talk about?

11 He's given an order and then he's told you'll be there for three or four

12 days. And this is what the Trial Chamber accepted. When they accepted,

13 they went there for two or three days, or three or four days, but it

14 actually ended up lasting for three or four months. So the first one is

15 direct intent.

16 For the second case --

17 THE INTERPRETER: The interpreters ask the counsel to read that

18 back again. Thank you.

19 MR. FILA: [Interpretation] So what is his position? There is

20 this film that they're constantly showing against him where you can see

21 him with a machine-gun across his chest. It just indicates that he is a

22 plain police officer, and this is what we are claiming from the

23 beginning. Which other leaders did you see with a picture of him taken

24 at a guard post with a weapon? You know that guards usually are at guard

25 posts. We didn't see Simo Drljaca have a picture of himself taken in

Page 202

1 this way.

2 And now he says that an aider, an abettor can be somebody and

3 they can become a co-perpetrator if this act lasts for a longer period of

4 time or if he personally participants in it.

5 If we leave aside the rape, with all due with respect to the

6 Prosecutor who does not wish to have anything left aside, but I still

7 would like to leave certain things aside in my explanation of the appeal

8 grounds. So if we leave that aside, what is it that stays? And we will

9 discuss this later.

10 JUDGE SHAHABUDDEEN: Mr. Fila, you mentioned a second case, and

11 at that point the interpreter asked you to read that back again. What

12 did you have to read back? You don't know it.

13 MR. FILA: [Interpretation] No. Okay. No problem.

14 [Interpretation] Well, it doesn't matter. We will read something

15 else. Never mind.

16 And now the Defence would finally like to say that the Trial

17 Chamber, in spite of these three conditions, did not say what is the

18 participation of the accused Radic in all of that? What part did he play

19 in all of this? In the Krnojelac case, the second Trial Chamber, Trial

20 Chamber II, said that the responsibility for common purpose is required

21 evidence that the accused is implicated to a considerable degree in the

22 implementation of such acts. Perhaps he is, and perhaps he's not, but

23 that is not said explicitly. And if it is, if he did, then it should be

24 stated. So this is the position that I quoted. There's no need for me

25 to go into it again.

Page 203

1 So allow me to conclude. The Trial Chamber, deciding on the

2 guilt of the accused Radic for persecution, failed to determine the

3 pre-conditions as they were given in the previous paragraph. They do not

4 determine the existence of agreement, shared intent with those committing

5 the crime, together with those who are committed that [as interpreted].

6 And who did the persecutions? The Crisis Staffs, Simo Drljaca, and these

7 were just the people who were implementing it, in the same way as cooks

8 were implementing it. I cannot determine the difference. Radic's wife

9 was a cook in that camp; she was baking bread and making food and taking

10 it up there. Had she not taken food up there, they would probably have

11 left their guard posts and these others would then have escaped. But we

12 cannot go that far. I know the Munchausen case. My father was there for

13 two years. I know what this looks like, and I know that it is terrible.

14 But there has to be a limit somewhere. We must place a boundary

15 somewhere. And that is, with all due respect, your task specifically for

16 us to -- to tell us what the boundaries are. From here to here, we have

17 grave violations of the Geneva Conventions, and from here to here it is

18 not. We have local courts, thank God, and these things then can be tried

19 over there.

20 I believe that the Trial Chamber erred when they held that the

21 participation of Radic was assessed as considerable. First of all, he

22 had to have been a part of that in the military sense, as a

23 co-perpetrator, because that is what he was charged with and then his

24 acts also need to be significant. And again, I do not see that

25 significance. I reiterate that for as long as I'm talking about this, I

Page 204

1 ask you to leave aside the rape. So in a part of my submissions, I'm

2 making him equal to Kos.

3 I did not manage to see it. It is nowhere explained in the

4 substantial judgement what is the accused Radic's substantial

5 contribution in these acts, including ethnic cleansing, killing, but also

6 persecutions, that for sure. And then I must conclude that the Trial

7 Chamber, the standards that it set applied in the wrong way, and the

8 standard was to determine or establish considerable participation in the

9 joint criminal enterprise. And I did not see that there in the

10 judgement.

11 The third ground of appeal are persecutions. I did say a lot

12 about that already, and there's no need to say much more because we will

13 all be dealing with that issue. I allow that you've already heard that

14 from one Simic. You will hear about it from the other Simic. I share

15 their opinion and therefore I can skip the next 50 pages of my appeal.

16 The fourth grounds, and I mention that on page 31, is that the

17 factual basis was wrongfully established for grounds number 4, that his

18 participation in the acts in Omarska were greater than they were and that

19 also his role in connection to what the other guards perpetrated was also

20 wrongfully perpetrated. It was established that inmates were killed and

21 ill-treated by anybody, whoever wanted to do so, without any

22 encouragement from anybody else. People did not listen to his orders,

23 Radic's orders.

24 Conditions in the camps and how it all was, the Trial Chamber

25 also itself found that this had nothing to do with Radic, and so I don't

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Page 206

1 know why it would be significant what -- what the significance of his

2 acts would be within the whole framework of the camp if these things are

3 not considered to be important.

4 So my position is that the Trial Chamber wrongfully concluded

5 about the role of Mladjo Radic in the Omarska camp, as I have already

6 said several times. And now I would like to move to the most important

7 point of my appeal.

8 As you can see, I'm trying to spare you from too many details.

9 With the liability under 7(3) of the accused, we contested this

10 because we said that it wasn't clear whether he had effective control

11 over the guards. And in dubio pro reo, he was freed of that charge.

12 However, if he did not have that, what separated him from the other

13 guards? What set him apart from the other guards? Because when you

14 answer one question, you must answer the next one. If the Trial Chamber

15 found that he did not have any control, then how was he different from

16 the others? And this brings me to my starting point, that the

17 witnesses, numerous witnesses asserted that Mladjo Radic was a guard like

18 everybody else, and the Prosecution found that the others should be

19 tried, if they are brought to trial, in their own country and not be

20 brought to the Tribunal here.

21 I feel the need to say this now, and it refers to Mr. Radic's

22 assistance to certain detainees. There's a story going round among the

23 detainees and among the Defence counsel that it was dangerous to try and

24 prove before this Trial Chamber that somebody helped somebody, because if

25 they didn't help anybody out, then they say that he was inhuman because

Page 207

1 he didn't help anybody out. Now, if he did happen to help somebody out,

2 then this is a grievous circumstance because it means he had authority to

3 do that. So it's a very dangerous point. You have to look at things

4 black and white, in a black-and-white way, and as we all know, life is

5 never black and white. We have direct and indirect evidence, and you'll

6 see this from the testimony of all witnesses who said that he did indeed

7 help them. One from Australia was heard by a Prosecutor, Mr. Niemann.

8 He said that -- this witness said that he had saved his life, in fact.

9 The number of people who Mladjo Radic helped in one way or another

10 amounts to about 150.

11 Now, why didn't he help everybody? Well, if every guard helped

12 150 detainees, and there were 20 to a shift, and there were never 3.000

13 people in Omarska camp at any one time. So if everybody had just helped

14 150, that's no small number, is it, and does that make matters worse?

15 When everybody who was helped, they said he did it secretly, not through

16 force of his own authority, but clandestinely so that other people

17 wouldn't see. You have a detail, when he brings in bread, for example,

18 he leaves the bread there and when he leaves, another guard takes up the

19 bread. Is that that famous principle of authority, the term authority

20 that prevails here? Because we're afraid of saying that people helped

21 each other because in doing so we would recognise the command structure

22 in the camp.

23 And we saw that he -- when he did assist people he never assisted

24 them pursuant to orders. He did it indirectly. Witnesses would say that

25 he helped them as a friend, as a man. He did what he could to make their

Page 208

1 lot better.

2 I felt the need to tell you this along with something else. You

3 can see that the term Krkan's shift is used. Don't forget one more

4 detail which is a very important detail. He's an active-duty policeman.

5 He is the eldest active policeman, and he served in all the surroundings

6 villages, Ljubija and whatever. Everybody knew him. He was an

7 active-duty policeman, as the others were reservists or whatever. And

8 that's why they referred to his shift as Krkan's shift because they

9 recognised him. He recognised the people, the people recognised him. If

10 they couldn't recognise anybody, those people are not here today. They

11 weren't put on trial here.

12 And finally, the most important point, or rather, it's not the

13 most important point, but I'd like to say it nonetheless. We cannot

14 believe everybody a priori, of course. I indicated Witness A's

15 testimony, for which he was imprisoned, and she said on television that

16 she was raped. When she was on television, she stated her full name and

17 surname. Here she was a protected witness and was assigned a pseudonym.

18 But we have ascertained that the shifts lasted -- the court ascertained

19 that the shifts lasted 12 hours. And then he says that perhaps Hase Icic

20 cannot remember how long the shifts were. How wouldn't he remember when

21 he saw -- if he saw someone in the morning and saw him then again in the

22 evening? Of course he remembers but he didn't see Mladjo Radic in the

23 evening if he saw him at all.

24 And shifts could not have lasted longer than 12 hours.

25 Then we have witnesses who speak about the fact that everybody

Page 209

1 could do what he wanted over there. And don't forget that there were 20

2 people to a shift and very often they didn't know each other, these

3 people who were working on the shifts together. And the shifts and the

4 composition of those shifts was not determined by any of the accused, if

5 anybody who turned up was just there and did his job.

6 Now, before I go on to the question of rape I should just like to

7 raise one basic question once again, and that is that the Trial Chamber

8 quite simply failed to establish, and that is my main objection, which

9 acts Radic should have undertaken and did not undertake, or rather,

10 whether he was able to do anything. If we have that there was general

11 anarchy reigning in the camp with everybody doing what they saw fit. So

12 if he failed to do that, you cannot hold him responsible for what the

13 guards committed, guards whom he never even saw from his vantage point

14 and his shift. And I have already explained in greater detail why he's

15 not responsible for the conditions that prevailed in the camp.

16 And this brings me to something that I hold dearest to my heart

17 when it concerns my client, Mr. Radic. It is least important for him

18 what you're actually going to decide with respect to his role in Omarska.

19 He is not proud of having been there. None of them are proud of having

20 been there as you were able to see, nor does he want to shirk

21 responsibility for being there. However, placing his destiny and fate

22 before you, let me repeat that he has three sons, he has a wife. He was

23 threatened that they would be sent to the army and then be killed. And

24 he asked to be replaced because he saw people whom he had previously

25 worked with being brought to Omarska. He went to Simo Drljaca, and Simo

Page 210

1 Drljaca sent him packing and said, "Do your job." So he felt that

2 something was amiss.

3 But that is not the essential point here. What is essential,

4 both for him and for myself, is that we prove to this Trial Chamber that

5 there was no rape concerned. They broke his shoulder when they arrested

6 him. He is a permanent invalid. He suffers from diabetes; he is being

7 given an insulin [as interpreted] today. But all that is, once again,

8 not essential. What is essential is face, to preserve face. In a war,

9 people fight, but people do not rape in a war. So I entreat you that you

10 pay special attention to that part of my appeal.

11 I should like to ask you to scrutinise very well, in minute

12 detail, to see how it is possible for violations in the proceedings --

13 how to force proceedings along the lines of him being proclaimed guilty.

14 And when I spoke of the Statute, I spoke of those four individuals and

15 whether there was anything there or not.

16 But Witness K, let's look at the testimony of Witness K. In

17 1993, she was interviewed and said no. She said to the papers no. She

18 kept saying that the commander of Keraterm security, Dusko Sikirica,

19 committed rape. But nobody believes her, neither the Prosecution nor the

20 Trial Chamber. (redacted)

21 (redacted)

22 (redacted)

23 (redacted) . But of course you, as a court of

24 law, will be able to have access to that transcript.

25 And suddenly in 1995, she thinks of saying something like that,

Page 211

1 of claiming it. And then these hallucinations begin. She says the

2 morning, then she says the evening, then she says it was up there, then

3 she says it was down here. Then she says, "Witness Vinka brought me,"

4 whereas she said that he was a good man. And she said that he said --

5 that he was a good man towards Muslims and Vinka is a Serb. So why would

6 he -- would his conduct towards her have been bad if he had

7 discriminatory intent? There is no discriminatory intent towards members

8 of one's own ethnic group. That's quite another story. Vinka was

9 proposed as a witness to say that she did not take her to Mladic -- to

10 Radic.

11 You had the whole model of Omarska camp before you. You saw that

12 investigators beat up people throughout the day. So how could this man

13 have raped with all these 200 people around or 200 people? You can see

14 the video footage. She thought all this up. She conjured it all up.

15 Because in preparing this, we were able to go through her biography to

16 establish that she was mentally deranged, that she was taken to Court

17 several times, that she spent her time stealing television sets, and that

18 is why -- whereas she was brought into Court [as interpreted]. So what

19 can I find in the space of five or six days, given those circumstances?

20 There are one or two differences, they say. What do you mean,

21 one or two differences? Take a look at each of her statements. There

22 are no two statements that are the same, and that is the key point. That

23 is why I ask you to scrutinise, to look into it carefully. Give him 200

24 years, sentence him to 200 years imprisonment if you like but he has to

25 live with this. He has three sons, he has a wife who visits him. So if

Page 212

1 he did commit that act, he should be held responsible. But what if he

2 didn't? And he was arrested because of A. And he was -- Witness K gave

3 testimony in 1993 in the Office of the Prosecutor, and says that, no,

4 this did not happen in Omarska. In 1995, he says to Mrs. Brenda Hollis

5 that nobody had asked him anything along those lines. We found that from

6 1993. And then she said, well, that was something else again.

7 So the Court says she was ashamed. How could she be ashamed if

8 she says -- ashamed of having been raped by Mladjo Radic if she said that

9 Sikirica raped her over and over again?

10 THE INTERPRETER: Could the speaker please slow down.

11 MR. FILA: [Interpretation] We say that one third of sentencing

12 for rapes are not always in place, but we also know that out of shame,

13 people don't report rapes. So there is no woman that has been raped and

14 is proud of it. She always feels shame.

15 But how come she is not ashamed because of Keraterm and suddenly,

16 in 1995, she states that this happened to her in Omarska and that it

17 happened once and then turns this round and round. She says it was in

18 the morning, then she says it was in the evening, it happened like this,

19 it happened like that. And the Trial Chamber found that her testimony

20 was unreliable generally. There is no criminal act that I hate more than

21 the crime of rape, believe me when I say that. That is the most

22 atrocious crime. And if it is done with discriminatory intent, then it

23 is even more horrendous. But we have no discriminatory intent here.

24 Just remember all the stories that the witness said. She said it

25 was like this, then she said it was like that, and then it was

Page 213

1 established that she had construed the whole thing.

2 In each of Witness K's segments and parts of her testimony, there

3 are things that were impossible. In 1995, she said -- she told Brenda

4 Hollis that she wasn't raped. Then she said she was raped at night, then

5 she said she was raped during the day. Then in answer to all the

6 questions she says, "Well, I don't know, but I suppose that what I said

7 to Ms. Hollis was right."

8 So rape is not an act you can forget. It is not the same as

9 whether I ate an ice cream three or four days ago. So that from the

10 Sikirica case, and I'm saying this because this happened subsequently,

11 the Keraterm judgement came subsequently, and we can see clearly there

12 that nobody believed her.

13 The Prosecution presented the arguments saying that you can

14 believe one and not another person, but this is new. Keraterm didn't

15 believe her. And you'll be able to see that in Sikirica plea agreement.

16 In the document, all the details are there.

17 And as I've already said, the testimony of Vinka Andzic is

18 manipulated. We only asked her one thing, "Did you take this woman out

19 or not?" She said no and that's it. And that's the whole value of her

20 testimony.

21 We now come to Witness AT, once again a legal question, for the

22 second time, a legal question brought up for the second time. What does

23 that mean? What should it mean? Does it mean that the Rules of

24 Procedure and Evidence must be applied --

25 JUDGE SHAHABUDDEEN: May I ask you--

Page 214

1 THE INTERPRETER: Microphone, please, Your Honour.

2 JUDGE SHAHABUDDEEN: May I ask you very kindly to attend to the

3 clock.

4 MR. FILA: [Interpretation] Yes. I've almost finished. I've left

5 this to the end. Otherwise I'll be repeating myself.

6 So with respect to Witness AT and an attempt at the witness -- at

7 the rape of Witness J, let's look at how this has been presented. And

8 finally, the last point is the question of the fact that Witness J tells

9 the same story where two men are concerned. She applies it to two

10 individuals.

11 Rule 93 was not applied properly, once again. And finally, and

12 that will be my conclusion, as far as the sentence is concerned, I have

13 set it all out in writing and I think it would be superfluous for me to

14 explain the mitigating circumstances that you will find set out in the

15 document.

16 Thank you for hearing me out. I wasn't going to take an hour,

17 but you know what lawyers are. I seem to have taken longer. Thank you.

18 [Appeals Chamber confers]

19 JUDGE SHAHABUDDEEN: Judge Weinberg de Roca would like to ask

20 you --

21 THE INTERPRETER: Microphone, Your Honour, please.

22 JUDGE SHAHABUDDEEN: Judge Weinberg de Roca would like to ask you

23 a question.

24 JUDGE WEINBERG DE ROCA: Thank you, Mr. President.

25 Mr. Fila, you mentioned that the accused should often be tried by

Page 215

1 the local courts. And in this case, is this because the Yugoslav Penal

2 Code rape involves permanent and lasting injury of the victim and

3 simultaneous use of force and threat? Is this why you're suggesting that

4 rape was not -- did not occur in this case?

5 MR. FILA: [Interpretation] No. No. No, heaven forbid. No.

6 Don't underestimate my powers of reasoning, please. If he did commit

7 rape - if, if - then you are responsible for finding him guilty. The

8 position of Mr. Radic is that he did not commit rape. If he did, of

9 course, you are the competent authority to judge. Now, as triers at a

10 local level are concerned, the reason that I mention that is that the

11 fact that the Prosecution gave up on the other 13, on trying the other 13

12 guards, was this: I said that if some criteria was set, then Mladjo

13 Radic was just like these other 13, and a man named Pavlic said that he

14 had owned up and said that he had killed a man. None of these people

15 have said that they killed anybody or are here for having killed

16 somebody, which is the gravest crime, of course, with rape. So my answer

17 to you is no, no, that is not what I claimed. Thank you.

18 JUDGE WEINBERG DE ROCA: Thank you, Mr. Fila. Also you

19 concentrated very much on the testimony of Witness K, which you examined

20 when the trial. But there were also other witnesses, Witness J, Witness

21 F, Witness Susic, and Witness Cikota. You didn't mention those but only

22 spoke about Witness K. Is there a specific reason?

23 MR. FILA: [Interpretation] The reason is that in the beginning,

24 when I spoke about the Statute, I said that as far as I'm concerned, the

25 fact -- what those four persons are saying, as far as I'm concerned, is

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Page 217

1 not true because that is what Radic claims. This is one thing. But if

2 it were true, without the rape of Witness K, these are not grave

3 violations of international law, according to my opinion. And this is

4 the decision that you need to rule on, independently looking at it. I

5 hope that I was clear. And this is why I did not deal with this matter.

6 If you were to establish - and I hope that you will - that Witness K was

7 not raped and that AT cannot be considered to be typical conduct, because

8 that was not presented properly, would you believe that then there was an

9 occurrence of a grave violation of international humanitarian law in

10 relation to what those four other witnesses said independently, out of

11 context? And this is why I wanted you to clarify Article 2 of the

12 Statute. What these grave violations are. Because if somebody had said

13 what the grave violations are, there must have been violations which were

14 not of such a grave nature.

15 This is why I skipped over this in less detail. I don't know if

16 this answer is satisfactory.

17 JUDGE WEINBERG DE ROCA: Thank you very much, Mr. Fila.

18 JUDGE SHAHABUDDEEN: Mr. Fila, I am obliged to you for your very

19 stimulating submissions. I would like to benefit more from your thinking

20 than time allows. So I'll confine myself to two little areas.

21 Now, Judge Weinberg de Roca adverted to your submissions

22 regarding Witness K. Now, just suppose, just suppose that the Bench were

23 inclined to agree with you that there was no rape in the case of that

24 witness. Would that be sufficient to allow the appeal, or would we have

25 to go a further step and to say that, as you do, the Appeals Chamber must

Page 218

1 be satisfied that no reasonable tribunal of fact could have found as the

2 Trial Chamber did find? Would your submissions go as far as that? Would

3 you say that not only didn't the evidence warrant the conclusion that

4 rape occurred, but that no reasonable tribunal of fact could have so

5 found?

6 MR. FILA: [Interpretation] Allow me to respond, Your Honour. I

7 don't think that you will like the answer. I don't understand the term

8 "reasonable trier." Does that mean that I need to claim now that Judge

9 Rodrigues, Judge Riad, and Judge Wald were unreasonable triers? That

10 would be terrible. I hope that you will not tell me that I am

11 unreasonable, even though you have every right, because you are a Judge.

12 I don't understand the sense of that term. I was there. We all saw

13 Judge Rodrigues off. So can how can I look you in the eye and say you

14 did not reach a reasonable decision -- and I know your entire curriculum

15 vitae. I don't understand this criterion. I don't get it.

16 But it's part of continental law. If I had written in an appeal

17 that a judge had reached an unreasonable decision, that would be contempt

18 of court, where I come from. So this is something that I will not say.

19 But I will say that such a decision could not have been reached. But I

20 will not say that this was an unreasonable decision. Thank you very

21 much.

22 THE INTERPRETER: Microphone, Your Honour, please. We cannot

23 hear you.

24 JUDGE SHAHABUDDEEN: I understand your protestations against the

25 concept of a judge being unreasonable. Nevertheless, this concept

Page 219

1 occurs, as you well know, in the legal systems of many countries, one

2 applies a test as to whether a reasonable trier of fact could have come

3 to that --

4 MR. FILA: [Interpretation] Not in my book, Your Honour.

5 JUDGE SHAHABUDDEEN: And I could give you examples, if I were

6 minded to and if time allowed. But unfortunately we are prisoners of the

7 chronometer.

8 Now let me turn to a second area in which I need the benefit of

9 your help.

10 MR. FILA: [Interpretation] If you permit me, Your Honour, I will

11 tell you in one sentence. What I am concerned about is the fact that it

12 was definitely established that Witness A was not speaking the truth and

13 that we have switching of issues here. This is what is concerning me

14 here. Not unreasonableness, but switching of facts. While the witness

15 who claimed in two proceedings that she was raped is not objecting. So

16 this is the most that I can provide by way of an explanation. Thank you.

17 JUDGE SHAHABUDDEEN: Let me see if I can benefit from your

18 thinking in the short time that remains. So I turn to the second area of

19 curiosity. You were talking about Mr. Radic, and you said he had the

20 lowest possible police rank. Now I can see an argument to the effect

21 that the rank of the accused has a certain relevance. If the charge

22 against him is based on command responsibility, you want to show he had

23 some authority. But would you say the argument rings as true if the

24 charge against him is based on joint criminal enterprise?

25 MR. FILA: [Interpretation] No. The reason why we mentioned his

Page 220

1 low rank is that I believe that when one enters a joint criminal

2 enterprise, enters into a joint criminal enterprise, I'm not imagining

3 this to be like the Knights of the Round Table where we sit and we

4 conceive of a joint criminal enterprise. This is not something that you

5 see in a cartoon. I mean, it's something that you can accept later. But

6 the required degree of volition and degree of intelligence, and we have

7 findings here by psychiatrists and psychologists. This is a man who is

8 obedient. He is not aggressive. Just see how he was described as a

9 family person: The father of three sons, spent his whole life without

10 advancing in his profession. He's just a merry person. So such a

11 structure of personality to me does not fit into this type of enterprise.

12 So this is the sense in which I referred to it. This personality type

13 does not fit into that kind of activity. And perhaps this applies to the

14 other two as well. Thank you very much.

15 JUDGE SHAHABUDDEEN: Thank you, Mr. Fila. Thank you very much.

16 Now -- yes, Mr. Prosecutor.

17 MR. CARMONA: Yes, Your Honour.

18 THE INTERPRETER: Microphone, please.

19 MR. CARMONA: Your Honours, I just wish to bring a particular

20 matter to your attention, and it concerns particularly part of the

21 submission of my learned friend with regard to confidential information,

22 with regard to a particular witness. I think it is an irrelevant fact,

23 may warrant redaction. Because I do recall quite, quite lucidly that, at

24 trial, applications were made by the Defence to adduce evidence with

25 regard to the medical record of certain witnesses and this was rejected

Page 221

1 by the Trial Chamber. And this matter in fact was not pursued.

2 The Prosecution is deeply concerned that attempts have been made

3 by the bar table to adduce evidence based on private conversations

4 emanating thereof. And in the circumstances, we are requesting, in fact,

5 that the Court consider redaction of that particular area. I didn't want

6 to interrupt my friend because he was in full flight. But I thought the

7 exigencies of justice demand that the witness's confidentiality is

8 maintained and maintained resolutely in the circumstances.


10 MR. FILA: [Interpretation] First I would like to thank you for

11 not interrupting me. That is very kind of you. The second thing I

12 wanted to say is that this is not private information that we're talking

13 about. If you look properly, you'll see that there was a meeting between

14 the Trial Chamber and the Prosecution about the state of health of the

15 person that we referred to. That was an inter partes meeting that we

16 discussed. And you can find that. Ms. Hollis probably has that matter

17 covered. And you will see. Ms. Hollis initiated this matter, not me.

18 JUDGE SHAHABUDDEEN: Is there any question of confidentiality

19 which is involved?

20 MR. FILA: [Interpretation] No, no. There was a meeting between

21 the Prosecution and the Trial Chamber, and you have that on this matter.

22 This is what I mentioned. But I did not mention the actual state of

23 affairs.

24 JUDGE SHAHABUDDEEN: That evidence is on public record, in the

25 normal way?

Page 222

1 MR. FILA: [Interpretation] I think that it is not. No, it is

2 not. But later --

3 JUDGE SHAHABUDDEEN: What Mr. Carmona is suggesting --

4 MR. FILA: [Interpretation] Mr. Carmona was not there. I received

5 this information through private channels. There was a meeting where

6 there was a question about this, and there was a Trial Chamber decision

7 whether this witness can or cannot -- I don't want to discuss any more of

8 it. Perhaps Mr. Carmona doesn't know all the information referring to

9 this matter. But Ms. Hollis is still here. Perhaps she would be able to

10 inform you.

11 MR. CARMONA: I am indeed privy to the said applications that

12 were made by counsel. I am -- I don't have it in my possession. But in

13 any event, what I'm concerned about, and my friend obviously is aware of

14 it, that this particular information would have in fact been inter partes

15 and was not public information.

16 JUDGE SHAHABUDDEEN: Yes. Mr. Fila, what is being suggested is

17 that the references to this incident be redacted from today's transcript.

18 It wouldn't affect the outcome of the case, in any event.

19 MR. FILA: [Interpretation] I have nothing against that. I just

20 reacted to this point that it was a privately received information. No,

21 it is not. I could not privately find out about such a meeting. This is

22 what I wanted to clarify.

23 JUDGE SHAHABUDDEEN: Madam Registrar, would it be possible to

24 make the redactions?

25 THE REGISTRAR: Yes, Your Honour. We could redact it. But

Page 223

1 it's -- I believe it may be too late to redact it from the transcript

2 live.

3 JUDGE SHAHABUDDEEN: Would it be possible for you to redact as

4 much as possible?



7 MR. CARMONA: I'm much obliged.

8 JUDGE SHAHABUDDEEN: On that note, we will take the adjournment

9 until tomorrow at -- what time? At 9.30. 9.30 a.m. tomorrow. Thank you

10 very much.

11 --- Whereupon the hearing adjourned at 3.59 p.m.,

12 to be reconvened on Wednesday, the 24th day of

13 March, 2004, at 9.30 a.m.