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Page 49

1 presentations. This hearing will unfold pursuant to the order --

2 Scheduling Order of the 8th of July, 2011.

3 I would like now to ask Milan Lukic counsel to make their

4 submissions. Let me remind you that you have one hour and 15 minutes. I

5 now turn to you, Milan Lukic's counsel, you have the floor.

6 MR. VISNJIC: [Interpretation] Thank you, Your Honours.

7 We have divided our submissions into two parts. In the first

8 part, I will be speaking about certain omissions made by the

9 Trial Chamber regarding identification evidence, identification of the

10 appellant; and at the end, Mr. Dan Ivetic will address the questions you

11 have posed in your 6 September order.

12 Your Honours, I begin with the hopefully uncontentious

13 observation that in times of crisis and conflict, certain individuals

14 become infamous by reputation, rumours spread like wildfire, legends are

15 born. Myths are created by elements of truth, by falsity, and by

16 exaggeration. A face is perceived when it could not in reality have been

17 present.

18 The Trial Chambers of this Tribunal face the difficult task of

19 sifting through evidence of horrendous crimes to establish beyond

20 reasonable doubt what happened and who is responsible. Your Honours, the

21 experience of criminal justice systems around the world shows that claims

22 of identification and recognition are fertile ground for miscarriages of

23 justice. This is well-known ...

24 [Appeals Chamber and Legal Officer confer]

25 MR. VISNJIC: [Interpretation] Thank you. This is well-known and

Page 50

1 so the law has developed to address obvious risks. Objective

2 identification procedures are used, such as identification parades or

3 independently vetted photo-boards. The first time a witness is

4 interviewed by the police or a prosecuting authority, interviews are

5 recorded to ensure that words are not put into a witness's mouth. A

6 witness is asked for detailed descriptions of a perpetrator. If the

7 witness thought that they recognised the perpetrator, the basis for the

8 recognition is established. When the case finally comes to court, legal

9 principles govern the assessment of any identification evidence. Why?

10 Because even at that stage the risk exists of a miscarriage of justice.

11 The trier of fact must methodically scrutinise the evidence against the

12 right legal standards.

13 [In English] Yes, thank you.

14 [Interpretation] The Appeals Chamber of this Tribunal has

15 summarised the standards in successive cases, for example, Kupreskic,

16 Kvocka, and Limaj, among others. These standards were recently confirmed

17 by the Appeals Chamber in Haradinaj. The relevant parts of those

18 authorities set out the approach that a Trial Chamber should take to

19 identification evidence. The Trial Chamber in this case did not direct

20 itself to the binding standards that should have guided its assessment of

21 the identification evidence before it. In the section of the trial

22 judgement where the Trial Chamber set out the law around evidentiary

23 matters, there is no mention of the relevant authorities. That's 1D

24 section of the trial judgement. Neither did the Trial Chamber direct

25 itself to or apply the relevant authorities when reviewing the evidence

Page 51

1 in relation to the six crime sites. Why is this important? What impact

2 did it have on the judgement?

3 After all, as the Prosecution observes, the Presiding Judge had

4 noted during the course of the trial that identification was an essential

5 issue in the case. Moreover, as the Prosecution points out, the

6 Trial Chamber did consider some of the identification evidence in

7 relation to each crime site. Your Honours, the point is this: We do not

8 deny that at times the Trial Chamber considered the types of factors one

9 would expect it to consider had it indeed directed itself to the relevant

10 authorities. But, Your Honours, that is not enough. We say that the

11 Trial Chamber's failure to direct itself to the relevant law meant that

12 it did not have the correct standards in mind when considering the

13 evidence identifying perpetrators in this case. That the Trial Chamber

14 touched upon some of the relevant considerations by chance does not mean

15 that it scrutinised those factors with sufficient rigour, nor does it

16 change the fact that it missed other relevant considerations entirely.

17 Of particular concern, Your Honours, is the Trial Chamber's

18 approach to claims by certain witnesses that they were able to recognise

19 Milan Lukic as a perpetrator. In particular, the Trial Chamber accepted

20 claims of recognition, in many instances made years later, without

21 scrupulously examining the basis for claimed recognition or considering

22 the possibility that a claim of recognition was genuinely or otherwise

23 mistaken. The Trial Chamber even held that witnesses recognised

24 Milan Lukic when the Prosecution had conceded in its closing brief that

25 there was an insufficient basis for recognition.

Page 52

1 The most glaring example of this is Witness VG-13, perhaps the

2 most important Prosecution witness in relation to the Pionirska Street

3 fire and the only witness who claimed that they saw Milan Lukic place the

4 explosive device into the room.

5 Your Honours, at paragraph 157 of its closing brief, the

6 Prosecution said that the evidence did not clearly establish that VG-13

7 could be described as a recognition witness. However, the Trial Chamber,

8 no doubt influenced by its failure to direct itself to the correct legal

9 standards, held that VG-13 had solid prior knowledge of Milan Lukic, such

10 that she recognised him. That's in paragraph 612 of the trial judgement.

11 This witness also claimed to recognise Mitar Vasiljevic as being

12 present during the Pionirska fire, a point to which I will turn later in

13 due course.

14 The Prosecution says that the Tribunal jurisprudence has adopted

15 a common-sense proposition, namely, that recognition evidence is

16 generally more reliable than identification evidence. We say that this

17 does not accurately reflect the jurisprudence and is a dangerous

18 submission. In our brief, we explain how recognition evidence is not

19 necessarily more reliable than identification evidence. We have all

20 experienced that sense of thinking we have recognised an old acquaintance

21 when it turns out to be somebody completely different.

22 Your Honours, with your leave, we will make brief submissions on

23 the impact of the Trial Chamber's error in relation to each specific

24 crime site. Before doing so, however - and again with your

25 permission - I would like to address you on two issues. The first issue

Page 53

1 is the impact of the repeated in-court identifications of Milan Lukic by

2 Prosecution witnesses during the trial. We say that this is relevant to

3 every single crime site. The second issue is the Trial Chamber's

4 treatment of the evidence surrounding the alleged presence of

5 Mitar Vasiljevic in Visegrad on key dates. This is relevant to the

6 Pionirska Street fire and also the Bikavac incident.

7 Concerning the identity of the accused in the courtroom, the

8 identification of the accused in the courtroom, I would like to present

9 four points. The first point is to emphasise the prejudice made to the

10 appellant by in-court identifications. It affected negatively the

11 consideration of the Trial Chamber of the evidence given by witnesses who

12 claimed to recognise Milan Lukic in the courtroom.

13 Your Honours, in the recent Haradinaj case, the Appeals Chamber

14 recognised that even when individual decisions might have normally been

15 within the scope of the Trial Chamber's discretion, the context of a

16 trial can require the Trial Chamber to proactively focus on ensuring the

17 fairness of the proceedings. The approach of the Appeals Chamber in

18 Haradinaj was to review the Trial Chamber's decisions cumulatively rather

19 than individually.

20 Your Honours, in our respectful submission, you should adopt the

21 same approach when addressing the impact of in-court identifications in

22 this case. Even if an individual in-court identification was

23 permissible, the Appeals Chamber should consider the impact of the

24 repeated in-court identifications on the judgement.

25 The circumstances of this case were not normal. The case against

Page 54

1 Milan Lukic turned almost exclusively upon the evidence of eye-witnesses

2 being asked detailed questions about what they saw some 16 years ago.

3 For example, in relation to the Pionirska Street fire, whether VG-13 was

4 able to identify Milan Lukic as the person who opened the door and threw

5 an explosive device inside when it was night-time and there was no

6 electricity inside the room.

7 We say that where identity is in dispute and the case hinges upon

8 the ability of witnesses to accurately identify the accused as a

9 perpetrator - especially after the passage of so many years - it unduly

10 prejudices any defendant to ask a witness to identify the perpetrator for

11 the first time in court. We say that the Prosecution should have

12 performed a fair out-of-court identification procedure. We say that the

13 approach adopted in this case denied Milan Lukic the fundamental

14 protection offered by more objective identification procedures.

15 Your Honours, if the Prosecution was so certain on the

16 reliability of its identification evidence, why did it not systematically

17 use a fair out-of-court procedure? Why did it not follow the procedures

18 set out in the Tribunal's manual of developed practices? It would have

19 nothing to lose, but the fairness of these proceedings had everything to

20 gain.

21 The repeated in-court identifications of the appellant in court

22 resulted in at least two kinds of prejudice to these proceedings.

23 Firstly, we question the ability of any trier of fact to ignore a witness

24 identification of the accused in the dock as the perpetrator they say

25 they saw commit a horrendous crime against them or others. The

Page 55

1 Prosecution says that in general, although not always, the Trial Chamber

2 relied upon evidence of prior knowledge and recognition and not the

3 in-court identifications. We say that the language of the

4 Trial Chamber -- trial judgement defies what actually happened.

5 For example, in relation to the Bikavac fire, two of three of the

6 Prosecution's main witnesses identified Milan Lukic in court, VG-58 and

7 VG-115. The Trial Chamber relied upon these witnesses' supposed

8 recognition of Milan Lukic, despite holding that neither witness had

9 stood up to cross-examination.

10 In one part of the judgement the Trial Chamber held that

11 Witness VG-58 was evasive and indeed her first witness statement

12 contained no reference to Milan Lukic in relation to the Bikavac

13 incident. In another part of the judgement, the Trial Chamber held that

14 Witness VG-115 did not stand up well under cross-examination. You can

15 find more details of this in our appeals submission 101 and

16 102 paragraphs and other paragraphs as well.

17 Yet, despite these findings the Trial Chamber held that

18 Milan Lukic had been identified by credible and reliable witnesses. We

19 say that this does not stack up and that the obvious factor behind this

20 shift is that when asked if they could identify who they saw was the

21 perpetrator, they pointed to Milan Lukic sitting in the dock.

22 Secondly, the practice of in-court identification prejudices the

23 witnesses' own evidence. By being asked to pick out the accused in the

24 courtroom, it is artificially reinforced in their mind that it was the

25 accused who they saw commit a crime. For example, in relation to the

Page 56

1 Pionirska Street fire, Witness VG-13 was one of numerous witnesses who

2 identified Milan Lukic in court, claiming that they could recognise him.

3 We say that VG-13's evidence changed significantly after picking

4 Milan Lukic out in court. Before that, there was little hard evidence of

5 prior knowledge, such that the Defence could test her claim to recognise

6 Milan Lukic rather than simply implicate him because he was notorious.

7 However, after identifying him in court the witness began to allege all

8 manner of prior knowledge. The Trial Chamber proceeded to find that

9 Witness VG-13 had solid prior knowledge of Milan Lukic.

10 Your Honours, the Prosecution had conceded at trial - and I quote

11 from the Prosecution's closing brief - VG-13 had heard of Milan Lukic

12 prior to that day, but it was on that day she recalls seeing him for the

13 first time. That's paragraph 156 of the Prosecution closing brief.

14 There it is, Your Honours. The Prosecution itself could see that rumour

15 and myth played a factor in VG-13 placing Milan Lukic on Pionirska Street

16 on the 14th of June, 1992. We say that VG-13's claim to recognise

17 Milan Lukic was polluted by her being allowed to identify him in court.

18 The Prosecution conceded as much at trial, albeit it now tries an

19 inelegant U-turn on appeal.

20 We would also note, Your Honours, that the Prosecution points to

21 the evidence VG-13 gave under cross-examination as showing that she was a

22 recognition witness.

23 [Appeals Chamber and Legal Officer confer]

24 MR. VISNJIC: [Interpretation] Your Honours, this demonstrates

25 that she had not been established as a recognition witness at the point

Page 57

1 in the court identification was attempted.

2 Second point, in-court identification by recognition witnesses.

3 The submission that the Trial Chamber correctly allowed in-court

4 identification by recognition witnesses is our second point. Our

5 preliminary observation is that this is not a fact what happened in

6 trial. There is no clear demarcation between identification witnesses on

7 the one hand and recognition witnesses on the other hand, such that

8 different legal standards can apply to one compared to the other. The

9 reality, as the Office of the Prosecutor conceded in the Tadic case, is

10 that there is often a grey area when recognition is hazy or uncertain and

11 hotly disputed.

12 The Trial Chamber sought to distinguish the Limaj appeal

13 judgement, the Kunarac appeal judgement, and the Kamuhanda appeal

14 judgement at the ICTR and contends that while in-court identifications

15 should be discouraged in relation to identification witnesses, there is

16 no problem when they are conducted by recognition witnesses. We say that

17 the Trial Chamber misstated the law, in the international law, when it

18 said that such cases should be distinguished.

19 For our second point is that the jurisprudence of this Tribunal

20 did not allow for weight to be placed upon in-court identifications by

21 recognition witnesses.

22 Your Honours, our third point in relation to in-court

23 identification is to address the Prosecution's submission that the

24 Trial Chamber did not actually place any probative weight on them, save

25 in relation one of the six crime sites, the Uzamnica detention camp. The

Page 58

1 Prosecution conceded that the Trial Chamber did place probative weight on

2 the in-court identification of two witnesses to beatings in the Uzamnica

3 detention camp. These are Witnesses Dervisevic and Berberovic, and the

4 relevant paragraph of the judgement is 828.

5 We say that the key point is that the Trial Chamber considered

6 that it had to put weight on these in-court supposed recognitions of

7 Milan Lukic, because otherwise there was insufficient evidence that these

8 witnesses were in fact able to identify Milan Lukic as the perpetrator.

9 Following the Prosecution's logic, there was insufficient

10 evidence of prior knowledge and identifying information provided by these

11 witnesses. Generic descriptions of physical characteristics that could

12 fit almost anyone are insufficient. In relation to Berberovic and

13 Dervisevic's descriptions of Lukic's background, this was their evidence

14 many years after the events. It was not what they had said at the time.

15 Can we dwell briefly on the Trial Chamber's reasoning here. The

16 Trial Chamber held that Berberovic and Dervisevic were recognition

17 witnesses, but Berberovic's evidence was that he learned that the

18 assailant was called Milan Lukic from Dervisevic, but Berberovic also

19 testified that Dervisevic also had problems with his eyesight such that

20 he could not see properly. Berberovic also said that another individual,

21 the elusive watchman Muratagic told him that this man was Milan Lukic.

22 The Defence was not able to cross-examine this individual as to whether

23 he really did tell Berberovic that or whether he really was able to

24 recognise Lukic. The Trial Chamber considered it had to rely upon these

25 in-court identifications on Milan Lukic because the other evidence

Page 59

1 against him was so weak. We ask that the Appeals Chamber rule that no

2 weight should have been placed on these court identifications. It

3 inexorably follows that the finding that Berberovic and Dervisevic were

4 able to recognise Milan Lukic must be overturned.

5 Fourth and last point we want to address in relation to in-court

6 identifications is this. We say that the Trial Chamber's error is

7 demonstrated by its treatment of the failure of its star witness to the

8 Bikavac fire, Zehra Turjacanin, to be able to identify Milan Lukic in

9 court. At paragraph 724 of the Trial Chamber's judgement, the

10 Trial Chamber simply said that it placed little weight on her inability

11 to pick Milan Lukic out in court. It gave no explanation as to how or

12 why it could reach such a conclusion. We say that the Trial Chamber

13 erred in law and in fact.

14 To be clear, our submission is --

15 [French on English channel]

16 MR. VISNJIC: There is a problem.

17 [Interpretation] The Prosecution submits that the

18 Trial Chamber -- I would like to clarify that Defence is not claiming

19 that the failure of a witness to recognise a defendant in the court must

20 necessarily mean that all of their identification evidence is excluded.

21 For example, in Limaj, the Appeals Chamber referred to the approach in

22 Kvocka as meaning that a failure to identify an accused can simply be a

23 reason for declining to rely on the evidence of a witness. We concede

24 that, yes, it can be a reason, but it must be considered carefully and

25 explained.

Page 60

1 In our case, the Trial Chamber simply didn't grasp this nettle.

2 It didn't explain how it could ignore Zehra Turjacanin's inability to

3 identify Milan Lukic in court. We are left to scratch our heads. We say

4 the Trial Chamber merely accepted Zehra Turjacanin's claim to recognise

5 Milan Lukic and failed to properly deal with the difficulties with this

6 witness's evidence. These submissions are outlined in paragraphs 245 to

7 257 of our appeal brief and paragraph 98 of our reply brief.

8 Your Honours, this concludes my submissions in relation to the

9 conduct of in-court identifications.

10 I would propose that we move next on the issue I identify which

11 is the Trial Chamber's treatment of the evidence surrounding the alleged

12 presence of Mitar Vasiljevic in Visegrad on June the 14th, 1992. This is

13 relevant primarily to the Pionirska Street fire but also has implications

14 for the Bikavac incident.

15 Your Honours, before we move to the error made by the

16 Trial Chamber, it may assist you if I begin by making clear why we say

17 the presence or absence of Mitar Vasiljevic is relevant to Milan Lukic.

18 Whether or not Mitar Vasiljevic was present on Pionirska Street split the

19 Trial Chamber. The majority found that Vasiljevic was present, whereas

20 Judge Robinson dissented and found that Vasiljevic could not have been

21 there, just like the Trial Chamber had in Vasiljevic's own case.

22 If a witness is demonstrably mistaken, even lying with respect to

23 the presence of Mitar Vasiljevic, that must be considered with respect to

24 the credibility of their claim that they were able to identify

25 Milan Lukic as being there alongside with Vasiljevic. The point is

Page 61

1 reinforced because Vasiljevic was the more well-known of the two. He was

2 the waiter who everybody knew.

3 The majority Trial Chamber relied on the evidence of VG-13,

4 VG-37, VG-78, and VG-101 and held that those witnesses were credible such

5 as to establish the presence of Mitar Vasiljevic was present on

6 Pionirska Street. The Trial Chamber relied upon those same witnesses to

7 establish the presence of Milan Lukic at key points. For example, VG-13

8 said that it was Mitar Vasiljevic together with Milan Lukic who closed

9 the door of the Adem Omeragic's house on Pionirska Street as the

10 incendiary device was thrown inside. VG-13 said that when they were

11 inside Adem Omeragic's house, Mitar Vasiljevic shone a torch up at the

12 windows looking for anyone trying to escape while Milan Lukic fired

13 shots. Your Honours, this relates to paragraphs 163 and 164 of our

14 appeal brief. This witness claimed to have been able to recognise both

15 Milan Lukic and Mitar Vasiljevic. If a witness is obviously mistaken as

16 to the presence of one, that remains as to the presence of the other.

17 Therefore, if you find that the Trial Chamber erred in law and

18 fact as to the presence of Mitar Vasiljevic, you must consider its impact

19 on the Trial Chamber's finding as to the presence of Milan Lukic. We

20 have elaborated this in our subground 3(E) of our appeal brief.

21 Your Honours, this concludes the Defence submissions with regard

22 to the importance of Vasiljevic's presence during an incendiary event at

23 Adem Omeragic's house in Pionirska Street. And now we would like to

24 address you on the impact of the Trial Chamber's failure to consider the

25 binding standards in relation to each of the six crime sites.

Page 62

1 I would like to start with the Drina River incident.

2 Your Honours, there were four witnesses to the shooting on the banks of

3 the Drina River on 7 June 1992. They were VG-14 and VG-32 who were

4 survivors. Mitar Vasiljevic was one of the shooters and was convicted

5 separately for his part. VG-73 witnessed events from the other side of

6 the river. The Trial Chamber did not rely upon his evidence as being

7 capable of identifying Milan Lukic, and so we do not address this

8 witness's evidence at all.

9 Dealing firstly with Mitar Vasiljevic, Witnesses VG-14 and VG-32

10 testified against him in his own trial. We say in subground 1(F) of our

11 appeal brief that having heard their evidence, Vasiljevic's evidence was

12 bound to be what he thought would be most likely to get him off the hook.

13 Those witnesses thought that they had seen Mitar Vasiljevic with

14 Milan Lukic. Vasiljevic thought that there was a good chance that he

15 would be convicted. The incentive was there for him to corroborate

16 aspects of their evidence while seeking to minimise his own involvement.

17 Knowing that Milan Lukic had not been arrested and thinking he never

18 would be, Vasiljevic implicated the other person that VG-14 and VG-32 had

19 said was there and sought to shift the blame onto that second person.

20 Your Honours, the Trial Chamber failed to examine this

21 likelihood. Its reliance on the evidence of VG-14 as corroborating

22 Vasiljevic's story is insufficient. Vasiljevic's incentive was to

23 corroborate VG-14's story. VG-14 claimed that he recognised Milan Lukic

24 even though he hadn't seen him since they were 16 in 1984. There is no

25 direction in the trial judgement to the danger of mistaken recognition in

Page 63

1 such circumstances.

2 In VG-14's first statement after the shootings, which was in

3 1998, six years after the incident, he describes Milan Lukic as somebody

4 who has a distinctively large birthmark on the right side cheek.

5 Your Honours, the Prosecution tries to diminish this aspect of VG-14's

6 evidence by suggesting that VG-14 referred to a birthmark or a mole. But

7 in the first statement we have, albeit six years after the crime, his

8 words are that the birthmark was distinctive and large. The Prosecution

9 says that the Chamber relied on VG-14's demeanour. We say that even a

10 confident and a convincing witness can be mistaken and misleading. The

11 failure of the Trial Chamber to direct itself to such possibilities in

12 the treacherous field of identification evidence results in miscarriages

13 of justice.

14 VG-32 did not know Milan Lukic either, as we explain in

15 paragraphs 46 through 49 of our appeal brief.

16 [Appeals Chamber and Legal Officer confer]

17 MR. VISNJIC: [Interpretation] The proper course for the

18 Prosecution would have been to perform objective out-of-court

19 identification procedures. The Trial Chamber should have set out the

20 relevant legal principles and applied them. Neither of these things

21 happened.

22 Let us turn to the Varda factory incident. The Trial Chamber

23 relied primarily on the evidence of Witness VG-42. Your Honours, the

24 primary witness in this case identified, or rather, claimed that she was

25 able to identify Milan Lukic from at least 50 metres, someone who on her

Page 64

1 own evidence had last seen Lukic when he was a child. Your Honours, we

2 say that the Trial Chamber utterly failed to give the necessary scrutiny

3 to such a claim. We say that this witness exaggerated what she was able

4 to see as the years had gone by.

5 Of particular importance, Your Honours, is VG-42's first witness

6 statement given in 1993. In that statement she doesn't identify

7 Milan Lukic as the perpetrator of that crime, albeit, Your Honours, she

8 does associate him with crimes around Visegrad. It was only in 1998 that

9 this witness identified Milan Lukic for specified crimes including the

10 disappearance of her husband. The trial judgement fails to properly

11 scrutinise the likelihood that VG-42 misidentified the shooter because of

12 the distance involved. Similarly with VG-24, the Trial Chamber failed to

13 consider the possibility of mistaken recognition. VG-24 had

14 misidentified Milan Lukic on at least two occasions. The Trial Chamber

15 erred by simply diminishing these misidentifications.

16 Overall, there was no evidence that Milan Lukic was indeed the

17 shooter. The standard of proof in relation to this crime site was far

18 short of that which an international criminal tribunal should accept.

19 With regard to the Pionirska Street incident we would like to say

20 the following. The criteria witness of the fire at Adem Omeragic's house

21 on Pionirska Street were VG-13, VG-78, and VG-101. Each of these

22 witnesses claimed that Mitar Vasiljevic was present and we have made

23 submissions on this point already. Witness VG-13 was not a recognition

24 witness and the Prosecution conceded as much as trial. On appeal the

25 Prosecution reverses its position and contends that there was ample

Page 65

1 opportunity for VG-13 to recognise Milan Lukic.

2 Your Honours, the Prosecution must be held to its initial

3 position and the position was that VG-13 did not know Milan Lukic but

4 implicated him subsequently. The Prosecution had no other evidence that

5 Milan Lukic had started the fire, and just as the Trial Chamber in the

6 Vasiljevic case held that the stress of the situation undermined VG-13's

7 identification of Mitar Vasiljevic, the Trial Chamber should have made

8 the analogous conclusion in this case.

9 Witnesses VG-78 and VG-101 are sisters. They claim that they

10 went to school with Milan Lukic some ten years before the

11 Pionirska Street incident. The Trial Chamber failed to scrutinise such a

12 weak basis as a claim for recognition. Your Honours, you should compare

13 the scrutiny that the Vasiljevic Trial Chamber gave to the evidence of

14 these witnesses compared to the approach of the Trial Chamber in this

15 case. The Vasiljevic Trial Chamber rejected the evidence of these

16 witnesses as being unreliable because it had scrutinised them to a

17 greater degree, having set out the factors it would consider in

18 paragraph 16 of that judgement.

19 In relation to the question of lighting, the Trial Chamber

20 completely failed to consider the difficulties encountered when

21 attempting to identify someone at night. The Prosecution says that there

22 were various light sources that made it possible to see the perpetrators,

23 and we say that this just wasn't enough. We have no clear indication

24 that the Trial Chamber scrutinised the level of lighting involved and

25 what it would have looked like to the witnesses involved. Simply

Page 66

1 pointing to the odd source of light on the evening of the 14th of June,

2 1992, as the Prosecution seeks to do, is insufficient.

3 The key witnesses in relation to Bikavac are Zehra Turjacanin,

4 VG-58, and VG-115. The Trial Chamber held that Milan Lukic's presence

5 was established by credible and reliable witnesses. We have already

6 addressed you in relation to Zehra Turjacanin's testimony already. She

7 could not have recognised Milan Lukic because she didn't know him.

8 Rather, she implicated Milan Lukic and his group on the basis of apparent

9 notoriety. We note that she also implicated Mitar Vasiljevic in the

10 Bikavac fire, but, as we know, Mitar Vasiljevic had broken his leg badly

11 only a week beforehand and could not feasibly have been present. Indeed,

12 the Office of the Prosecutor withdrew all charges against Vasiljevic in

13 relation to Bikavac.

14 In relation to Witnesses VG-58 and VG-115, the Trial Chamber held

15 that they were evasive, they did not stand up well under

16 cross-examination, yet inexplicably these clear findings were not

17 considered in the final analysis. Had the Trial Chamber considered the

18 proper legal standards and applied them consistently throughout the trial

19 judgement, it would have been bound to reject the evidence of these

20 witnesses. The fundamental inconsistencies in the accounts of these

21 witnesses, which the Trial Chamber itself recognised, necessitated the

22 rejection of their evidence.

23 Your Honours, we criticise in particular paragraph 718 of the

24 trial judgement. It is a short paragraph, only two sentences long, but

25 we say that the two sentences contradict each other. No reasoning was

Page 67

1 given as to how the Trial Chamber could rely on the evidence of these

2 witnesses in the face of its finding that they were evasive and

3 undermined by cross-examination.

4 Your Honours, the Trial Chamber's consideration and assessment of

5 the evidence surrounding the killing of Hajra Koric was inadequate. Two

6 witnesses gave evidence about the killing of Hajra Koric, VG-35 and CW-2.

7 VG-35 alleged that she recognised Milan Lukic because he had raped her,

8 but, Your Honours, VG-35's description of the rapist did not match

9 Milan Lukic. Her first statement described a man with blue eyes and

10 birthmarks or moles all over his body. Your Honours, how is it simply

11 possible for a Trial Chamber properly directed to the relevant standards

12 to ignore such evidence?

13 Similarly, in relation to Witness CW-2, this witness first

14 described the assailant as having blond hair. The Trial Chamber failed

15 to direct itself to the importance of witnesses' initial accounts of the

16 events before they've had a chance to change as the years go by.

17 Moreover, in her 2008 statement this witness suggests that some other

18 Chetnik fired the first shot, that's 1D228.

19 Moreover, Your Honours, the Trial Chamber could not reject these

20 issues saying that the witnesses were not undermined in

21 cross-examination. It had to explain how it could possibly accept such

22 fundamentally contradictory evidence from the same witnesses. Concerning

23 the impact of identification regarding Uzamnica events, we have already

24 made submissions in subgrounds 6(A), 6(B), and 6(C) of our appeal.

25 I would now like to move to a brief conclusion. Your Honours,

Page 68

1 Milan Lukic and others were notorious in Visegrad in 1992 because they

2 had fought in the war and killed many Bosnians in combat. There were

3 also numerous other allegations flying around, as there are in all

4 conflicts. Most of these accusations remained untried and untested. In

5 any event, the stories about Milan Lukic snowballed, fuelled by the fears

6 of an escalating ethnic conflict. But this does not lessen the burden of

7 this Tribunal to ensure that the necessary standard of proof is applied

8 equally in all cases and to ensure that the right people are held

9 responsible for the right atrocity.

10 In the trial of Milan Lukic, the Prosecution failed to follow its

11 own developed practices and the Trial Chamber failed to apply the most

12 basic legal principles. Investigations were manifestly inadequate. With

13 all due respect, we say that the Trial Chamber in this case erred and

14 that it is high time to put these errors right. We say as difficult as a

15 decision of this kind might be for Your Honours, Milan Lukic's conviction

16 simply cannot stand. Only in that way will this Tribunal fulfil its

17 duty.

18 Now I would like to give the floor to my colleague, Mr. Ivetic.

19 MR. IVETIC: Good morning, Your Honours. At this time I would

20 like to briefly illuminate --

21 JUDGE GUNEY: [Interpretation] I would like to draw your

22 attention, Mr. Ivetic, to the fact that you are left with 15 minutes.

23 MR. IVETIC: Yes, Your Honour. My comments should only take ten.

24 I would like to briefly illuminate our submissions in regards to

25 subgrounds 3(I) and 4(H) of our appeal and the question posed if each of

Page 69

1 these events qualifies as extermination. As a preliminary matter, I

2 would note that while we additionally believe that the Trial Chamber

3 erred in convicting Milan Lukic for killings at Pionirska and Bikavac,

4 our further arguments in this regard are set forth in the remainder of

5 our third and fourth grounds of appeal.

6 When it comes to extermination, we believe that the Trial Chamber

7 misapplied the appropriate legal standard. We respectfully submit that

8 the majority watered down the threshold required for the crime of

9 extermination. The distinguishing legal element of extermination that

10 sets it apart from the crime of murder is its massiveness. Under the

11 decisional authority, this element of massiveness has been referred to as

12 mass killings, that was in the Blagojevic trial judgement; "substantial

13 killing," that was in the Semanza trial judgement; mass destruction, that

14 was in Ntakirutimana, the appeals judgement, paragraph 516; or a killing

15 on a massive or large scale, again the Blagojevic trial judgement; or as

16 the Vasiljevic trial judgement specified, a "vast scheme of collective

17 murder."

18 THE INTERPRETER: Could counsel kindly slow down, please.

19 MR. IVETIC: I will try to slow down.

20 Therefore, Your Honours, massiveness refers to the number of

21 victims, not their character.

22 We believe that in regards to Pionirska and Bikavac, the majority

23 erred in its characterisation of the incidents as extermination. For

24 Pionirska the majority relied upon the type of victims, the area they

25 came from, and the manner in which the fire was prepared. That's from

Page 70

1 paragraph 945 of the trial judgement.

2 In regard to Bikavac, the majority relied on the manner in which

3 the house was prepared, the manner the victims were herded into the

4 house, and the number and type of victims, specifically their

5 vulnerability. That's paragraph 949 of the trial judgement.

6 But, Your Honours, in each instance the Trial Chamber noted that

7 the victims numbered approximately 60 persons. In finding this

8 extermination, the majority approach runs contrary to the history of

9 extermination under the law.

10 Historically, extermination originated at Nuremberg. Since the

11 IMT statute did not contain a clause for genocide, extermination was used

12 to prosecute individuals. The original elements of extermination were

13 defined as, first, a great pattern or plan of racial persecution; and

14 second, specific conduct of the defendant in furtherance of that plan.

15 Now, while the Nuremberg Tribunal recognised that none of the accused

16 directly perpetrated the crimes, they were involved in the creation of

17 "nationwide organised systems of cruelty and injustice." This, we

18 submit, was in essence the origin of the expression of massiveness.

19 As footnote 587 of the Vasiljevic trial judgement points out, the

20 lowest figure from these World War II cases wherein extermination was

21 applied was for a total of 733 killings. Both the ICTY and ICTR have

22 ensured that the element of massiveness is maintained at a high level in

23 their rulings aggregating multiple incidents, that was Akayesu, Stakic,

24 Krstic; holding that the killings must be of such a scale to be

25 prohibitive to identify victims with specificity, Ntakirutimana appeals

Page 71

1 judgement; and holding that massiveness is tied to the chapeau elements

2 for humanity, also from Ntakirutimana.

3 The jurisprudence has found only extermination for cases where

4 the accused participated in an overarching JCE covering a wide area and

5 thousands of victims. It has never been reduced to a situation smaller

6 than a municipality except for now, in this trial judgement.

7 I urge Your Honours to look at paragraph 222 of our appeal brief

8 which sets out a table of the previous extermination cases in the ICTY

9 and the ICTR and the number of victims in each. None of those are close

10 to the instant case where 60 persons was deemed to qualify for

11 massiveness.

12 I note that the Prosecution in its brief has referred to the

13 Krajisnik convictions for extermination at Pionirska and Bikavac, but I

14 must point out that the Krajisnik Appeals Chamber reversed the

15 extermination conviction, although it did not address whether the

16 threshold had been met in those instances. Just as in the Vasiljevic

17 trial judgement, where Vasiljevic was acquitted of extermination on other

18 grounds, the Chamber did not assess whether these two incidents

19 constituted extermination.

20 Your Honours, we are asking you today to answer this unsettled

21 question of law if the two 60-person groups at issue constitute killings

22 on a scale sufficient to meet the high massiveness threshold of

23 extermination, especially in this case where there is not a JCE.

24 We believe that the Appeals Chamber should be guided by the

25 Martic trial judgement, where the accused was found not guilty of

Page 72

1 extermination --

2 JUDGE GUNEY: [Interpretation] Mr. Ivetic, even if it is quite

3 late, there has been some delay in our hearing today, which of course was

4 involuntary and beyond our control. So we have basically revised the

5 schedule for the day and we are already applying this new schedule, which

6 means that we have arranged the various speakers according to this new

7 schedule for the day. Therefore, could you please take this on board.

8 Thank you.

9 MR. IVETIC: Thank you, Your Honour. I am aware of the schedule

10 and I have arranged my comments accordingly. I am near the end. I have

11 two more points to raise.

12 We believe the Appeals Chamber should be guided by the Martic --

13 JUDGE GUNEY: [Microphone not activated]

14 THE INTERPRETER: Microphone, please.

15 [Appeals Chamber and Legal Officer confer]

16 JUDGE GUNEY: [Interpretation] A new agenda will be circulated to

17 the parties during the break, just for your information. So all parties

18 will receive this new schedule for the day.

19 MR. IVETIC: Okay.

20 Your Honours, we believe that the Appeals Chamber should be

21 guided by the Martic trial judgement, where the accused was found not

22 guilty of extermination on the basis of the deaths of 165 victims. We

23 submit, Your Honour, that this is the only ICTY case that has dealt with

24 a number of victims remotely similar, and yet still higher than the

25 instant case and in that case they correctly found that extermination was

Page 73

1 not appropriate. And that as bad as the crimes were, they are only

2 qualifiedly murder.

3 Also, Your Honour, Your Honours, we would ask you to look at the

4 2008 ICTR trial judgement of Zigiranyirazo, where the Chamber found

5 massiveness was satisfied by an incident where "hundreds and possibly

6 over a thousand were killed, but the same Chamber deemed that "at least

7 10 to 20" persons killed at a roadblock in another incident was not

8 sufficient to achieve massiveness or a conviction of extermination. And

9 that is from paragraphs 434 to 439 of that judgement.

10 Accordingly, Your Honours, we would respectfully ask for the

11 convictions of extermination against Milan Lukic to be reversed and for

12 this error by the majority to be corrected by the appropriate appellate

13 relief.

14 And I thank you for your time. If there are no questions, I

15 believe that finishes the submission of the Milan Lukic Defence on

16 appeal. Thank you.

17 JUDGE GUNEY: [Interpretation] Thank you, Mr. Ivetic. We are now

18 going to have a break of 30 minutes, and the hearing shall resume at

19 11.30, half past 11.00. Court stands adjourned until 11.30.

20 --- Recess taken at 10.58 a.m.

21 --- On resuming at 11.35 a.m.

22 JUDGE GUNEY: [Interpretation] The court is back in session. I

23 would like to invite the representatives of the OTP to present their

24 submissions in response, but before doing so, before doing so, as I was

25 saying, Judge Liu has a question.

Page 74

1 JUDGE LIU: I'm sorry, but I have a question to ask the appellant

2 counsel. I'm very much interested in the -- in your submission

3 concerning the required number for the crime of extermination. I believe

4 that there is some case law concerning this issue. In the Brdjanin case,

5 the Trial Chamber said that:

6 "While the extermination generally involves a large number of the

7 victims, it may be constituted even where the number of the victims is

8 limited."

9 And on the Stakic case, the Trial Chamber said that:

10 "The killing must have occurred on a vast scale in a concentrated

11 place over a short period of time."

12 And also in the Blagojevic case, the Trial Chamber said:

13 "While some Trial Chambers have discussed whether the elements of

14 the mass destruction includes a minimum number of victims, the

15 Trial Chamber found that there's no such requirement. In the

16 Trial Chamber's opinion, any such attempt to set a minimum number of the

17 victims in the abstract will ultimately prove unhelpful. The element of

18 massive scale must be assessed on a case-by-case basis in light of the

19 proven criminal conduct and all relevant factors."

20 I just want to know the counsel's comments on that jurisprudence

21 in the ICTY Tribunal. Thank you.

22 MR. IVETIC: Thank you, Your Honour. That's a very good

23 question. We are not asking the Appeals Chamber to set a minimum

24 threshold for the crime of extermination. The case law that Your Honour

25 pointed out is clear that there is no minimum threshold for this crime,

Page 75

1 and I would also add the Ntakirutimana appeal judgement at paragraph 516,

2 I believe, is one that also dealt with that, in addition to the

3 authorities you discussed.

4 What we are asking you to do is perform the case-by-case analysis

5 that was called for in the Stakic appeals judgement at paragraph 260, to

6 look at this particular case, to determine if the entire totality of the

7 facts for each incident involving 60 persons is appropriate to meet the

8 threshold of massiveness for extermination, such that a conviction would

9 be supportable.

10 The case we mentioned, the Martic trial judgement, in that case,

11 Your Honour, the Court looked at the totality of the evidence to find

12 that the incidents, 165 killings, whether considered alone or aggregated

13 on a cumulative basis was not enough to amount to extermination. In

14 particular, they focused on the crimes being committed in a limited time

15 and limited area.

16 In the appeals judgement in Brdjanin, on the other hand,

17 extermination was found applicable, including for 68 persons in Brisevo,

18 but under the totality of 1.669 persons killed in many incidents covering

19 the entire ARK municipalities' territory. Also considered in light of

20 the surrounding circumstances of the killings happening at that time.

21 That was paragraph 472 of the appeals judgement.

22 As the Appeals Chamber in Brdjanin rightly noted, the Brdjanin

23 trial judgement considered all killings in the ARK territory as a whole

24 rather than as individual incidents. They aggregated them together. In

25 this case we submit that you must take into account that, unlike the

Page 76

1 others, there is no joint criminal enterprise, no overarching plan across

2 a wide territory. Likewise, we submit, that this case is closer to the

3 rationale in Martic than in -- to Brdjanin and we believe that

4 extermination is not appropriate to describe these events, again under

5 the totality of the facts on a case-by-case analysis for this case.

6 Based upon the fact that the killings are said to have occurred over a

7 limited time, a limited area, by limited persons, and with no JCE.

8 I hope that will answer your question, Judge Liu. Thank you.

9 JUDGE LIU: Thank you very much. I believe that I will hear the

10 view -- the point of view from the Prosecution on this subject in their

11 submission later on.

12 MR. KREMER: Yes, you will, Your Honour.

13 Your Honours, in 1992 and 1993, Milan Lukic murdered, terrorised,

14 and viciously beat numerous Bosnian Muslims in and around the small town

15 of Visegrad. Having listened to the witnesses' harrowing accounts of

16 these events and having weighed the evidence, the Trial Chamber properly

17 convicted Milan Lukic for the crimes charged in the indictment.

18 On appeal, Milan Lukic essentially submits that this was a case

19 of mistaken identity. However, the Chamber heard compelling evidence

20 placing him at each of the crime sites. The witnesses and victims that

21 recognised him included his former schoolmates, his acquaintances, and

22 other members of the small community that he came from. He fails to show

23 that the Trial Chamber erred and that his appeal should be dismissed.

24 In responding to Milan Lukic's submissions today, I will address,

25 first, the law governing identification evidence and demonstrate why

Page 77

1 Milan Lukic has failed to show any error in the Trial Chamber's approach

2 to identification. Second, I will address the key pieces of evidence

3 supporting the Trial Chamber's --

4 THE INTERPRETER: Would you kindly slow down for the

5 interpreters. Thank you.

6 MR. KREMER: -- conviction of Milan Lukic for the

7 Pionirska Street fire and the Bikavac fire, focussing again on

8 identification. And third, I will deal with the question on

9 extermination and address the question that Judge Liu has just asked to

10 my learned friend Mr. Ivetic.

11 THE INTERPRETER: You're kindly asked to slow down.

12 MR. KREMER:

13 Following my submissions, Ms. Monchy will address the Drina River

14 and Varda factory killings and answer any questions the Chamber may have

15 on the Koric murder. Finally, Mr. Schuster will deal with the conviction

16 for the crimes committed in the Uzamnica camp.

17 I will point out now that the Prosecution will not address the

18 Milan Lukic submissions on proof of death that were made in his briefs,

19 but rely on our Prosecution response brief in its responses to

20 Milan Lukic's Rule 115 applications dealing with the subject. The same

21 applies to his legal and factual submissions on alibi which have not been

22 addressed today. And we are available should you have any questions on

23 these subjects to answer questions.

24 At the outset, it's important to recall that this was a very --

25 very much a case about people, about individual experiences. The people

Page 78

1 of Visegrad came forward to speak about the violence and killings

2 inflicted by one of their neighbours. Many of them had been subject to

3 brutal attacks or witnesses to brutal attacks. They were often

4 traumatised by what they experienced or saw.

5 The Trial Chamber was in a unique position to evaluate whether

6 each of the witnesses was reliable and credible about the events that

7 they saw, heard, and suffered through. As the ICTR Appeals Chamber

8 stated in Nahimana at paragraph 949:

9 "Trial Judges are in the best position to assess the credibility

10 of a witness and the reliability of the evidence adduced."

11 This Appeals Chamber should afford the Trial Chamber in this case

12 the proper deference in these matters. The minor anomalies or

13 inconsistencies that Milan Lukic raises on appeal were addressed by the

14 Trial Chamber where relevant and are set out in its judgement. It was

15 not required to address mere hypothetical possibilities without any basis

16 in the evidence. It is only fair or rational possibilities arising from

17 the evidence as a whole that need to be addressed, as Your Honours have

18 stated in the Mrksic appeals judgement at paragraph 220. Milan Lukic

19 raises none that warrant appellate intervention and you should not allow

20 Milan Lukic to turn this case or this appeal into a trial de novo.

21 Turning now to identification evidence. As I mentioned, this

22 case essentially turned on the issue of identification and the

23 Prosecution submits that the Trial Chamber adopted a careful approach to

24 identification evidence. As Mr. Visnjic properly pointed out, very early

25 in the proceedings Judge Robinson commented:

Page 79

1 "The essential issue in this case is identity."

2 So the Trial Chamber was very well aware of the importance of

3 identification in this trial.

4 The Trial Chamber did not ignore the legal principles governing

5 identification evidence, as Milan Lukic suggests, and although the

6 judgement does not set out at length the guiding principles on

7 identification evidence, as Milan Lukic submits is a requirement, the

8 Trial Chamber referred to judgements containing the applicable

9 jurisprudence. At paragraph 31 of its judgement, the Chamber referred to

10 paragraph 9 [sic] of the Haradinaj trial judgement which sets out the

11 guidance from the Kupreskic appeal judgement, which in Kupreskic stated:

12 "The Appeals Chamber highlighted several factors to be considered

13 when evaluating identification evidence, including identification by

14 witnesses who only had a fleeting glance or an obstructed view of an

15 accused; identification occurring in the dark; identification as a result

16 of a traumatic event experienced by the witness; inconsistent or

17 inaccurate testimony about the accused's physical characteristics at the

18 time of the event; and a witness's delayed assertion of memory regarding

19 an accused coupled with the clear possibility from the circumstances that

20 the witness had been influenced by suggestions from others. When

21 confronted with recognition evidence, rather than identification evidence

22 stricto sensu, the Trial Chamber also took into account the possibility

23 of bias, and the interval between the time the witness recognised the

24 person and the time he had last seen him."

25 That's the quote from paragraph -- from Kupreskic which is

Page 80

1 referred to in the Haradinaj judgement.

2 And all of those factors are factors that were applicable to some

3 or all of the evidence in this case. And the Trial Chamber dealt with it

4 where relevant. So our submission that the critical question is not

5 whether the judgement recites verbatim all of the relevant jurisprudence;

6 instead what is necessary to ask is whether the Trial Chamber actually

7 applied those principles and exercised the appropriate caution in

8 evaluating the evidence. When you look through the judgement you will

9 see that the Trial Chamber did exactly that. For each incident, it

10 carefully recorded the evidence on identification and then set out its

11 analysis of that evidence.

12 In its assessment of the identification evidence, the

13 Trial Chamber addressed the pertinent factors. It took into account

14 factors such as the conditions in which the witnesses saw Milan Lukic,

15 including the time they spent in his presence; the traumatic or crowded

16 circumstances; and the lighting in the relevant location. For

17 example - and Mr. Visnjic deals with this question in relation to

18 lighting - the lighting at Pionirska Street was litigated at length at

19 trial. The Chamber took all of this evidence into account and explained

20 at paragraph 597:

21 "While some witnesses testified that the late hour and rain made

22 observations difficult, witnesses consistently testified that light from

23 sources including neighbouring houses and flash-lights carried by the men

24 and their close proximity to the men, allowed them to identify the men

25 who carried out the transfer."

Page 81

1 The Chamber also addressed factors such as witnesses'

2 descriptions of Milan Lukic and the time elapsed since they had last seen

3 him.

4 Milan Lukic is --

5 JUDGE GUNEY: [Interpretation] Could you please slow down because

6 it is difficult for us to follow and to follow your line of reasoning.

7 So we need you to slow down, please. Thank you.

8 MR. KREMER: My apologies to the interpreters.

9 Milan Lukic's suggestion that the Chamber was reckless in its

10 approach to identification evidence is undermined by the detailed

11 treatment of this issue in the judgement. His attempts to relitigate

12 these details on appeal should be dismissed. Milan Lukic suggests that a

13 full procedure of identification parade or photo spread are mandatory and

14 that no conviction is possible without having followed these procedures.

15 In answer to that submission I refer Your Honours to the Kalimanzira

16 appeal judgement at page 96:

17 "Neither the rules nor the jurisprudence of the Tribunal oblige a

18 Trial Chamber to require a particular type of identification evidence."

19 The Trial Chamber also carefully differentiated between witnesses

20 who knew or were familiar with Milan Lukic and those who were not. In

21 the process, the Trial Chamber took note of the well-accepted common

22 sense proposition that recognition evidence, that is, evidence from

23 witnesses who had prior knowledge of or familiarity with the accused, is

24 generally more reliable than evidence from the witnesses who see the

25 accused for the first time at crime scenes. The Trial Chamber carefully

Page 82

1 assessed the recognition witness accounts, including the basis for their

2 prior knowledge of or familiarity with Milan Lukic. And this approach

3 that the Trial Chamber took is supported by the Tribunal jurisprudence

4 that is cited in our Prosecution response brief at paragraph 3.

5 A more recent example than those cases cited of a Trial Chamber

6 using knowledge of an accused as a relevant factor to identification is

7 in the Popovic trial judgement at paragraph 55. In that judgement the

8 Trial Chamber noted:

9 "In assessing identification evidence, the Trial Chamber has

10 taken into account a number of relevant factors, including: The

11 circumstances in which each witness claimed to have observed the accused;

12 the length of the observation; the familiarity of the witness with the

13 accused prior to the identification; and the description given by the

14 witness of his or her identification of the accused."

15 I also refer you to a similar approach taken earlier by the

16 Kordic and Cerkez Trial Chamber at paragraph 725 of its judgement which

17 was approved by the Appeals Chamber judgement at paragraph 704.

18 So in our submission, the Chamber's detailed treatment of this

19 evidence is consistent with its cautious approach to identification

20 evidence in general.

21 Let me turn to the issue of in-court recognitions. As was

22 pointed out earlier, during trial several witnesses made in-court

23 recognitions of Milan Lukic as the person whom they saw at various crime

24 scenes. As the Chamber pointed out, the in-court recognitions were not

25 relied on with one exception, and it's our position that as a result the

Page 83

1 in-court recognitions were largely irrelevant, particularly given the

2 fact that the assessment of their use was made by a professional

3 Trial Chamber that would not have been influenced in any way by the

4 in-court recognition if it did not rely on it.

5 In any event, Milan Lukic fails to show that the in-court

6 identifications by witnesses that were familiar with the accused at the

7 time of the crime are impermissible. It's our position that although the

8 Limaj appeals judgement at paragraph 27 sets out a general rule that no

9 weight should be placed on in-court identifications, there is in fact an

10 exception for recognition witnesses. I refer you to the Simic

11 Trial Chamber at paragraph 26:

12 "The Trial Chamber also scrutinised the in-court identification

13 of the accused by witnesses, noting that evidence on identification is

14 generally viewed with caution, but also acknowledging, given the

15 close-knit community from which both the accused and witnesses come, that

16 identification evidence may carry more weight when considering its

17 reliability where witnesses have prior knowledge of the accused."

18 Moreover, the domestic criminal courts that Milan Lukic cites in

19 support of his proposition that in-court recognitions are impermissible

20 are not on point as they do not involve in-court identifications by

21 recognition witnesses. Like international criminal tribunals, domestic

22 cases involving in-court identifications by recognition witnesses find no

23 error in the procedure. For the cases on this point, I refer

24 Your Honours to footnote 21 of the Prosecution response brief.

25 Your Honours, in conclusion on the point of identification, the

Page 84

1 Chamber took a careful and thorough approach to the issue. The judgement

2 shows that it addressed this evidence in detail in relation to each of

3 the crime sites. Milan Lukic ignores the extensive analysis in the

4 judgement and seeks to relitigate the issue on appeal. However, I would

5 submit that he fails to show that the Chamber erred in its approach to

6 identification and his challenges should be dismissed.

7 Let me now move to the two killings at Pionirska Street and

8 Bikavac that I am dealing with.

9 I will first provide Your Honours --

10 THE INTERPRETER: Counsel is kindly asked to slow down for the

11 purposes of the interpretation. It is really too fast.

12 MR. KREMER: -- with a brief review of the core facts of

13 Pionirska Street and Bikavac to give my submissions context.

14 First, on June 14th, 1992, a small group of armed men dressed in

15 camouflage uniforms, including Milan and Sredoje Lukic, first robbed then

16 terrorised over 60 Muslims from Koritnik, mainly from the Kurspahic clan,

17 at the Memic house on Pionirska Street in Visegrad. Later the same day,

18 Milan Lukic and his armed group herded them into the nearby Omeragic

19 house. Milan Lukic set fire to the house. The Muslims who escaped or

20 attempted were shot at. Several Muslims died attempting to escape. At

21 least 58 Muslims were either burned alive or shot to death.

22 Two weeks later, Milan Lukic and a small group of armed men

23 dressed in camouflage uniforms again herded a large group of Muslims into

24 a house across town in Bikavac. Again Milan Lukic set the house on fire,

25 burning the victims to death, and shot at those who attempted to escape.

Page 85

1 Approximately 60 Muslims perished.

2 After hearing the testimony from Muslim survivors of

3 Pionirska Street and Bikavac, including those who knew Milan Lukic

4 personally and observed him as he lit the fires, the Trial Chamber

5 reasonably found that he was criminally responsible for both of these

6 brutal massacres. The Trial Chamber appropriately summed up the killings

7 when it stated at paragraph 740:

8 "In an all too long, sad and wretched history of man's inhumanity

9 to man, the Pionirska Street and Bikavac fires must rank high ... these

10 horrific events remain imprinted on the memory for the viciousness of the

11 incendiary attack, for the obvious premeditation and calculation that

12 defined it, for the sheer callousness, monstrosity, and brutality of

13 herding, trapping, and locking the victims into the two houses, thereby

14 rendering them helpless in the ensuing inferno and for the degree of pain

15 and suffering inflicted on the victims as they were burnt alive."

16 Starting with Pionirska Street. Milan Lukic challenges the

17 factual basis of his convictions for Pionirska Street but fails to show

18 that the Trial Chamber erred. Survivors of the Pionirska Street killing

19 consistently stated that Milan Lukic carried out the crimes. These

20 first-hand witnesses who came from the same small community as

21 Milan Lukic include some who personally knew him and recognised him as he

22 perpetrated the crimes.

23 Seven survivors identified Milan Lukic as one of the perpetrators

24 of the crimes committed at Pionirska Street. All of these witnesses were

25 found to be credible and reliable by the Trial Chamber. The survivors of

Page 86

1 Milan Lukic's crimes described the events of June 14th in detail.

2 Between 4.00 and 5.00 p.m. Milan Lukic arrived at the Memic house on

3 Pionirska Street. He was armed and wearing a camouflage uniform. He was

4 with other armed men in camouflage uniform including people identified as

5 Sredoje Lukic, Mitar Vasiljevic, and Milan Susnjar, or Lalco, together

6 I'll call them the Lukic group.

7 Milan Lukic and Sredoje Lukic entered the Memic house and

8 introduced themselves to the group of over 60 unarmed Muslims inside.

9 The group was mainly composed of women and girls, the elderly and

10 children, including babies. A large percentage of the people inside knew

11 Milan Lukic and Sredoje Lukic, Mitar Vasiljevic and Susnjar, and were

12 able to identify them on sight. Two of the witnesses that recognised

13 Milan Lukic when he entered the Memic house are sisters VG-101 and VG-78.

14 Both sisters knew Milan Lukic and went to school with him for a number of

15 years. They described how he played a leading role in the series of

16 crimes committed by the armed Serb perpetrators throughout the day and

17 night at Pionirska Street.

18 Milan Lukic does not dispute that VG-101 went to school with him,

19 saw him on a daily basis, and after finishing school continued to see him

20 at dances and parties. He does not dispute that VG-78 went to school

21 with him for several years and saw him at school. His complaint is that

22 the circumstances of their identification do not -- were not sufficient

23 for them to be able to identify him beyond a reasonable doubt.

24 In Mitar Vasiljevic the Trial Chamber concluded that they had a

25 reasonable doubt as to whether Mitar Vasiljevic was among the armed group

Page 87

1 at Pionirska Street. The Defence suggests that the reasonable doubt

2 of -- in Mitar Vasiljevic should be transposed to this case and that

3 there should be an automatic acquittal because the evidence of VG-101 and

4 VG-78 among the other evidence was not sufficient to satisfy it that the

5 evidence proved Mitar Vasiljevic's presence beyond a reasonable doubt.

6 But he ignores the fact that Trial Chambers in other cases can take

7 different positions based on the evidence that they hear.

8 The evidence of VG-101 and VG-78 was before this Trial Chamber.

9 The testimony, live testimony, that VG-101 and VG-78 gave was tested and

10 they were examined fully on inconsistencies between their testimony

11 before the Lukic Trial Chamber and the Vasiljevic Trial Chamber. This

12 Trial Chamber performed a full review and analysis and came to a reasoned

13 decision on what part of their testimony to accept. And I would submit

14 that the Trial Chamber was entitled based on the evidence that it heard,

15 based on their analysis and consideration of the demeanour and

16 presentation of the evidence by the witnesses, both in

17 examination-in-chief and cross-examination, to find that VG-101 and VG-78

18 recognised him at Pionirska Street.

19 These witnesses, VG-78, 101, and others, provided consistent and

20 mutually corroborating accounts of Milan Lukic's actions. After

21 Milan Lukic and Sredoje Lukic introduced themselves, Milan Lukic ordered

22 the Muslims to surrender their valuables and threatened to put a bullet

23 in the head of anyone who withheld anything. Milan Lukic robbed the

24 Muslim civilians at gunpoint. The women and children were segregated

25 from the group and strip-searched. Milan Lukic later removed at least

Page 88

1 three women from the house. They were subsequently raped.

2 Subsequently Milan Lukic and his armed group left the Memic

3 house, but before leaving, Milan Lukic told the Muslim civilians that no

4 one was allowed to leave until he returned. Milan Lukic, Sredoje Lukic,

5 and other members of the group returned later that evening. All were

6 still armed and in camouflage. They transferred the Koritnik group to

7 the Omeragic house, a distance of about 20 to 30 metres. The Omeragic

8 house had been prepared with fire accelerant. The Lukic group was

9 organised as observed by VG-84 who stated:

10 "There was a light in front of the house, they had flash-lights.

11 Everything had been prepared in advance."

12 And his evidence is consistent with evidence provided by several

13 other witnesses, including VG-38.

14 The Muslim civilians were told that they were being transferred

15 for their safety and that they did not need their shoes or luggage. As

16 Milan Lukic was transferring the victims from the Omeragic house, VG-13

17 passed him within 30 centimetres. Once the victims were locked in the

18 Omeragic house, they realised that they were not safe there. VG-13 and

19 other witnesses described how the air in the room was suffocating due to

20 the presence of a pungent, sticky substance on the carpets which caused

21 persons to choke.

22 After the Muslim civilians had been trapped in the Omeragic house

23 for a short time, Milan Lukic placed an explosive device inside which

24 detonated and set the room on fire, enveloping the people inside it.

25 Milan Lukic and other of his armed group positioned outside the house

Page 89

1 shot at members of the Koritnik group who tried to escape. In total they

2 killed at least 58 Muslim civilians at the Omeragic house.

3 VG-13 knew Milan Lukic prior to the incident, saw him place the

4 explosive device inside the Omeragic house, and saw him when he shot her

5 as she escaped through the window. The Milan Lukic Defence has argued

6 that VG-13 was not a recognition witness. However, the paragraph that it

7 refers to in the OTP closing brief concerns in-court identification. The

8 Trial Chamber did not rely on VG-13's in-court identification. Moreover,

9 the Trial Chamber explained the basis for her prior knowledge of

10 Milan Lukic in the judgement at paragraphs 408 and 599.

11 I just read paragraph 408 of the judgement.

12 "During examination-in-chief, VG-13 stated that the first time

13 that she saw Milan Lukic was on June 14, 1992. However, under

14 cross-examination she testified that she had seen Milan Lukic prior to

15 the incident in the area in which she lived, and that the last time she

16 saw him '[h]e was around 20, maybe a little bit over 20.' She sometimes

17 saw Milan Lukic about twice a year 'in passing' when he would go to the

18 Panos hotel. However, VG-13 stated, 'I have no ... personal knowledge

19 about Milan Lukic. He was a neighbour who was growing up in our

20 proximity, and I cannot say anything else.'"

21 There's nothing unreasonable about the Trial Chamber's finding.

22 The standard on appeal is whether there was an error in the judgement and

23 I would submit that based on the Trial Chamber's treatment in

24 paragraph 408 there was no error.

25 Milan Lukic suggests that there was no light inside the house at

Page 90

1 all and so VG-13 could not have recognised him as the person who placed

2 the explosive device inside the door. That's found in his argument today

3 and his reply brief at paragraph 72.

4 However, as I mentioned previously, the Chamber carefully

5 addressed the issue of lighting. It noted that light came from various

6 sources, including neighbouring houses and perpetrators' flash-lights,

7 enabling the victims in the Omeragic house to see the perpetrators.

8 Additionally, there was light into the room from the street lights

9 outside, as was stated in judgement paragraph 366.

10 VG-13 knew Milan Lukic and provided compelling evidence of seeing

11 him set the Omeragic house on fire. She was cross-examined at length,

12 suggesting that she did not know him and that she could not have seen him

13 and that the fire never happened. The Trial Chamber sat through this

14 evidence, through this cross-examination, and addressed Milan Lukic's

15 challenges to her in the judgement. It found that VG-13 knew him prior

16 to the Pionirska Street crimes, that she was a credible and reliable

17 witness. On appeal he simply seeks to substitute the Chamber's

18 interpretation of the evidence with his own.

19 Along with VG-13 and the other witnesses who knew Milan Lukic

20 prior to the crimes committed at Pionirska Street, several additional

21 witnesses identified him as one of the perpetrators. VG-38, VG-18,

22 VG-84, and Huso Kurspahic, who conveyed the account of his deceased

23 father Hasib Kurspahic, all described how Milan Lukic was a member of the

24 small group of perpetrators. The Trial Chamber heard their accounts,

25 assessed their evidence, their demeanour, and concluded their evidence

Page 91

1 was credible and reliable.

2 With respect to Milan Lukic's arguments about Mitar Vasiljevic's

3 presence on Pionirska Street on 14 June 1992, these have already been

4 fully addressed in the Prosecution response brief, other than to

5 highlight one point. At paragraphs 81 and 82 of his reply, Sredoje Lukic

6 states that the Prosecution misunderstands the jurisprudence governing

7 adjudicated facts. It is Milan Lukic who misunderstands. While the

8 Chamber initially admitted adjudicated facts from the Vasiljevic

9 proceedings which would have supported the appellant's arguments, it

10 subsequently heard live testimony to the contrary and rejected those

11 adjudicated facts. And this is entirely consistent with the governing

12 jurisprudence as set out in the Prosecution's response at paragraph 134.

13 And again, just to point out that the Defence for Milan Lukic

14 assumes that reasonable doubt by the Vasiljevic Trial Chamber

15 conclusively decides that Mitar Vasiljevic was not there. And our

16 position is clearly this is wrong logic. It is -- in any event this was

17 the reason that Judge Robinson still found Milan Lukic guilty for the

18 Pionirska crimes even though he dissented as to Vasiljevic's presence. I

19 refer you to paragraphs 1.110 to 1.111. The issue of Vasiljevic's

20 presence does not affect the Chamber's unanimous conclusion that several

21 witnesses reliably place Milan Lukic at Pionirska Street on 14 June 1992.

22 Let me turn to Bikavac. Our position is that Milan Lukic was

23 properly convicted for the crimes at the Meho Aljic house in Bikavac and

24 that he fails to demonstrate any error in the Chamber's findings.

25 Approximately two weeks after the attack on Pionirska Street, Milan Lukic

Page 92

1 did it again. This time at least 60 Muslim civilians were killed. Just

2 one person survived. On or about the evening of 27 June, Milan Lukic

3 drove to the neighbourhood of Bikavac with music blaring from two cars,

4 one a Passat, he and his armed companions went into the nearby houses and

5 herded the occupants onto the street. These people included both

6 residents and refugees.

7 The people were told to file inside the house of Meho Aljic.

8 Such was their fear, they complied without question. Once inside, the

9 people were crowded into a single room whose exits were blocked and

10 barricaded. Once Milan Lukic had herded everyone inside he blocked the

11 last exit to the house. Milan Lukic and his companions threw sticks at

12 the house, shot at it, and threw grenades inside. Shortly after,

13 Milan Lukic set the house on fire. Just one person survived. The sole

14 survivor was Zehra Turjacanin.

15 Like other witnesses and victims in this case, she had known

16 Milan Lukic. She had known him from childhood when she was at school.

17 Milan Lukic was in the same class as her brother. She saw him as an

18 adult too, recalling at least two occasions earlier in June 1992 when she

19 saw him in Visegrad at the Alhos factory and at her neighbour's house,

20 where she was drinking coffee. The Trial Chamber had no doubt about her

21 prior knowledge of Milan Lukic.

22 The Trial Chamber heard over three trial days Zehra Turjacanin's

23 testimony. The Trial Judges sat with her as she described her attack and

24 her inability to save her family from the flames. They saw her distress,

25 they saw her disability caused by her burns. On the basis of a very

Page 93

1 careful and very personal scrutiny, the Trial Chamber was unequivocal in

2 its assessment of Zehra Turjacanin's evidence, which it considered in its

3 entirety. It found it to be coherent and reliable. The Trial Chamber

4 was convinced that she was a witness of truth. The Trial Judges deserve

5 great deference in their finding.

6 So when Milan Lukic came to Zehra Turjacanin's house on the

7 evening on or about 27 June, she recognised him instantly. She knew

8 exactly who it was who told her and her family to assemble in the street

9 and ordered them into Meho Aljic's house. She knew exactly who it was

10 who pulled the gold necklace off her neck as she filed inside. And as

11 she escaped the burning house, forced to abandon some of her closest

12 family members, she knew exactly who she was escaping from.

13 Moreover, Milan Lukic knew that the intended -- his intended

14 victim had recognised him. As -- and we know this because he bothered to

15 put a price on Zehra Turjacanin's head once he learned that she had

16 escaped. Zehra Turjacanin's compelling evidence of Milan Lukic's attack

17 was directly corroborated by Witness 58 and Witness 115, both of whom

18 were previously acquainted with Milan Lukic. VG-58 was a neighbour and

19 VG-115 had regular passing encounters. These witnesses were hiding

20 nearby the Aljic house and observed the attack. They confirmed that

21 Milan Lukic herded the people inside, that he shot at the house, and that

22 he threw grenades and petrol. VG-58 heard him exhorting his companions

23 to get as many people in as possible. VG-58 saw Zehra Turjacanin escape.

24 Zehra Turjacanin's account was also confirmed by the story she

25 told immediately after her escape, when her first action was to warn her

Page 94

1 neighbours. Having gone first to the house of Ismeta Kasapovic, who was

2 not a witness, she went to the house of VG-35 and CW-2 and told them what

3 had happened. She urged them to flee and to warn others. Earlier that

4 day Milan Lukic had raped VG-35, having introduced himself the night

5 before. Zehra Turjacanin then went to the house where VG-119 and VG-94

6 were staying. She told them the same story.

7 Finally, Zehra Turjacanin's story was further confirmed by the

8 evidence of Milan Lukic's condition after the attack. Before he went to

9 Bikavac at about 8.00 p.m., Milan Lukic had visited VG-94 and VG-119,

10 driving in the red Passat. They told the two women that they would be

11 killed if they left their home. The Trial Chamber determined that they

12 would be able -- that they were able to recognise Milan Lukic from their

13 encounters.

14 About two hours later, Milan Lukic returned, and I refer you to

15 paragraph 721 for that point I just made. Again, he returned in a red

16 Passat. He was dripping with sweat, dirty, and looked and smelled like

17 he had been near a fire. The Trial Chamber emphasised that the testimony

18 of VG-94 and VG-119 strongly reinforces that of Zehra Turjacanin and it

19 gave great weight to their testimony.

20 Let me now move to the question, question 1, asked by the

21 Appeals Chamber.

22 And the answer that I will give applies equally to the

23 Pionirska Street and Bikavac massacres.

24 The Trial Chamber properly analysed the killings at

25 Pionirska Street and Bikavac separately and found that each independently

Page 95

1 were sufficiently large to constitute extermination in the circumstances

2 of this case. First, the number of victims at each killing site is

3 consistent with previous incidents that have been judicially classified

4 as extermination. The numbers here are 58 at Pionirska Street and 60 at

5 Bikavac. Although there is no specific numerical threshold for

6 extermination, the jurisprudence of the international tribunals indicates

7 that the killing of over 50 victims is sufficiently large scale to

8 qualify as extermination.

9 In Brdjanin, the Appeals Chamber held that the killing of

10 68 persons at Brisevo was an independent act of extermination. The

11 Milan Lukic Defence argues that in Brdjanin the Appeals Chamber only

12 found that the total number of 1.669 deaths qualified as extermination;

13 that is incorrect. At paragraph 472 of the Brdjanin appeal judgement,

14 the Appeals Chamber clearly found that each of the separate killing

15 sites, including Brisevo, was sufficiently large to qualify as

16 extermination.

17 He also argues that the Vasiljevic Trial Chamber required that

18 there be a vast scheme of collective murder. This is incorrect. The

19 Stakic appeal judgement at paragraph 258 stated that the jurisprudence of

20 the Tribunal does not support requirements of either a vast scheme of

21 collective murder or knowledge of such a scheme. Additionally he

22 misreads the Martic trial judgement at paragraphs 404 and 405. The

23 Trial Chamber held that various killings could not be accumulated. The

24 Trial Chamber did not comment that 165 victims was an insufficiently

25 large number.

Page 96

1 There are trial judgements of other international tribunals which

2 have found that the killing of over 50 people is sufficiently large

3 scale. One connect -- appeals judgement that I refer you to is the Sesay

4 appeal judgement which confirms findings of extermination for 63 victims,

5 30 and 40 victims, and 64 victims, respectively, confirming the

6 Trial Chamber's finding in that case.

7 Mr. Gillett will deal with that more specifically tomorrow in the

8 Prosecution appeal.

9 Milan Lukic seeks to raise the threshold for extermination to

10 require killings of thousands of victims over extensive periods of time

11 at various locations. But he omits to mention that the killing of an

12 extremely large number of victims far exceeding the threshold required

13 for extermination can be an aggravating factor in sentencing. So our

14 submission is on a numerical basis, the massacres at Pionirska Street and

15 Bikavac each qualify as extermination.

16 Secondly, the circumstances. In addition to the number of

17 victims, the Chamber noted the contextual factors surrounding the

18 killings and to further confirm that they each qualified as

19 extermination. As the Chamber correctly noted, the Pionirska Street was

20 a single mass killing, not a series of unrelated individual murders. The

21 victims were targeted and were mainly residents from a small village,

22 Koritnik, and were mostly from the same extended family, the Kurspahics.

23 The method used shows the intent to kill all the victims.

24 Similarly in Bikavac, the method was similar. Even without these

25 contextual factors, the Chamber's findings remain valid on the numbers of

Page 97

1 victims killed in each incident.

2 The murder was large scale and Milan Lukic has not shown that the

3 Chamber erred in respect of its findings that he committed extermination

4 at both locations.

5 Our position and submission is that on the basis of the trial

6 evidence, including the testimony from survivors who personally knew

7 Milan Lukic and observed him as he lit the fires, the Trial Chamber

8 reasonably found him responsible for both of the brutal and callous

9 massacres. Milan Lukic has failed to demonstrate any reversible errors

10 in the trial judgement and his appeals on the third and fourth grounds of

11 appeal should be dismissed.

12 Subject to any questions you may have, I will pass the podium to

13 Ms. Monchy.

14 JUDGE GUNEY: [Interpretation] Mr. Kremer, you have ten minutes

15 left. You have ten minutes left --

16 MR. KREMER: Thank you.

17 JUDGE GUNEY: [Interpretation] -- before concluding.

18 MR. KREMER: We've changed the order a little bit. Mr. Schuster

19 will go first and Ms. Monchy will follow him.

20 MR. SCHUSTER: Good afternoon, Your Honours. Between June 1992

21 and the beginning of 1993, Milan Lukic came to the Uzamnica detention

22 camp many, many times. He savagely assaulted, again and again, many of

23 the Muslim detainees who were held there under deplorable living

24 conditions. Milan Lukic was not a guard at the camp. He would simply

25 stop by to mistreat the Muslims as he pleased. He kicked them, he beat

Page 98

1 them with his fists, with stakes, with a pole, and with wooden bats. He

2 shocked them with an electric baton. Once, when the bat he was using

3 broke because he was beating a man so hard, he would simply get a new bat

4 and continue the beating.

5 Milan Lukic's basic claim is that he was never at the camp. This

6 should be rejected by Your Honours. The Trial Chamber carefully and in

7 much detail assessed the evidence of the four witnesses, who all saw

8 Lukic at the camp on many occasions and who all corroborate each other.

9 All of these witnesses were adamant about one thing: The man who kicked

10 and beat them so savagely many, many times was no other than Milan Lukic.

11 Some of the witnesses said that Milan came so often they even learned to

12 recognise his voice, and I refer Your Honours specifically to Witnesses

13 Berberovic, that's transcript 1953, and Dervisevic, that's transcript

14 1953 -- sorry, Berberovic is 2510.

15 The witnesses did not give generic descriptions of Milan Lukic,

16 as was posited this morning. I refer to our brief in this regard for the

17 details. That Witness Dervisevic's eyesight barred him from identifying

18 anyone is mere speculation. The Defence already raised this at trial and

19 the Trial Chamber considered this evidence, 804 of the trial judgement.

20 But more importantly, three of the witnesses learned Milan Lukic's

21 identity at the camp. They were told by a man named Saban Muratagic or

22 by other inmates. Muratagic was some sort of a watchman at the camp. He

23 knew Milan because they came from neighbouring villages and they had gone

24 to school together. That's what he told them -- that's what he told

25 Witness Berberovic and Witness Dervisevic.

Page 99

1 The witnesses all also provided other biographical data that they

2 learned at the time, that they learned about the man who regularly came

3 to the camp to beat them and who they saw many, many times. They

4 correctly stated that Milan Lukic came from Rujiste, that he had worked

5 in Serbia prior to the war, that he came with his cousin Sredoje Lukic,

6 that he was under 30 years old, and other details. Like one witness

7 mentioned that Milan Lukic had been imprisoned for a train kidnapping, a

8 fact which Milan Lukic himself confirmed in court when he gave his final

9 statement. There is nothing that would indicate that the witnesses only

10 learned this information years after the events, as suggested by the

11 Defence this morning. And I'll give you a short quotation from Witness

12 Dervisevic's transcript testimony before the Trial Chamber, that's

13 transcript 1962, and Dervisevic asked about how he learned about

14 Milan Lukic's identity answered:

15 "It was another man in detention, Saban Muratagic, who told me.

16 I think Milan Lukic is from a village close to his village, Zupa. Milan

17 is from Rujiste. He can confirm that. So this man knew him ..."

18 Under these circumstances alone, the Chamber was entitled to find

19 that it was Milan Lukic who beat the men. Your Honours, in this regard I

20 refer you to paragraph 196 of the Rukundo appeals judgement where the

21 Appeals Chamber held that a Chamber can rely on the evidence of witnesses

22 who learned of the identity of their abuser through other persons. The

23 fact that Saban Muratagic, from who Berberovic and Dervisevic heard it

24 was Milan Lukic who beat them, was not cross-examined by the Defence does

25 not matter in this regard. In any case, the Defence had ample

Page 100

1 opportunity to call Mr. Muratagic himself. In fact, he appeared on their

2 65 ter list.

3 Now, the Chamber also had the evidence of VG-25, a Rule 92 quater

4 witness who did know Milan Lukic before the war and who also said that he

5 was regularly beaten by Lukic at the camp. Because VG-25 did not testify

6 in person, the Chamber was very careful when taking his evidence into

7 account. But it found that VG-25 simply corroborated the testimony of

8 the three viva voce witnesses. In turn, their testimony corroborated

9 his. The Chamber also considered that these four men were all held

10 together for about eight months in the same hangar. It found that VG-25

11 would have confirmed the other detainees' knowledge of Milan Lukic.

12 Your Honours, Milan Lukic also complains about the fact that the

13 Chamber relied on Berberovic's and Dervisevic's in-court confirmation of

14 him. But contrary to what we heard this morning, the Chamber did not put

15 much emphasis on this. Given that both of these witnesses saw Lukic

16 many, many times at the camp, even recognising his voice, it simply

17 accepted their pointing out to Lukic in the courtroom as part of the

18 larger process of establishing his identity.

19 And again, the Chamber did not need to rely on the in-court

20 confirmation because it already had much evidence that the witnesses

21 recognised Milan Lukic at the camp.

22 Second, Your Honour, as a practical matter, in circumstances like

23 there were prevailing at Uzamnica camp, the Chamber should be able to

24 rely on such evidence, otherwise victims of crimes that went on for long

25 periods of time, such as unlawful detention or enslavement, would be

Page 101

1 excluded as recognition witnesses even though they had lots of

2 opportunity, as in this case, to become acquainted with their abuser.

3 Your Honours, four witnesses told the Chamber the same account;

4 that is, while they were detained under terrible circumstances,

5 Milan Lukic added to their misery by savagely beating and kicking them on

6 many occasions as he pleased and simply because he could. The Chamber

7 accepted their consistent and comprehensive evidence and correctly

8 convicted Milan Lukic for cruel treatment and inhumane acts in relation

9 to Uzamnica camp.

10 This concludes my submissions. Unless you have further

11 questions, I would pass on to my colleague Virginie Monchy.

12 MR. KREMER: Just before Ms. Monchy speaks, I recall that the

13 Defence used up about five minutes at the beginning of the -- this

14 afternoon -- or this session after the break and there may be a

15 miscalculation. By our calculation we started at 11.40, and

16 consequently, if we have one hour and 15 minutes, we should be able to go

17 until another 12 minutes. But it's a small point, but I'd ask for the

18 Chamber's indulgence.

19 JUDGE GUNEY: [Microphone not activated]

20 THE INTERPRETER: Microphone, please.

21 JUDGE GUNEY: [Interpretation] How much time do you need

22 approximately?

23 [Prosecution counsel confer]

24 MR. KREMER: Between -- Ms. Monchy advises me no more than 12 or

25 13 minutes.

Page 102

1 JUDGE GUNEY: [Interpretation] We resumed after the break with

2 five minutes -- we were five minutes late, in fact. So in order to

3 compensate this problem - and I think that you need the time - we shall

4 grant you 10 extra minutes.

5 MR. KREMER: Thank you very much, Your Honour.

6 MS. MONCHY: Your Honours, the Trial Chamber convicted

7 Milan Lukic for the murders at the Drina River, the Varda factory, and

8 for the murder of Hajra Koric on the basis of solid eye-witness evidence

9 and all of these witnesses knew Milan Lukic before the murders. All

10 challenges raised by Milan Lukic this morning have been addressed in

11 detail in our written submissions.

12 Turning -- I will briefly be turning to the Drina River, the

13 Varda killings, and, if I have any time left, to the Koric murder.

14 The eye-witnesses' evidence of -- concerning the Drina River

15 incident. The eye-witness evidence of the two survivors VG-32 and VG-14

16 and the evidence of Milan Lukic's accomplice, Mitar Vasiljevic, is

17 credible and reliable. The Trial Chamber reasonably relied on VG-14's

18 and VG-32's prior knowledge of Milan Lukic; second, on their immediate

19 recognition of him on the 7th of June and on their similar description to

20 him. Contrary to what the Defence has been asserting this morning, the

21 Trial Chamber did not rely on the in-court confirmation that Milan Lukic

22 was the man who shot them. VG-14 and VG-32 are recognition witnesses

23 because VG-14 knew Milan Lukic from secondary school which they attended

24 together at the age of 16 and 17. And he recognised him immediately when

25 Milan Lukic entered his house to take him away.

Page 103

1 Concerning the issue of a mole that has been addressed this

2 morning, it has been explored at length at the trial and in the trial

3 judgement. And I will refer Your Honours to judgement paragraph 129 to

4 131, and 201.

5 VG-32 knew Milan Lukic because he had seem him twice at least

6 before the murders and he had been told who Milan Lukic was. He

7 recognised him as soon as Lukic approached the house of his father-in-law

8 to kidnap him. And in addition, when VG-32 was detained in the house

9 after Milan Lukic had kidnapped him, he heard one of the men guarding

10 them referring to Milan Lukic by his name.

11 In concluding that both witnesses recognised Milan Lukic on the

12 7th of June, the Trial Chamber reasonably considered that both witnesses

13 gave very similar descriptions of Milan Lukic and that they were exposed

14 to Milan Lukic, often at close range, for several hours and during

15 daylight. And I just have a small specification to make with respect to

16 one of the Defence allegations in his reply brief. VG-32 described

17 Milan Lukic's physical appearance and this is in Exhibit 1D30 at

18 page 242.

19 Turning now to Mitar Vasiljevic. The Trial Chamber considered

20 the Defence's argument that Vasiljevic had an incentive to lie about

21 Milan Lukic's involvement. But it reasonably rejected it on the basis

22 that Vasiljevic's evidence corroborated VG-14's and actually VG-32's

23 evidence. And this is at judgement paragraph 195. And the Defence

24 doesn't show that -- that this was unreasonable.

25 As to the Defence allegation this morning that Vasiljevic,

Page 104

1 knowing that Milan Lukic will not be arrested, implicated him, this is

2 purely speculative and contrary to the evidence. And I will refer

3 Your Honours to the Prosecution final trial brief at paragraph 45 and 46.

4 Turning now to the Varda factory murders. There was solid

5 evidence that Milan Lukic was the shooter. The Trial Chamber reasonably

6 relied on the evidence of the two main eye-witnesses, VG-24 and VG-42, to

7 convict Milan Lukic for the Varda factory murders. It reasonably found

8 that they first knew him from before; and second, that they both

9 recognised Milan Lukic as the killer and that their evidence was

10 corroborative of one another as to his actions.

11 Concerning VG-24 and VG-42's prior knowledge of Milan Lukic, this

12 issue has been -- sorry, Your Honour. This issue has been carefully

13 analysed by the Trial Chamber and the Trial Chamber reasonably considered

14 VG-24's testimony that he knew Milan Lukic when he was 12 or 13 years old

15 and that she knew his family. It also properly considered that VG-24

16 knew Milan Lukic well because in 1992, before the murders, he had become

17 a regular visitor to the Varda factory where VG-24 worked.

18 As for VG-42, the Trial Chamber reasonably found that she knew

19 Milan Lukic before the murders. She knew him as a child, as mentioned by

20 the Defence this morning, because his -- her son, sorry, had been friends

21 with Milan Lukic; but also because her father was a close friend of

22 Milan Lukic's grandfather and because of so -- she knew Milan Lukic's

23 parents and details of his life.

24 The Trial Chamber -- the Judges considered that VG-42 had

25 sometimes difficulties to understand the questions she was being asked or

Page 105

1 to remember dates. They also considered the inconsistencies in her

2 evidence. However, having observed VG-42's demeanour during her

3 testimony, they reasonably found that this did not undermine her clear

4 and repeated evidence that she knew Milan Lukic well.

5 Turning to my second point, both VG-24 and VG-42 recognised

6 Milan Lukic and gave corroborative evidence as to his actions. Both

7 witnesses saw the events and Milan Lukic from a different vantage point

8 and over an extended period of time. VG-24 was inside the factory and

9 saw Milan Lukic from very close. Witness VG-42 saw the same events from

10 the balcony of the top floor of a house, a higher and unobstructed point

11 of view. Both witnesses saw the workers -- Milan Lukic herd the workers

12 towards the Drina River and lining them up in front of the water. VG-42

13 saw Milan Lukic killing the workers one after the other, while VG-24

14 heard a burst of fire.

15 The Trial Chamber carefully considered the discrepancies between

16 their evidence and it reasonably found that they resulted from the

17 differences in their respective vantage points.

18 The Trial Chamber was also well aware of a risk of

19 misidentification with respect to VG-42 and it considered in detail the

20 evidence challenges regarding her ability to recognise Milan Lukic from a

21 location and it reasonably rejected them. And I will refer Your Honours

22 to judgement paragraph 300, 321, 262, and 258.

23 I have been indicated that I'm running out of time, so unless you

24 have any questions I will conclude my submissions now.

25 JUDGE GUNEY: Judge Liu has a question.

Page 106

1 JUDGE LIU: Well, I just have points which I would like to ask

2 some clarifications from Mr. Kremer.

3 Mr. Kremer, in your submissions you mentioned that the

4 extermination is somehow related to the contextual factors surrounding

5 particular killings and you also told us Koritnik and Bikavac are two

6 small villages. I just want to ask how big those villages are, I mean

7 how much population in total in those two villages and what's the ethnic

8 percentage in those villages? If you could not answer these questions

9 right now, you may come back in the afternoon or tomorrow morning, as you

10 like.

11 [Prosecution counsel confer]

12 MR. KREMER: My understanding is that the village of Koritnik had

13 approximately 60 Muslims living in it at the time and most of them were

14 killed as a result of this incident. That's in the trial judgement. I

15 can find the reference for you and provide it after lunch.

16 JUDGE LIU: Yes, thank you.

17 MR. KREMER: Okay. Thank you.

18 JUDGE GUNEY: [Interpretation] Have you finished? Thank you.

19 I would like now to invite the counsel for Milan Lukic to present

20 the submission in reply. You have half an hour to do so.

21 MR. VISNJIC: [Interpretation] Thank you, Your Honours. I

22 apologise in advance if we seem confused a bit, but I will provide one

23 part of the response and the other part will be provided by Mr. Ivetic

24 and we will be taking turns.

25 I should like first to state that I agree fully with Mr. Kremer,

Page 107

1 that the key issue in this case is the issue of identity. As

2 Judge Robinson said himself on transcript page 372 in this case. Judging

3 by the number of the page, it must have been at the beginning of the

4 trial.

5 As the trial proceeded, I believe this assertion lost in weight,

6 and finally, the reference made by Mr. Kremer to the principle applied by

7 the Trial Chamber in deciding on the issue of identification to be found

8 in paragraph 30 of the trial judgement indicates that there is nothing

9 about the most important thing in this case. The quotation made by

10 Mr. Kremer is from a footnote to that paragraph which as a secondary

11 reference indicates the judgement in Haradinaj et al., which makes a

12 passing reference to the Rules set out in the appeals judgement in

13 Kupreskic.

14 We believe this is an inadequate corroboration of the claims made

15 by Mr. Kremer as to which standards were applied in the judgement. I

16 believe the Appeals Chamber should have a real concern that adequate

17 standards have not been consistently applied.

18 Concerning identification evidence, the Prosecution asserts that

19 regardless of everything, the Trial Chamber did apply relevant factors in

20 relation to each crime site. In our appeal brief we claimed the opposite

21 and we made our points very clearly.

22 However, on one issue we can agree with Mr. Kremer, he emphasised

23 that the witnesses are still traumatised by their experiences. However,

24 nowhere in the judgement was consideration given to the effect of trauma

25 on identifications made by the witnesses.

Page 108

1 Regarding the issue of identification in court, several legal

2 sources have been quoted, including the judgement in Limaj, the appeal

3 judgement in Limaj. In this connection I should like to say that in the

4 Limaj case certain witnesses claimed they were able to identify and

5 recognise the accused and identified him in the courtroom. And as we can

6 see in paragraph 25 of this appeals judgement, the Chamber believed this

7 procedure to be inappropriate.

8 At issue was the accused, a camp guard known at the time under

9 the name of Shala, and there were three witnesses. One of those was N-04

10 who described his assailant and said he learned his name after the war.

11 Another witness, L-07, claimed that after the war the accused introduced

12 himself as Shala. The third witness, L-10, said he heard that name from

13 other detainees in the camp and that's how he was able to recognise the

14 accused. The facts described are very similar to those in our case.

15 However, it needs to be emphasised that the Prosecution in the

16 Limaj case agreed that in-court identifications should not be given great

17 weight without prior notice in the attempts to confirm the identity of

18 the accused by the witnesses who recognise him. In any case, the

19 Appeals Chamber in Limaj decided that no probative value should be

20 attached to in-court identifications. Nevertheless, the Trial Chamber in

21 this case cited the Limaj case in support of a totally opposite

22 conclusion.

23 Another case containing similar elements is Kamuhanda, where the

24 probative value of identifications by three witnesses was considered.

25 One witness, GAF, stated that before the incident he had seen the accused

Page 109

1 a number of times, and therefore the Appeals Chamber accepted that GAF

2 had recognised the witness. By the standards applied in this case,

3 Witness GAF would be a recognition witness.

4 Another witness, GES, said in his statement that he had known the

5 accused for three years. So the Appeals Chamber allowed the possibility

6 that GES was able to recognise the accused. Again, by the standards in

7 this case, Witness GES would be a recognition witness.

8 A third witness, GAA, had seen the accused twice before when the

9 accused had been pointed out to him. By the standards applied by the

10 Prosecution in this case, Witness GAA would also be a recognition

11 witness. However, the most important thing is and the most curious thing

12 is that the Appeals Chamber in Kamuhanda case decided not to attach any

13 weight to in-court identifications by these witnesses.

14 The next point made by Mr. Kremer refers to a number of cases

15 from our domestic system that both the Defence of Milan Lukic and the OTP

16 refer to in their briefs. In our preparations for this hearing, we just

17 found a case recently completed that would soon be argued before the

18 Supreme Court of the United States and I would like the floor -- to give

19 the floor briefly to Mr. Ivetic. He would need only two or three minutes

20 to tell you something about this case called Henderson.

21 MR. IVETIC: Your Honour, Mr. Kremer at page 25 of today's

22 transcript said that neither the Rules nor the jurisprudence of the

23 Tribunal oblige a Trial Chamber to require a particular type of

24 identification evidence. But we would submit that ICTY Chambers should

25 be mindful of developments as to identification evidence in the world

Page 110

1 around them in the various legal jurisdictions, so as to stay current

2 with major legal trends. The issue of identification evidence is at the

3 centre stage in the United States, where a case, New Jersey versus

4 Henderson, which was just decided August 24th, 2011, by the Supreme Court

5 of New Jersey, is scheduled to be heard by the United States Supreme

6 Court in its November session. And it deals with recognising the serious

7 concerns as to the existing modus of identification evidence in courts of

8 law. And that's State versus Larry Henderson, number 62,218, and as I

9 said, the New Jersey Supreme Court decided the case August 24th, 2011,

10 and I'd like to quote just a few short selections from it.

11 In the opinion of the -- in the opinion of the Supreme Court of

12 New Jersey, the scientific evidence it reviewed -- the significant

13 scientific evidence it reviewed showed:

14 "Convincing proof that the current test for evaluating the

15 trust-worthiness of eye-witness identifications should be revised" --

16 THE INTERPRETER: Would counsel kindly slow down, please.

17 MR. IVETIC: I will try.

18 "Study after study revealed a troubling lack of reliability in

19 eye-witness identifications.

20 "We are convinced from the scientific evidence in the record that

21 memory is malleable, and that an array of variables can affect and dilute

22 memory and lead to misidentifications. Those factors include system

23 variables like line-up procedures, which are within the control of the

24 criminal justice system, and estimator variables like lighting conditions

25 or the presence of a weapon, over which the legal system has no control."

Page 111

1 Your Honours, in promoting a change in the way the American

2 courts view identification evidence, the New Jersey Supreme Court in its

3 decision said:

4 "At stake is the very integrity of the criminal justice system

5 and the court's ability to conduct fair trials."

6 Your Honours, we're only asking for the Appeals Chamber to ask

7 its Chambers here to exercise the same diligence in examining the

8 identification evidence and to recognise that although there is not a

9 consensus as to the identification evidence, the -- the jurisprudence

10 that Mr. Visnjic has set forth has identified factors that need to be

11 taken into account and the very serious concerns with the manner in which

12 the identification evidence in this case was handled.

13 And I will return to him -- do you have any more? I will return

14 to him for any more submissions on reply.

15 MR. VISNJIC: [Interpretation] Thank you.

16 Your Honours, I should now like to turn to the assertions made by

17 Mr. Kremer regarding VG-13. Mr. Kremer said that the problem with VG-13

18 was that in-court identification they made. What we said and what the

19 Prosecution also stated in their appeal brief is that the Prosecution

20 itself did not rely on VG-13 because he is not a recognition witness.

21 That is the gist of the Prosecution's claim, and we believe that

22 Mr. Kremer failed to explain this.

23 As for other witnesses who had seen Milan Lukic, we have already

24 stated in our earlier submissions today that especially with regard to

25 VG-38 and VG-78 and VG-101, the Chamber should take into account also

Page 112

1 their identification of Mitar Vasiljevic on site, and then if the Chamber

2 accepts Vasiljevic's alibi, then it should weigh the importance and the

3 import of these statements with reference to Milan Lukic which the

4 Trial Chamber failed to do.

5 Regarding the Bikavac incident, I think we have dealt with it

6 sufficiently in our appeal brief and earlier submissions.

7 As regards the submissions on Uzamnica, the Prosecution says that

8 as a practical matter we should rely on identification evidence when a

9 person's identity becomes known during a beating in this case. From the

10 viewpoint of the Prosecution that is possible; however, as a matter of

11 principle, protection must be ensured to the accused under those

12 circumstances. The key issue here that pertains to the practical matter

13 raised by the OTP was why they didn't take recourse to out-of-court

14 identification or similar procedures in the preliminary investigation

15 processes. We submit that it shouldn't be permissible for the accused to

16 be identified for the first time in the court, as it was the case under

17 present circumstances.

18 [Defence counsel confer]

19 MR. VISNJIC: [Interpretation] Your Honours, Mr. Ivetic would like

20 to add something with relation to extermination.

21 MR. IVETIC: I will be brief again, Your Honours.

22 Returning to extermination. First Judge Liu's second question to

23 the Prosecution. Bikavac is not a separate village. Bikavac is simply a

24 neighbourhood within Visegrad town. In both instances, the killings are

25 not said to have taken place in the respective villages, but are said to

Page 113

1 have taken place in Visegrad town itself, with a population of

2 20.000 persons.

3 If we were to consider the contextual factors, such as the

4 population, an accused must also be shown to have known about these

5 contextual factors. I think I'm right in saying that there was no

6 evidence that Milan Lukic knew what the size of the group from Koritnik

7 was in relation to the population of that village. So I think that this

8 is not the right case to start introducing that as a specific legal test

9 for extermination.

10 I stress as to Bikavac the victims were from several different

11 villages and the Trial Chamber focused not on their origin but on their

12 status as being vulnerable in its analysis. That's at trial judgement

13 paragraph 949. So again, there is inconsistency and error in the

14 Chamber's -- the Trial Chamber's approach.

15 Now turning to the Prosecution's submissions of today, which we

16 say misstate the holdings of relevant jurisprudence which they cite.

17 Paragraph 472 of Brdjanin does not separately say that Brisevo was

18 extermination. The paragraph cumulates each site. The number of those

19 killed in Brisevo was considered in light of the surrounding

20 circumstances, i.e., the other killings occurring at that time. And that

21 would be paragraph 472 of Brdjanin. And, in fact, if we look at the

22 actual text of that holding, Your Honours, since the parties -- this is

23 the Chamber -- the Appeals Chamber:

24 "Since the parties do not challenge the Trial Chamber's decision

25 to consider all of the killings in the territory of the ARK as a whole

Page 114

1 rather than to distinguish them by location and incident, the Appeals

2 Chamber need not consider this issue. Suffice it to say that with

3 respect to these specific incidents cited by the Prosecution which

4 involved the killing of between 68 and 300 people in each of the five

5 locations, the Appeals Chamber is satisfied that the actus reus of the

6 crime of extermination was made out."

7 And I stress the final line of that holding, which is:

8 "... the Appeals Chamber considers that the scale of the killings

9 in light of the circumstances in which they occurred meets the required

10 threshold of massiveness for the purposes of extermination."

11 So again, the Prosecution is not right.

12 With regard to Martic, the Prosecution again is not right,

13 Your Honours. Paragraph 404 says:

14 "Having considered these factors as well as the totality of the

15 evidence surrounding the killing incidents charged as extermination, the

16 Trial Chamber finds that the evidence is insufficient to establish that

17 the crime of extermination was committed on an accumulated basis."

18 I also direct you to look at paragraph 405, where the

19 Trial Chamber said:

20 "Even in the case of two killings in an organised and callous

21 manner, the Trial Chamber said it can't" -- that:

22 "These killings, even taken together, cannot be considered as

23 having been committed on a large scale."

24 Continuing the quotation of the Chamber:

25 "In other words, the killings at Krecane near Bacin do not meet

Page 115

1 the element of massiveness required for extermination."

2 So again we believe Martic supports our point.

3 JUDGE GUNEY: [Interpretation] Try to conclude, please, because we

4 are coming very close to the limit of the time available for the tapes.

5 MR. IVETIC: Let me just finish one thing quickly.

6 I add simply that massiveness in plain English suggests a large

7 number. Again, we are not inviting the Appeals Chamber to set a minimum,

8 but there must be a large number or else the distinction between murder

9 and extermination becomes impossible to maintain. We submit there is no

10 need to introduce such uncertainty at this late stage of the Tribunal's

11 life.

12 And I would turn the floor over to Mr. Visnjic for one quick

13 point that he has. Thank you.

14 MR. VISNJIC: [Interpretation] Your Honours, just two brief

15 submissions. One relates to in-court identification. The Prosecution

16 did not reply to our submission regarding the prejudice -- prejudicial

17 nature of the repeated in-court identification. And if it is believed by

18 them that this procedure was completely useless, then they shouldn't have

19 attempted it at all in the course of the proceedings. The second issue

20 relates to general issues concerning the findings of the Trial Chamber in

21 this case. The findings of the Trial Chamber in this case can be applied

22 only if the Appeals Chamber is happy with the fact that the Trial Chamber

23 has applied law in a proper way. This is not the case in Milan Lukic

24 case at least as far as problems with identification are concerned. For

25 that reason we believe that the Appeals Chamber in that respect should

Page 117

1 recognised Sredoje Lukic in the photo-spread or not.

2 I invite the parties to talk about this issue, to develop this

3 topic, taking into account the possibility that this evidence could be

4 exculpatory and that Sredoje Lukic was not indicted specifically for

5 having killed this victim.

6 The second question is the following. The Trial Chamber conclude

7 that in March 1993 and the first part of April 1993 -- Milan Lukic

8 appealed this conclusion in his sixth ground of appeal. I would like to

9 invite the parties to assess the potential impact on the appeal of

10 Sredoje Lukic. In other words, to assess the impact of Milan Lukic's

11 detention on the conviction of Sredoje Lukic.

12 And now I would like to ask the counsels for Sredoje Lukic to

13 take the floor.

14 MR. CEPIC: [Interpretation] Thank you, Your Honours, for the

15 questions that you have put. As stated in our appeal ground number

16 eight, we were astounded by such position taken by the Prosecution and to

17 this date the material that we pointed out has not been disclosed to us.

18 In other words, the chief of OTP investigation team, Ib Jul Hansen,

19 clearly said in his evidence before this Tribunal and confirmed that no

20 photo of my client, Sredoje Lukic, was used for the purposes of

21 identification.

22 Moreover, when we speak about the Pionirska Street incident, in

23 addition to the appeals ground, I would like to highlight the following

24 fact. The other two witnesses on which the Chamber wishes to base their

25 conclusion relating to Uzamnica, that is to say, Witnesses Nurko

Page 118

1 Dervisevic and Islam Kustura, immediately after being released from

2 detention gave statements to authorised police investigators. In those

3 statements they named a large number of perpetrators and not a single one

4 of the two gave the name of Sredoje Lukic. Moreover, Nurko Dervisevic

5 actually gave three statements marked 2D15, 2D16, and 2D17, whereas

6 Mr. Kustura's statement is 2D19.

7 I would like to make reference to His Honour Judge May and his

8 book entitled: "Evidence in International Criminal Law." [In English]

9 Actually, "International Criminal Evidence," paragraph 7.89, pages 242

10 and 243, best available evidence.

11 [Interpretation] If we are to apply this rule, then these

12 statements in Uzamnica case and the lack of identification that we

13 pointed out in our appeal would inevitably lead to exoneration of

14 Mr. Sredoje Lukic as far as this incident is concerned. I will add one

15 sentence only to this. Witness VG-25 mentioned by my learned friend

16 Schuster from the OTP testified in favour of my client by saying that he

17 had never come to Uzamnica camp. I believe that the appeal arguments and

18 the submissions that I am making right now are quite sufficient for

19 Mr. Sredoje Lukic to be relieved of any responsibility for this incident.

20 Thank you.

21 With your leave, I might add one more sentence. In paragraph 839

22 of the judgement, it is stated that the witness did not know

23 Sredoje Lukic well, and when asked to describe him, to describe

24 Sredoje Lukic, neither Islam Kustura or Adem Berberovic were capable of

25 doing so in a proper way. Thank you for your attention once again.

Page 119

1 [Microphone not activated]

2 JUDGE GUNEY: [Microphone not activated]

3 THE INTERPRETER: I'm afraid the mikes were not activated.

4 MR. CEPIC: We have got nothing to add in the interest of time,

5 Your Honour, so ...

6 JUDGE GUNEY: Okay.

7 MR. CEPIC: Thank you, Your Honour.

8 JUDGE GUNEY: [Interpretation] Very well.

9 You have an hour and 15 minutes.

10 MR. CEPIC: [Interpretation] Thank you, Your Honours. I would

11 like now to say a few words about the Pionirska Street incident, but

12 before I start my submission I would be grateful if, with your leave, I

13 can distribute the tables that I gave to court officers which contain

14 crucial parts from the judgement and our appeal brief and our

15 submissions. This will facilitate the presentation that Professor Knoops

16 and I are going to make.

17 JUDGE GUNEY: [Interpretation] Could I have the opinion of the

18 Prosecutor.

19 MR. KREMER: Yes, Your Honour. Mr. Cepic before the break gave

20 me a copy of the PowerPoint and the table. I have no objection to it

21 being given to the members of the Panel. He also, just to forecast an

22 issue, gave me a copy of the submissions by Mr. Knoops. I haven't had

23 time to read them because I just read them which he's proposing to give

24 to the Legal Officers after. I'll state my position once I've had an

25 opportunity to review it. But for the PowerPoint and the table, I have

Page 120

1 no objection.

2 JUDGE GUNEY: [Interpretation] If there aren't any objections, you

3 can distribute those documents. Thank you.

4 MR. CEPIC: I will be kindly -- I would kindly ask the Legal

5 Officers to provide the Honourable Judges with the copies of our

6 presentation.

7 [Interpretation] Your Honours, as you can see the table consists

8 of three pages, the first one is robbery in Pionirska Street, the second

9 page is the transfer, and the third one will accompany Professor Knoops'

10 presentation and the standards advocated before this Tribunal. My

11 presentation will be rather brief. I'll try and do it within the next

12 20 minutes and I will leave the rest of the time to Professor Knoops,

13 whereas my learned friend Mr. Dieckmann will respond to the Prosecutor's

14 appeal tomorrow.

15 We claim that Mr. Lukic was not in Pionirska Street. It hasn't

16 been proven beyond a reasonable doubt that Sredoje Lukic was present and

17 that he participated in the incident. Professor Knoops and I will answer

18 the three key issues with regard to this incident. The first question is

19 this: Was Sredoje Lukic present at the Pionirska Street incident?

20 Question number two: Even if the Chamber finds that Sredoje Lukic was

21 indeed there, has it been proven beyond reasonable doubt that he was

22 armed? And question number three: Even if the Chamber finds that

23 Sredoje Lukic was there, that he was visibly carrying arms, was such

24 evidence sufficient to prove the aiding and abetting as crimes? And

25 these are precisely the three questions, Your Honours, that you presented

Page 121

1 in your 6 September order.

2 We are not going to repeat the arguments that we presented in the

3 appeal brief. We will show that the Trial Chamber was erroneous in their

4 analysis of evidence. The Appeals Chamber has a duty to prevent a

5 miscarriage of justice and must correct legal errors that are

6 invalidating a judgement in all cases before the Tribunal. I am

7 referring here to the Appeals Chamber judgement in the Kupreskic case

8 especially paragraphs 127 through 227, where the Trial Chamber's findings

9 were reversed in relation to Witness H. We have a similar situation in

10 our case like in the Kupreskic case, especially taking into account the

11 conflicting evidence explained in our appeal in paragraphs 1 and 2, and

12 now I'm going to present some additional arguments.

13 We therefore urge the Appeals Chamber to interfere by applying

14 the same standards as it did in paragraphs 222 through 227 of the

15 Kupreskic appeals judgement, and I would like to start with my PowerPoint

16 presentation, page 1.

17 And now if you look at the screens before you, in keeping with

18 the indictment and the evidence presented by the Prosecutor, we will say

19 that the incident at Pionirska was divided by the Prosecutor into

20 five different stages. The first one is arrival of the Koritnik group,

21 the second is the robbery, the third is the strip-search, the fourth is

22 the transfer, and the fifth the events at Adem Omeragic's house.

23 And can we now move on to slide number 2.

24 [In English] Is everything fine with the presentation? May I

25 continue, Your Honour?

Page 122

1 [Interpretation] I hope that you have slide number 2 on the

2 screens before you and this slide depicts the five stages of the

3 incident, and if you look at those, the Trial Chamber has found that

4 Sredoje Lukic was present and that he was involved in incidents number 2

5 and 4, namely, the robbery and the transfer. I would like to point out

6 that Judge Robinson presented a dissenting opinion with regard to the

7 participation of Sredoje Lukic in the transfer. I have to say that there

8 was a considerable time-span between the two incidents. The robbery took

9 place about 4.00 or 5.00 in the afternoon, whereas the transfer took

10 place around 11.00 in the evening. Even with such factual findings,

11 Judge Robinson's dissenting opinion, if it had been supported by the

12 Trial Chamber, a question would be posed: What would be the legal

13 foundation for Sredoje Lukic's participation in the robbery alone?

14 What I would like to point out - and I would like to refer you to

15 the slide - the Trial Chamber concludes that Sredoje Lukic was present in

16 the robbery based on the testimonies of four witnesses. They are VG-038,

17 VG-18, VG-084, and Huso Kurspahic. Four of the total of nine witnesses

18 who provided evidence and they are actually the weakest link, in our

19 submission, in the charges brought against Sredoje Lukic.

20 What we did not point out in our appeal brief and I would like to

21 point out at this point is the contradiction between the findings

22 relative to these witnesses. And if you would like to look at the first

23 column, you will see that there is a paragraph marked for each of these

24 witnesses. In the second column we provided all the exculpatory

25 evidence. In the third column there is a reference to identification.

Page 123

1 And in the fourth column there is a question, and that is whether there

2 is ample evidence to prove that Sredoje Lukic was armed. And

3 Professor Knoops will say more about that.

4 We believe that the Trial Chamber's conclusion from

5 paragraphs 593 and 930 of the judgement, whereby the Trial Chamber placed

6 Sredoje Lukic outside of the house during the robbery that was taking

7 place in the house. Contrary to that finding, none of the four witnesses

8 were able to establish that Sredoje Lukic was outside of the house while

9 the robbery was taking place inside the house.

10 VG-38, according to the Trial Chamber, only heard from other

11 persons who Sredoje Lukic was. VG-18 and 84 allegedly heard when he

12 presented himself and introduced himself in the house, whereas

13 Hasib Kurspahic provided hearsay evidence nonspecific to the whereabouts

14 of the appellant during the incident.

15 I have to correct a word that I used on page 18 [as interpreted],

16 line 18, Huso Kurspahic.

17 Furthermore, I would like to point out the double standards that

18 the Trial Chamber uses in respect of the previous jurisprudence of the

19 Tribunal. In the Vasiljevic case, the same witness, Huso Kurspahic, was

20 called as a witness and he testified about the same incident. He

21 presented the same evidence. However, the Trial Chamber in the

22 Vasiljevic case refused to accept everything that the witness stated and

23 that was not in the statement of his father who was a survivor of the

24 incident, Hasib Kurspahic. Completely different conclusions were reached

25 at -- during that case.

Page 124

1 I would like to point out that it was Hasib Kurspahic, who is

2 Huso Kurspahic's father and who survived the incident, gave an interview

3 only 24 days after the incident and that was the first piece of evidence

4 in this case. Again I would like to make reference to Judge May and his

5 book on international criminal evidence and the rule on the best

6 evidence. The significance of this evidence lies in the fact that nobody

7 ever contradicted this evidence. It is Exhibit Number P40 and another

8 one, P41. And in this interview Hasib Kurspahic mentioned quite a number

9 of names, including Mitar Vasiljevic, who was convicted before this

10 Tribunal.

11 The Trial Chamber established that Hasib Kurspahic and

12 Sredoje Lukic were well acquainted before the war, they knew each other

13 well before the war. If Sredoje Lukic had indeed been involved in the

14 incident, i.e., if he had been at the crime scene, Hasib Kurspahic would

15 have certainly mentioned him in the interview.

16 And, Your Honours, I now would kindly ask you to look at page 2

17 in our tables. That page contains the conclusions of the Trial Chamber,

18 exculpatory material identification and the question whether the

19 Trial Chamber found that any of the witnesses provided ample evidence or

20 sufficient evidence that my client was indeed carrying arms during the

21 incident.

22 The conclusion of the Trial Chamber in paragraph 607 is again

23 very contradictory to the conclusions of the Trial Chamber in terms of

24 the robbery. Certain ambiguities appear which are very significant. How

25 was it possible for somebody who did not see Sredoje Lukic but only heard

Page 125

1 of him and about him, allegedly saw him at that moment, and without any

2 prior information about Sredoje Lukic, and there was also no voice

3 recognition. And again, a completely different standard is applied to

4 the testimony of Huso Kurspahic than the one applied in the Vasiljevic

5 case.

6 In our appeal brief you will find a more detailed elaboration of

7 this argument, but what I would like to say is this: The evaluation of

8 evidence by the Trial Chamber was completely erroneous. On the one hand,

9 the Trial Chamber uses the evidence of 13-year-old boys to conclude as

10 well as a hearsay witness, Huso Kurspahic; and on the other hand, we have

11 credible witnesses who demonstrated that Sredoje Lukic was not present

12 during the incident. Those witnesses are VG-13, mother of Witness VG-38,

13 the two of them were together throughout the entire duration of the

14 incident.

15 VG-13's mother knew -- [In English] Mother of VG-13 knew Sredoje

16 Lukic before the incident. [Interpretation] Whereas the son, VG-38, did

17 not know him.

18 The conclusion of the Trial Chamber regarding the mother was that

19 there was no evidence to show that Sredoje Lukic was there, and on the

20 other hand, there is credibility given to the testimony of VG-38.

21 Another contradiction can be seen between Hasib Kurspahic's

22 testimony, i.e., his interview, and the evidence provided by

23 Huso Kurspahic. And in addition to that I would like to mention some

24 other Prosecution witnesses who never mentioned Sredoje Lukic and those

25 were VG-78, VG-101, CW-2, and last witness knew Sredoje Lukic from before

Page 126

1 the war but in her evidence she did not mention him as one of the

2 participants in the incident. And I am saying all this in order to make

3 reference to the standards applied in the Limaj case. In paragraph 153

4 of the appeals judgement it is stated that when it comes to the

5 evaluation of identification evidence one has to take into account both

6 evidence for and against. In addition to that I'm referring to

7 paragraphs 39 and 40 in the Kupreskic case appeals judgement, where the

8 Appeals Chamber found that:

9 "A Trial Chamber must proceed with extreme caution when assessing

10 a witness's identification of the accused."

11 The Trial Chamber did not emphasise a single important fact that

12 adversely affects identification evidence and thus omitted to state its

13 reasoned opinion. I would now like to draw your attention to the screens

14 before you with a summary of our presentation. In our appeal brief --

15 and again we have tried to present a reasonable alternative as to who

16 might have been at the crime scene instead of Sredoje Lukic. This is an

17 excerpt from the testimony of Mitar Vasiljevic.

18 The Prosecutor clearly asks about a description of the fourth

19 member of the group at the crime scene, and Mitar Vasiljevic clearly

20 indicates VGD4, whereas in this case he testified that Sredoje Lukic had

21 not been in Visegrad on that day at all. The same description was

22 provided by a number of witnesses.

23 VGD4 has a name and surname and they are in evidence. To date we

24 have received no disclosure regarding any possible investigation against

25 VGD4, although his identity is known, and although there is enough

Page 127

1 evidence that VGD4 was involved in this crime rather than Sredoje Lukic.

2 Moreover, VGD4 is also mentioned regarding the river Drina incident.

3 The Trial Chamber failed to even consider this important

4 evidence. Therefore, we must point out that once again the Trial Chamber

5 failed to provide a reasoned opinion. The question arises: How could

6 the Trial Chamber find that it was proven beyond reasonable doubt that

7 Sredoje Lukic was present throughout the Pionirska Street incident,

8 considering that the role of VGD4 in this incident has never been

9 investigated?

10 Thank you for your attention, Your Honours, and now I'm giving

11 the floor to my learned friend Mr. Knoops.

12 MR. KNOOPS: Thank you, Your Honours, for giving me the floor.

13 Thank you, Mr. Kremer, for accepting the PowerPoint presentation.

14 Your Honours, I've put my oral submissions on paper just to

15 assist the Chamber with the references and I can speed up my oral

16 submissions by perhaps presenting the presentation to the Legal Officers

17 so they can follow the oral submissions, and I can skip the references

18 because you find in the footnotes all my references to the case law and

19 the legal textbooks. Thank you.

20 MR. KREMER: I'm going to object to it being distributed, on the

21 basis that this material is argumentative and Mr. Knoops can, in fact,

22 argue based on his oral submissions. It has new material which is not in

23 the brief and our quick review suggests maybe it raises new arguments

24 that are not even in the appeal. And so I would ask that if Mr. Knoops

25 is only concerned about references to cases --

Page 128

1 MR. KNOOPS: That's right.

2 MR. KREMER: -- that he wants to provide to the Legal Officers,

3 then I have no objection to you taking those out and putting them on a

4 separate sheet. But in terms of the argument in total which goes on for

5 about 21 pages, I think that it would be unfair at this point to add new

6 submissions without having a full opportunity to review them and discuss

7 them and reply to them.

8 So I offer that as an alternative to the Chamber.

9 MR. KNOOPS: I have no problem with that, Your Honour. It's not

10 a problem for me. It was just a matter of courtesy to the Court, but if

11 the Prosecution objects, I have no problem that we just provide the

12 references. I will show it -- it has no new arguments in it, just

13 further substantiation of our arguments. But let's move on and I can

14 indicate to the Chamber where the relevant references are in view.

15 [Appeals Chamber confers]

16 JUDGE GUNEY: [Interpretation] Did you accept how we shall

17 proceed? This has been accepted by the Prosecution. I believe that the

18 issue has been settled.

19 MR. KNOOPS: It was my understanding that this concerns only the

20 PowerPoint presentation which was accepted, not the submission I just

21 handed over. But I accept the objection of the Prosecution in terms of

22 if the Prosecution thinks that they have too little time to prepare, it's

23 fine with me. It's just an extensive reflection of my oral submissions

24 and it's just there to assist the Chamber and, with all respect, I will

25 not waste time discussing this document. I can move on with my oral

Page 129

1 arguments and present the reference in a separate document, no problem

2 with that.

3 JUDGE GUNEY: [Interpretation] Thank you. Thank you for your

4 understanding. As regards the point at issue, I would like to thank both

5 parties. You may proceed.

6 MR. KNOOPS: Thank you, Your Honour.

7 Your Honour, I will deal with the third -- with the question the

8 Chamber asked us in a 6 September order to address. But of course,

9 before I go into that specific question, it is to be emphasised that the

10 precondition for answering this question the Chamber asked us to address

11 is, of course, the positive answer to the questions, the first two

12 questions, raised by my learned friend Mr. Cepic: Was Mr. Sredoje Lukic

13 present at all at the crime scene; and if so, was he armed at the crime

14 scene? And when there is no compelling or credible evidence to this

15 extent, I quote the Appeals Chamber in Kupreskic, paragraph 226, then the

16 criterion of "wholly erroneous" comes into play. It's actually one of

17 the criteria of the Appeals Chamber to define what the term "wholly

18 erroneous" actually legally means before this Court.

19 So the question I'm going to address to the Court, of course,

20 presupposes that the Chamber would at any point come to a positive answer

21 of the first two questions you did find on the first slide of Mr. Cepic's

22 presentation. Before I go into that question, Your Honours, we have to

23 be reminded that the initial case, the initial theory of the Prosecution,

24 was built on the assumption that Mr. Sredoje Lukic was involved, present,

25 during all five stages you find on the first slide of Mr. Cepic's

Page 130

1 presentation. Yet, we know now that the findings of the appeals -- of

2 the Trial Chamber which were not disputed by the Prosecution, was such

3 that it only accepted a presence of Mr. Lukic, Sredoje, at the stages 2

4 and 4, namely, the robbery, stage 2; and stage 4, the transfer to

5 Adem Omeragic's house.

6 In order to build a case on aiding and abetting on these two

7 subjects, of course it's important also to look at the time-frame between

8 those stages. And when you reconstruct the case and the Trial Chamber's

9 findings, you can deduce from these findings that at the minimum

10 five hours elapsed between the robbery and the transfer, stage 4. And

11 all five stages we're dealing with here dealt with almost a full day.

12 I come to the relevance of this observation, Your Honours, in a

13 later stage of my submissions.

14 Now, as mentioned, the Prosecution did not dispute, it did in

15 fact accept the finding of the Chamber that Sredoje Lukic allegedly was

16 only involved in stage 2 and 4. And the question therefore is just to

17 find whether aiding and abetting also to the crime of murder and inhumane

18 acts can be based on just these two stages only on the only concrete

19 tangible argument, the tangible physical element which is only here,

20 namely, that Mr. Lukic was at the crime scene, first of all; and

21 secondly, while visibly carrying arms. At the crime scene relates to the

22 stages 2 and 4 - we come to that in a minute - and the second assumption,

23 carrying visibly arms, relates only to the stage 2 because the Chamber

24 accepted that at stage 4 Mr. Lukic was not found to be there in the

25 presence of an arm, of a weapon.

Page 131

1 Now, the misrepresentation by the Chamber of these basic findings

2 were at the basis of the miscarriage of justice the Defence alleges to be

3 available here. And the Chamber, only relying on these two stages and

4 the absence of any other tangible element or evidence than the mere

5 presence while visibly carrying arms, misstated the law in accepting that

6 it amounted to aiding and abetting to the Counts 9, 10, and 11 -- 9,

7 10 -- till 12, sorry.

8 Now, let us go first to table 4, please, that's the fourth table.

9 It's on the screen, Your Honours. Let us first look at what actually was

10 concluded by the Chamber in relation to this first element, the crime

11 scene. On the left side of the table you find the original testimony of

12 the four relevant witnesses on which the findings were based by the

13 Trial Chamber. And on the right side you find the -- what I call the

14 distortion of that evidence by the Chamber, the -- what we call the

15 denaturisation of the evidence by the Chamber. And at the bottom of this

16 table you find the conclusion. Actually, none of the witnesses actually

17 saw Mr. Sredoje Lukic in the house, which was the crime scene where the

18 robbery took place. Even two of the witnesses were unable to distinguish

19 between Milan and Sredoje Lukic, which also calls into question the

20 Appeals Chamber findings in Kupreskic concerning Witness H in the

21 paragraphs 222 till 226, in which the Chamber, as I recalled, gave a

22 definition of the term "wholly erroneous."

23 And at the right side of the table you find the observation --

24 the finding of the Chamber that Mr. Lukic was merely present "at the

25 scene of the robbery," at the scene of the robbery.

Page 132

1 Notably, Judge Robinson in his dissenting opinion held merely

2 that all the evidence shows is that Sredoje Lukic was present, not

3 present at the crime or in the house where the robbery took place,

4 without giving an exact location. That's correct -- correctly

5 interpreted by Judge Robinson, because the evidence you see on this table

6 was unable to pin-point Mr. Sredoje Lukic at the real crime scene,

7 namely, the robbery inside the house. That is why criminal law doctrine

8 uses the concept of constructive presence, that is a term introduced

9 already by Blackstone years ago. You find also in the -- one of the US

10 leading textbooks of Boyce and Perkins where I quoted from page 741 and

11 the applicable case law therein. Actually, this doctrine says if the

12 precise location of a co-accused is disputed, in other words, if it's not

13 clear where that precise location was, you cannot without any other

14 tangible evidence qualify that mere presence without a precise location

15 being identified as aiding and abetting. And that is why in the -- this

16 leading textbook, reflecting the US common law on the doctrine of aiding

17 and abetting, they explained why the principle in the second degree

18 should be present at the perpetration of the felony, either

19 actually - which is here not the case because it was accepted that

20 Mr. Sredoje Lukic was outside the crime scene, namely, the house where

21 the robbery took place - or, in the alternative, constructively, by

22 rendering actual and immediate assistance to the perpetrator. And this

23 could be done, says Blackstone, with constructive presence.

24 Now, this constructive presence doctrine consists of co-operating

25 with the perpetrator and being so situated as to be able to aid him with

Page 133

1 a view known to the other "to ensure success in the accomplishment of the

2 common purpose."

3 Your Honours, to ensure success in the accomplishment of the

4 common purpose. This implies, therefore, that being at the crime scene,

5 not being the actual crime scene, can only be accepted as a type of

6 aiding and abetting if that presence, apart from the identification of

7 this precise location outside the actual crime scene, did ensure success

8 in the accomplishment of the mission by the principal perpetrator.

9 The evidence before us, Your Honours, nor the Trial Chamber's

10 findings, lends support to the assumption that Mr. Sredoje Lukic's

11 presence did ensure success in the accomplishment of the common purpose,

12 whatever this common purpose might have been. There is no evidence of a

13 common purpose, of a plan between the principal perpetrator and

14 Mr. Sredoje Lukic or other people. He was not privy to any information

15 whatsoever; it's not in the evidence.

16 Constructive presence, therefore, cannot be accepted - that is

17 the doctrine - in the event the accused cannot be conclusively linked to

18 the actual crime scene and when it's unclear whether he did, in fact,

19 ensure success in the accomplishment of the common purpose. In other

20 words, if a robbery takes place within a certain house and somebody was

21 outside that building without being established that such a common

22 purpose existed, one cannot have said to have aided and abetted the

23 robbery in question.

24 Since the Trial Chamber did not at any point conclude to a more

25 specific location of the alleged presence of Mr. Lukic in stage 2, the

Page 134

1 robbery, nothing can be inferred about the manner in which he allegedly

2 assisted or contributed, et cetera. Did he keep watch? We don't know.

3 It's not in the evidence. How was he situated towards the main

4 perpetrator? We don't know. The door might have been closed. Was he

5 within sight or hearing of the crime itself? It's not in the evidence.

6 How was he -- was he simply there? Was his presence outside the house of

7 Jusuf Memic relevant to ensure success in the accomplishment of that

8 common purpose?

9 We don't know the answer, Your Honours. We don't simply know it.

10 Any of these questions are not answered in the evidence. And therefore,

11 we cannot establish the nature, if there was any, of Sredoje Lukic's

12 contribution, let alone whether this contribution was substantial. The

13 quantitative standard for aiding and abetting. Since all these other

14 scenarios cannot be reasonably excluded, one cannot accept the artificial

15 argument of the Trial Chamber that constructive presence was the only

16 reasonable inference.

17 The former president of this Tribunal Professor Cassese in his

18 textbook "International Criminal Law," the last edition, summarises the

19 law as follows:

20 "Mere presence may only imply aiding and abetting when such

21 presence involves substantial encouragement to the crime on account of

22 the authority of the onlooker, with the consequence that the

23 perpetrator," and this is essential, Your Honours, "draws moral and

24 psychological support or legitimatising effect from that presence."

25 And Professor Cassese mentions as examples, for instance, "that

Page 135

1 person was superior to the perpetrator or had an important status in

2 society or in the military." None is the case here. Mr. Sredoje Lukic

3 was not a superior to any of the other alleged perpetrators nor had he

4 important status in the society. We come to that point later in time.

5 So here, Your Honours, you see the -- yes.

6 JUDGE GUNEY: [Interpretation] You have spoken to us at length --

7 Mr. Knoops, you have spoken to us at length about constructive presence

8 which relates to the issue we are discussing. Could you give us the

9 relevant criteria that apply to constructive presence. In what

10 circumstances could one talk about constructive presence, please?

11 MR. KNOOPS: My answer to that question, Your Honour, I come to

12 that in a minute as well, is that constructive presence can only be

13 accepted as a foundation for aiding and abetting if the person is

14 actually at the crime scene, meaning the actual crime scene, while that

15 presence is accompanied with other tangible actions or by way of the

16 authority of that person would lead to an encouragement or moral support.

17 And Your Honours know the case law of this Tribunal. The Appeals Chamber

18 have only accepted tacit approval, moral support, encouragement, in the

19 event of previous statements, oral support, meaning that somebody is

20 encouraged verbally, is encouraging the principal perpetrators verbally,

21 and other elements. And if you look at the case law of this Court,

22 although your Court doesn't use the term "constructive presence," but

23 maybe it is equivalent to having a substantial effect on the activities

24 of the principal perpetrator. Maybe it's -- it could be a equivalent,

25 you see.

Page 136

1 And this is actually maybe table 6, just to skip time and answer

2 the question of the President. In our table 6, Your Honour, you find a

3 comparison of the other most relevant precedents on aiding and abetting

4 and you see that in the other cases where aiding and abetting was

5 accepted before this Court, there was no dispute about the physical

6 presence of the defendant and the precise location. For instance,

7 Aleksovski, he was present at the precise location of the forced labour

8 of the prisoners, which prisoners had to undergo, and the location where

9 they were used as human shields. Vasiljevic, he was armed and present at

10 the Vilina Vlas hotel, escorted the seven persons to the bank, pointing a

11 gun at them, and stood right behind the seven Muslim men with his gun.

12 Also here there was no doubt about the actual presence of the defendant

13 at the actual crime scene. Furundzija, Appeals Chamber 21 July 2000,

14 commander of the Jokers, also different in terms of authority. He acted

15 and continued to interrogate particular victims. His actions went beyond

16 mere presence, but most importantly there was no dispute about these

17 individuals being there on the actual crime scene, and therefore the step

18 towards constructive presence was easy to take by the Court.

19 So the precondition for constructive presence is there is no

20 dispute as to the precise location of the defendant, the alleged

21 co-perpetrator. If that's not in the evidence, you cannot, of course,

22 come to the other criteria, such as practical assistance, moral

23 encouragement, and was the alleged support substantial.

24 Akayesu, the same. The Trial Chamber judgement, it was proven

25 that he, in his capacity as a buergermeister, also here a different

Page 137

1 personality in terms of authority, was present during numerous incidents

2 of sexual violence, et cetera. And finally in the Haradinaj Appeals

3 Chamber judgement paragraphs 347, 348, where Lahi Brahimaj, the member of

4 the KLA General Staff, also quite different in authority compared to

5 Sredoje Lukic, was present when three witnesses were beaten. He beated

6 himself Witness 6, he interrogated Witness 3, et cetera. Also here these

7 five examples from previous cases before this Court on aiding and

8 abetting clearly show that constructive presence requires an undisputed

9 location of the alleged co-perpetrator.

10 JUDGE GUNEY: [Interpretation] Thank you very much for your

11 explanation. I would like to tell you that you have 15 minutes left

12 before our 30-minute break; or more precisely, you have 12 minutes left,

13 so please do take this into account.

14 MR. KNOOPS: Thank you, Mr. President.

15 Then I move on to slide -- table number 5, please. This relates

16 to the stage 4, the transfer.

17 Trial Chamber accepted by majority, Judge Robinson dissenting,

18 that Mr. Lukic was present during and participated in the transfer. And

19 you find on table 5 the evidence which was used by the Chamber, and you

20 see here that the end conclusion is that arms were not mentioned by the

21 witnesses except for Witness VG-084, who gave conflicting evidence as to

22 who had what weapon, automatic, sniper, or sniper-automatic. These two

23 individuals here in the table were actually mixed by the witness, and

24 that's why despite this testimony of VG-084, the Court only accepted

25 presence of Mr. Lukic during the transfer, not presence with an arm.

Page 138

1 That is a huge difference. That means that the natural result of this

2 analysis is, first, Lukic was merely present during the transfer,

3 paragraph 607; he was merely placed at the scene of the crime not being

4 the actual crime scene, paragraph 605; and no other tangible or physical

5 acts were established on part of Mr. Lukic, other than in one stage, also

6 conflicting evidence, stage 2, the potential presence of an arm, which

7 arm, by the way, which gun was according to the evidence not used. In

8 the Vasiljevic case, the Court -- the Appeals Chamber accepted aiding and

9 abetting in this regard because this individual pointed at the victims

10 and stood behind the victims with a gun. This is not established in the

11 evidence in this case and this is also the reason why Judge Robinson in

12 dissenting opinion came to the same very conclusion.

13 Therefore, Your Honours, concluding, there are only two stages

14 relevant for this case and only in one stage visibly carrying arms was

15 accepted by the Chamber and these findings are not sufficient, I would

16 say far not sufficient, for the standard of proof beyond reasonable doubt

17 to accept aiding and abetting for the Counts 9 till 12.

18 Lastly, there are seven arguments why -- additional arguments why

19 even if the Chamber were to accept that Mr. Sredoje Lukic was during

20 stage 2 indeed visibly carrying arms, seven reasons why without further

21 tangible evidence, that's the additional criterion, the question

22 Your Honours asked us to address in your 6 September order has to be

23 answered with a firm no. Visibly carrying arms does not amount to aiding

24 and abetting in the circumstances of this case with this analysis in our

25 minds.

Page 139

1 First, he was not present during all the stages. I already

2 mentioned. The Prosecution assumes differently. Says in light of all

3 the events that took place.

4 Secondly, there were no physical actions entertained by the

5 defendant with that rifle, at least it was not established in evidence,

6 contrary to Vasiljevic Appeals Chamber.

7 Thirdly, and maybe we can go back to table 6, which illustrates

8 these clear differences with the other cases. Mr. Sredoje Lukic was just

9 an ordinary policeman without rank or title, not dressed in a police

10 uniform, by the way, and it was not proven, it was not in evidence, that

11 he introduced himself as a police officer. He didn't say: Hey, I'm

12 John Doe, I'm a police officer working at this police station. It's not

13 in the evidence. He didn't wear any distinct police emblems or

14 whatsoever. He had no authority, he was not superior to, these are all

15 differences with the cases you find on this table 6.

16 Four, as mentioned, no other tangible acts to amount to practical

17 assistance or moral support, other than merely being present at the

18 scene, whatever the scene might be. It's not again precise.

19 Now, Your Honours, what I find striking is that the Chamber in

20 paragraph 1.034 states that Sredoje Lukic aided and abetted the burning

21 of Adem Omeragic's house, while in 613, it is concluded that there is no

22 reliable evidence that Sredoje Lukic participated in setting Adem

23 Omeragic's house on fire or shooting at the windows of Adem Omeragic's

24 house. How can you reconcile these two paragraphs, these two findings?

25 How can somebody aid and abet the burning of a house if there's no

Page 140

1 reliable evidence that's the same person participated in setting this

2 house on fire? Because this is exactly what these two paragraphs read,

3 Your Honour. How can without any tangible evidence during stage 5,

4 criminal liability be referred.

5 The same with the strip-search and the removal, paragraphs 594

6 and 596, the Court accepts that Mr. Sredoje Lukic was not involved in

7 these activities, yet in the closing paragraph 637, it accepts that he

8 participated in the strip-search and the removal. These are clearly

9 contradictory findings of the Chamber which cannot support a conviction

10 for aiding and abetting.

11 I'll move on, sixth, the alleged acts do not amount to the

12 qualification substantial, we already addressed this point. And I have

13 to stress that there is no evidence that Mr. Lukic at any point used

14 verbal encouragement or prior statements. There was no reaction and the

15 Court in Aleksovski also already accepted that the absence of a reaction

16 on part of an alleged aider and abettor is not sufficient for -- to

17 sustain a conviction for aiding and abetting. Let alone that, this of

18 course, requires that those actions specifically are directed to assist

19 the principal perpetrator. None of this is the case.

20 Finally seven, the threshold for mens rea is not met. Three

21 clear contra-indications for the assumption that this was fulfilled.

22 First, I already mentioned that the mens rea for the murders is only

23 inferred by the Chamber from Sredoje Lukic's alleged presence during

24 transfer, stage 4. Because if the transfer has no substantive bearing on

25 this case, there is no conviction to sustain for the murders.

Page 141

1 In paragraph 1.033, the Chamber concludes that Mr. Lukic was

2 present during the transfer and thereby aided and abetted the commission

3 of the murders. Well, I don't see the evidentiary connection, the causal

4 link, between the simple presence at the transfer and the aiding and

5 abetting in the commission of the murder, because there's no evidence to

6 establish that Sredoje Lukic's alleged knowledge of the murders was in

7 evidence. And here the Appeals Chamber Vasiljevic clearly says in an

8 analogous situation where the acts are ambiguous allowing for several

9 reasonable inferences you cannot enter such a conviction.

10 The time lapse already mentioned, the second contra-indication is

11 five hours, and the third contra-indication is the contradiction already

12 mentioned between paragraph 613 and 1.034, accepting that

13 Mr. Sredoje Lukic was not involved in the shooting or the burning of

14 Adem Omeragic's house. How can the requisite mens rea for murder be

15 deduced simply for an event, the transfer that took place, more than

16 hours before the alleged murder.

17 And lastly, I think that after the Oric Trial Chamber judgements

18 which was upheld in appeal on the element of mens rea for aiding and

19 abetting, the requirements you find in our appeal brief, there are four

20 requirements, I will not repeat them. The Appeals Chamber in Haradinaj

21 came with a judgement on the 9th July 2010, paragraph 58, introducing or

22 reinforcing the double intent requirement that the aider and abettor knew

23 that his own acts assist the commission of that specific crime by the

24 principal, and, in addition, that the aider and abettor was aware of the

25 essential elements of the crime which was ultimately committed by the

Page 142

1 principal.

2 All this cannot be inferred, even not by inference, from the

3 evidence because the evidence is not saying that Mr. Sredoje Lukic was

4 privy to information and concerted plan or the true intentions of the

5 principal perpetrator or perpetrators. And after an analysis of all the

6 reasonable alternative inferences above, the reasonable trier of fact

7 could not have concluded that the -- [overlapping speakers] --

8 JUDGE GUNEY: [Overlapping speakers] --

9 MR. KNOOPS: This is my conclusion.

10 JUDGE GUNEY: [Interpretation] Thank you very much.

11 We shall now have a break for 30 minutes. The hearing is

12 adjourned.

13 --- Recess taken at 4.00 p.m.

14 --- On resuming at 4.31 p.m.

15 JUDGE GUNEY: [Interpretation] The hearing is back in session. I

16 would like to invite the representatives of the Office of the Prosecutor

17 to submit their response, and I would like to remind you that you have

18 one hour and 15 minutes.

19 MR. KREMER: Your Honours, on 14 June 1992, Sredoje Lukic

20 assisted Milan Lukic and a band of armed Serb men as they robbed,

21 humiliated, and terrorised and then killed a large group of Muslims from

22 Koritnik on Pionirska Street in Visegrad.

23 On several occasions in the second half of 1992 and the early

24 months of 1993, Sredoje Lukic severely beat Muslim prisoners in the

25 Uzamnica detention camp. After having heard the evidence and listened to

Page 143

1 the arguments put forward on his behalf, the Trial Chamber properly

2 convicted Sredoje Lukic for his crimes. Although he attempts to re-argue

3 all of the issues that were raised at trial and fairly considered by the

4 Trial Chamber, he fails to show that the Trial Chamber erred and his

5 appeal should be dismissed.

6 In responding to his arguments made today, the Prosecution will

7 present its submissions in the following order. I will first answer the

8 Appeals Chamber's second question. I will then address some of the other

9 issues Sredoje Lukic raises concerning his liability for aiding and

10 abetting the crimes at Pionirska, particularly dealing with the issue of

11 identification. And Mr. Schuster will address his crimes at Uzamnica.

12 The circumstances of the Pionirska Street case are -- have to be

13 looked at in the context of a group of Muslims from Koritnik who were

14 forced by armed Serbs to leave their town and go to Visegrad, and finally

15 being redirected to a house on Pionirska Street in the early afternoon of

16 June 14, 1992. It has to be looked at in the context that Milan Lukic,

17 Sredoje Lukic, and other armed men who were identified as Mitar

18 Vasiljevic, Milan Susnjar, came in the later afternoon and started to

19 rob, humiliate and then terrorise the victims, many of whom were women,

20 children, elderly, and some babies. They were armed. They were wearing

21 camouflage uniform. And the first act when they had an encounter with

22 the Muslims in the Memic house was to identify themselves, both

23 Milan Lukic and Sredoje Lukic, and then Milan Lukic - according to the

24 finding of the Trial Chamber - directed the Muslims to hand over their

25 valuables on pain of death.

Page 144

1 The robbery, the strip-searching, and the other humiliating

2 conduct, including the taking away of three women to be raped, during the

3 next two to three hours, all in the context of refugees fleeing,

4 expecting to be transferred, being terrorised by four armed men led by

5 Milan Lukic. At night Sredoje Lukic, Milan Lukic, and the same armed men

6 returned, armed again, and with flash-lights, flash-lights because it was

7 dark, it was 11.00 at night. The Muslims immediately were transferred

8 from the Memic house to the Omeragic house which had been prepared with a

9 fire accelerant.

10 Our position - and the Chamber found - is that Sredoje Lukic

11 actively participated in the transfer, helping, in the Chamber's words,

12 to herd the victims into the execution house. Milan Lukic set fire to

13 the house and members of the group shot at victims who attempted to

14 escape. The Chamber found and therefore didn't convict Sredoje Lukic of

15 committing the crime of murder because there was no evidence that he set

16 the house on fire or shot at the victims. But the monstrous act that

17 resulted from the actions of Milan Lukic were aided and assisted by

18 Sredoje Lukic. There was premeditation and calculation in it and

19 Milan Lukic and the group came together and carried it out, both in the

20 afternoon and in the evening.

21 The Chamber heard the evidence of the witnesses who came to

22 testify about the events, and as I said earlier this morning, carefully

23 assessed the evidence and properly applied the guiding legal principles,

24 both in terms of the consideration of the evidence and in relation to

25 identification. Sredoje Lukic's conviction for aiding and abetting is

Page 145

1 entirely reasonable and supported by the evidence.

2 Let me deal with question number 2, because the issue of whether

3 he was armed has been raised and I will address whether that finding is

4 supported by the evidence.

5 The Chamber unanimously found that Sredoje Lukic, Milan Lukic,

6 and the other men in the Lukic group were all armed with automatic

7 rifles, grenades, and bayonets, and wore camouflage uniforms, both in the

8 afternoon and at night. At night Sredoje Lukic, Milan Lukic, and the

9 others also carried military flash-lights. Sredoje Lukic was armed

10 during the robbery in the afternoon - I refer to paragraphs 343, 583,

11 593, 637. VG-38 mentioned that Sredoje Lukic had an automatic weapon.

12 VG-18 referred to an automatic rifle.

13 Sredoje Lukic was armed at night when he assisted in herding the

14 victims from the Memic house to the Omeragic house. It's paragraph 604,

15 and I mention that there is not a word in the submissions of my friends

16 opposite about paragraph 604 in their submissions this afternoon,

17 paragraph 607 as well. VG-38 testified that he saw Sredoje Lukic with an

18 automatic weapon at the time of the transfer - this is paragraph

19 419 - citing transcript 984. On cross-examination by Mr. Cepic, VG-38

20 confirmed that in addition to their automatic weapons, Sredoje Lukic and

21 the other men had grenades and bayonets. That's at transcript page 984

22 which is footnoted in trial judgement 419.

23 VG-84 also confirmed that the four men who returned to the Memic

24 house to conduct the transfer included Sredoje Lukic and that they were

25 armed. That's at trial judgement 604.

Page 146

1 The point I want to make is that the distinction that the

2 appellant makes in this particular case about the confusion between Milan

3 and Sredoje Lukic by witnesses 84 and 38 does not take away from the fact

4 that Milan Lukic and Sredoje Lukic were armed. It does not take away

5 from the fact that they were present at the various locations. For

6 example, when Milan Lukic threatened - and there was an issue as to who

7 threatened the victims prior to the robbery - ultimately the decision

8 taken by the Trial Chamber that it was Milan Lukic, but the evidence is

9 that Sredoje Lukic was also there. He and Milan Lukic both identified

10 themselves to the victims. Milan Lukic then told them to give up their

11 valuables, and at some point Sredoje Lukic, who at that point may have

12 been identified as Milan Lukic, went outside.

13 But the Chamber's finding based on all of the evidence as it

14 understood it and as it accepted it, was that Milan Lukic ordered the

15 Muslims to give up their belongings, their valuables, and he was armed

16 and Sredoje was armed in the room when that threat was made. That

17 presence beside Milan Lukic when the threat is -- beside or in the room

18 with Milan Lukic at the house when the threat is made is sufficient.

19 Now, the finding isn't specific, the legal finding, that Your Honours

20 have asked us to deal with isn't as specific as it perhaps could have

21 been. But the previous findings, the previous factual findings,

22 bear-out, particularly when the references to the transcript pages are

23 examined, bear-out that that is, in fact, the case.

24 What Mr. Knoops would have you find is that unless there is a

25 witness that specifically says: Mr. Sredoje Lukic pointed his gun and

Page 147

1 therefore the robbery occurred in order to justify a conviction for

2 aiding and abetting is clearly wrong. On the facts of this case, four

3 armed men in camouflage uniform come to an already distressed group of

4 individuals and ask them on their arrival, within seconds -- within a

5 short time of their arrival: Give up your valuables. And then other

6 crimes are committed during the next two to three hours.

7 Also, when they come back, the four of them come back together,

8 again armed with grenades, with bayonets, and with rifles, and with

9 flash-lights.

10 And the inference that they all came back with weapons is easy to

11 make even without the evidence because after the transfer of the victims

12 from the Memic house to the Omeragic house, they were shooting. They

13 were shooting at the people who were trying to escape. And followed by

14 shooting of the people who had escaped in an effort to hunt them down.

15 So the armed group was working together. There was no other purpose when

16 they came back, because they did nothing else other than move them to the

17 house and set it on fire, that is possible.

18 And Sredoje Lukic being among the group assisted the group just

19 by his presence but he did more than just be present. Mr. Knoops would

20 have you believe this is a case of an innocent by-stander. He just

21 happens to come along with a group of three other soldiers and stand

22 around. Well, that's not so and the evidence shows that it's not so.

23 Because the finding of the Trial Chamber is that he participated in the

24 transfer, not that he was present during the transfer. And his presence

25 and his participation is what raised his contribution to aiding and

Page 148

1 abetting. His armed presence during the day, as I've just pointed out,

2 just given the fact that he was in the room when they were asked to give

3 up their valuables, when the robbery began, whether he remained in the

4 room or not for the duration of the robbery, is sufficient for aiding and

5 abetting.

6 The assistance is substantial because four armed men were -- at

7 that point he is -- the evidence is that he and Milan Lukic are in the

8 room at the house, and therefore he substantially assisted or contributed

9 to the crime.

10 For the murders, it's important to stress that the Chamber found

11 Sredoje Lukic's acts and conduct during the incident as a whole

12 contributed to the commission of the murder. Our position is that the

13 Trial Chamber was correct to consider the totality of Sredoje Lukic's

14 conduct that day because Milan Lukic and the group committed a series of

15 crimes against the same Muslim victims, they robbed them, they abused

16 them physically and mentally, they raped some of them, and ultimately

17 they killed the vast majority of them.

18 The Trial Chamber had considerable discretion in determining

19 whether Sredoje Lukic's conduct that day in its totality amounted to

20 aiding and abetting. The Appeals Chamber has confirmed repeatedly this

21 discretionary standard. I refer you to the Brdjanin appeals judgement at

22 paragraph 276; and the Nahimana appeal judgement paragraph 512. The

23 Trial Chamber in this case properly exercised its discretion.

24 Your Honours, Sredoje Lukic actively assisted in the crimes.

25 Because as a member of this group that was committing only crimes, it

Page 149

1 wasn't there for any other reason, he came with Milan Lukic, he was in

2 the house, he left the house, he left with the group at some point, and

3 then they came back. His involvement was never innocent. His

4 involvement was always criminal.

5 And when Milan Lukic and Sredoje Lukic and the other men arrived

6 on Pionirska Street in the afternoon, their criminal purpose quickly

7 revealed itself. As I say, there were the self introductions.

8 Milan Lukic threatening the victims while he and Sredoje were in the room

9 fully armed. He also threatened to sever fingers and cut the throat and

10 put a bullet in the head of anyone who withheld anything. These aren't

11 friendly words; they're criminal words. And the criminal activity of

12 this group is illustrated and must be taken into account in assessing the

13 conduct of Sredoje Lukic.

14 Sredoje Lukic was in the house while they were robbed. He was

15 in -- he was at the house while the members of the armed group

16 strip-searched the women and children. He was at the house when

17 Milan Lukic removed the three women, and when the women returned, they

18 said they had been raped and those three women all perished in the fire.

19 His armed or visibly armed presence, as the Trial Chamber

20 described it, as a member of the Lukic group, both inside and outside the

21 Memic house, shows that the victims had no choice but to comply. He had

22 an impact on whether or not the victims would give up their valuables,

23 would submit themselves to a strip-search, or would go from the Memic

24 house to the Omeragic house. And when combined with the threats that

25 were being issued by Milan Lukic, on departing he told the Muslims not to

Page 150

1 leave on pain of death, indicating that they were going for food and

2 drink. And they left, Milan Lukic, Sredoje Lukic, and the others. And

3 these extremely vulnerable and frightened Muslims, stripped of their last

4 remaining valuables, which Milan Lukic put in a bag and took with him,

5 remained in the house at the mercy of their attackers should they return.

6 Later that night Milan Lukic returned with Sredoje Lukic and the

7 others, just as he had promised. They were armed again, as I say, with

8 automatic rifles, grenades, and bayonets. And they also brought

9 flash-lights. And the flash-light reference is paragraph 354 trial

10 transcript -- transcript 1408, and P355, transcript 1410. And other

11 witnesses describe flash-lights and how they were used in the movement of

12 the people from one house to the other.

13 The Muslims were ordered to move to the nearby Omeragic house,

14 where they would be killed. Now, as the victims left the house,

15 Milan Lukic, Mitar Vasiljevic, and another soldier told them to leave

16 their shoes behind. That's at trial judgement 359. Without their shoes,

17 it would be much more difficult for them to escape from their

18 executioners. The Muslims complied.

19 Now, the flash-lights provided the light or part of the light

20 that was used during the transfer of the Muslims in part to ensure that

21 no one ran away. They were told to stay on the road. And the men formed

22 an armed corridor between the Memic house and the Omeragic house and,

23 according to the words or descriptions used by the Trial Chamber, "herded

24 the Koritnik group to the Omeragic house," trial judgement 605, referring

25 to trial judgement 362. And I refer you specifically to footnote 1250

Page 151

1 and also suggest looking at trial judgement 601.

2 During the transfer, Sredoje Lukic and other members of the armed

3 group moved around the path between the houses, again ensuring that no

4 one escaped. That's at trial judgement 601.

5 The Omeragic house had been prepared for the victims. Its floor

6 was soaked with a fire accelerant with a pungent smell, and I talked

7 earlier today about VG-13's description that the air in the room was

8 suffocating, causing people to choke, trial judgement 1032.

9 Sredoje Lukic was present as a member of the armed corridor and

10 the group assisting in the transfer of the people, and although there's

11 no direct evidence that he was present when the house was ignited, which

12 Mr. Knoops would have you require before he can be convicted of aiding

13 and abetting, his presence is obvious. There are four members of the

14 group who came to commit a crime. They all participated in moving the

15 people to the Omeragic house. The only reasonable inference possible is

16 that he was there when it was set on fire and he was there when the

17 shooting took place. Now, there's no evidence that he shot and there's

18 no evidence that he lit a match and threw it in. But that's not what's

19 required for aiding and abetting. That's what's required for committing,

20 and that's why Milan Lukic was convicted of committing and Sredoje Lukic

21 was only convicted of aiding and abetting.

22 Witnesses who managed to escape, including VG-18, described how

23 the killers pursued them with their flash-lights to illuminate the scene.

24 That's in trial judgement 377. Why was Sredoje Lukic's assistance during

25 the day and evening a substantial contribution to the murder of the

Page 152

1 Muslims in the house? I will give you three reasons. There are probably

2 many more.

3 One, he cowed the victims into submission through his armed

4 presence and his reputation as a local policeman; two, he reassured the

5 fellow perpetrators by his participating alongside them in the sustained

6 and brutal attack; and three, and perhaps most importantly, he actively

7 helped to herd the large group of victims into the pre-prepared execution

8 house where they were burned alive.

9 The Chamber was correct in finding that by his acts and conduct

10 throughout the entirety of the events Sredoje Lukic made a substantial

11 contribution to the crime of murder for the crimes for which he was

12 convicted. And even if you forget about what happened in the afternoon,

13 his conduct at night is more than sufficient to justify a conviction for

14 aiding and abetting.

15 And Judge Robinson in his dissent I would say, with respect, was

16 wrong to require more. Shooting victims and throwing explosives into the

17 house equals committing, not aiding and abetting. The evidence was more

18 than ample to show that Sredoje Lukic aided and abetted Milan Lukic's

19 crime. He was with Milan Lukic from the beginning and through the end of

20 this series of crimes that started in the early afternoon of June 14th,

21 1992.

22 Now, before I move on to some of the other issues that Mr. Lukic

23 has raised on appeal, this is perhaps an appropriate time to address the

24 issue of mens rea.

25 I want to start by pointing out or emphasising again that what

Page 153

1 Mr. Knoops did not do in his discussion of the mens rea is talk about his

2 participation - he ignored it - his participation in the transfer. His

3 presentation is based on the misreading of the evidence that

4 Sredoje Lukic was there, unarmed, standing around, watching. And a fair

5 reading of the evidence and certainly how the Trial Chamber interpreted

6 it was that he did much more. And I won't repeat myself about -- on

7 this.

8 There are two findings that the Chamber makes regarding mens rea

9 and one relates to the cruel treatment and the infliction of inhumane

10 acts on the victims of the robbery, and in his reply brief at paragraphs

11 66 and 67, Sredoje Lukic suggests that the Chamber's findings are not

12 well founded on the evidence. With respect, there was a series of crimes

13 organised and committed by a small group. Sredoje Lukic knew the crimes

14 against them were an assault on their human dignity or were an assault on

15 the human dignity of the victims and would cause mental anguish as a

16 result of their loss of their remaining valuables. He was there when

17 Milan Lukic made the demand or the threat that they deliver up their

18 valuables. He had the necessary mens rea for those crimes.

19 Turning to murder. The Chamber also found that Sredoje Lukic

20 knew that the persons whom he had helped place into and who had been

21 locked into Adem Omeragic's house would be killed as a result of the fire

22 when the house was set ablaze and that he also knew that his acts and

23 conduct contributed to the commission of murder.

24 Again, the Chamber took into account the chain of events that

25 day. Sredoje Lukic argues that all of this could be reasonably inferred

Page 154

1 is that he assisted the people for their allegedly planned transfer of

2 the day. This is in his appeal brief at paragraph 179. We didn't hear

3 anything about that today, but it shows how cynical Sredoje Lukic is

4 about his presence. There was no evidence that there was any step taken

5 by the Milan Lukic group in the afternoon or the evening to assist in

6 these people's transfer. On the contrary, all of the evidence points to

7 the fact that they were there to persecute and to commit serious crimes

8 against the victims.

9 In fact, the Trial Chamber made an explicit finding that the

10 alleged transfer the next day was merely a ruse to get the people to a

11 single point. And the Chamber made extensive findings on the

12 discriminatory atmosphere, at paragraph, in the judgement, 1027 and

13 following. Sredoje Lukic knew that the detention of these people was

14 illegal and nothing could justify the robbery and the humiliation of the

15 women and children. There was no purpose in locking them in a room with

16 carpets covered with a sticky, pungent substance. And there was -- and

17 which functioned as a fire accelerant, by the way, other than to kill

18 them. And his participation in the movements, in the herding of the

19 people to the house, would have given him enough information about

20 Milan Lukic's intention when the door was locked behind them, the smell,

21 and then ultimately when the flame was started.

22 Mr. Knoops says he can't aid and abet because he didn't

23 contribute to lighting the match or he didn't contribute to shooting at

24 the victims, but that's not the test. The test is did he contribute to

25 murder -- did he know that murder would result? And the Trial Chamber

Page 155

1 reasonably found, based on all of the circumstances, what was happening

2 to the victims, the smell of the house, and what had happened earlier in

3 the day, this was a criminal act that could only result in the murder of

4 the victims.

5 Another factor is the organised manner in which these crimes were

6 taking place in -- particularly the murder. The murder was at night.

7 Murder maybe could have taken place in the afternoon, but the murder was

8 at night, so they needed flash-lights and other light to ensure that they

9 could do what they intended. Flash-lights were only used for one

10 purpose: To move the people from the Memic house to the Omeragic house

11 and to light up the people who were escaping or the windows in order to

12 shoot, to ensure that everyone was killed. He arrived with them with a

13 flash-light, he arrived with them armed and he participated, as he was

14 required to do, to ensure that the operation was successful.

15 His acts, I would submit, justify the Chamber's finding that

16 Sredoje Lukic knew that his intended -- knew of the intended fate of the

17 Muslims and that Milan Lukic was intending to kill them. On the basis of

18 this evidence I would submit that the Chamber was fully entitled to find

19 that Sredoje Lukic knew what the fate of the victims would be in the

20 afternoon and in the evening and that his participation would facilitate

21 their demise. He had the necessary mens rea for aiding and abetting.

22 Now in his submissions this afternoon, Sredoje Lukic has yet

23 again repeated arguments which call, I would submit, impermissibly for a

24 de novo review of the evidence. He had raised all of these arguments at

25 trial. He has again raised these arguments in his appeal brief and they

Page 156

1 were answered in the Prosecution response brief. His submissions in his

2 appeal brief and his submissions in court add nothing to these points and

3 provide no further assistance, I would submit, to the Appeals Chamber in

4 its deliberations.

5 I will give you three brief examples. First, with regard to the

6 alleged inconsistencies of VG-38's evidence, Sredoje Lukic raised these

7 arguments at trial, paragraphs 62 to 69, 80 to 81 of his closing brief.

8 It was considered in the judgement at paragraphs 417, 582, 585, and 601.

9 He repeats the same arguments at paragraphs 49, 81 to 84, 97 to 101 of

10 his appeal brief. And they were answered at paragraphs 40 to 41, 57, 62

11 to 65 of the Prosecution response brief.

12 The same applies for the alleged inconsistencies in the evidence

13 of VG-84. He raised them, paragraphs 113 to 121, and 126 to 131 of his

14 closing brief. It was considered in the judgement, paragraphs 403 to

15 407, 590, and 604. He repeats this argument at paragraphs 45 to 48 of

16 his appeal brief, 72 to 78, and 102 to 106, and the responses of the

17 Prosecution are found in paragraphs 35 to 39, and 66 to 67.

18 With regard to the alleged inconsistencies of Huso Kurspahic's

19 evidence, he raised it in paragraphs 179 to 183 of his closing brief.

20 The Chamber considered it in its judgement, paragraphs 387 and 591. He

21 repeats the same argument at paragraphs 53 to 57, and it's answered in

22 paragraphs 42 to 44, and 68.

23 The point I want to make is that much of the arguments being

24 advanced to suggest there are identification issues, that -- are really

25 asking the Chamber to review in detail the evidence that was led at trial

Page 157

1 and to replace the discretion of the Trial Chamber with your discretion,

2 to put yourself in the uncomfortable position of not having seen the

3 witnesses, not having heard the witnesses, not having heard all of the

4 evidence and put the evidence into its proper context, a job that the

5 Trial Chamber did well and the Appeals Chamber should not embark on

6 unless it is absolutely necessary. And in our submission, it is not

7 necessary in this case.

8 I just want to deal with a couple of issues on identification. I

9 just want to check how my time is going.

10 I want to highlight, first of all, that the Chamber was

11 unanimous in finding that Sredoje Lukic was present at Pionirska Street

12 during the day and at night as a member of the Lukic group and based its

13 findings on a variety of mutually reinforcing evidence. And the evidence

14 isn't as weak as Mr. Knoops would suggest, or Mr. Cepic as well, when one

15 looks at it as a whole instead of under a high-resolution microscope.

16 Sredoje Lukic was identified by several witnesses, including

17 VG-38, VG-18, VG-84, and as we've heard, Hasib Kurspahic. After hearing

18 the evidence and the evidence of Hasib Kurspahic through his son, the

19 Trial Chamber found each of these witnesses' accounts to be credible and

20 reliable.

21 VG-18 and VG-84 heard Milan Lukic and Sredoje Lukic introduce

22 themselves after they entered the Memic house, just before they robbed

23 the Muslim victims. Sredoje Lukic challenges this by repeating his trial

24 argument that VG-18 and VG-84 gave differing accounts on hearing this

25 introduction. The Chamber, as I've alluded to already, noted the

Page 158

1 differences at paragraphs 588 to 590 of its judgement and limited its

2 findings to VG-18 and VG-84's consistent evidence, that both heard

3 Sredoje Lukic introduce himself. And I would submit that since both

4 witnesses said they were together when they heard this introduction, the

5 Chamber was entitled to make this finding. It was not required - as the

6 appellant would suggest - to determine exactly where in the room they

7 were standing.

8 He also argues that VG-13 and VG-38 were with VG-18 and VG-84 but

9 did not hear the same introduction. That's in his appeal brief at

10 paragraph 40. This argument rests on a false premise. Because VG-18 did

11 not say that VG-13 and VG-38 were right beside her when she heard

12 Sredoje Lukic introduce himself. Instead, she simply acknowledged that

13 VG-13 and VG-38 were in the same room at the Memic house at the time.

14 Simply being in the same room does not mean that the witnesses would have

15 seen and heard exactly the same things, especially when it is a crowded

16 room.

17 Both witnesses identified Milan and Sredoje Lukic as being

18 present. That fact eliminates the possibility that only one of the

19 accused was present at the Pionirska Street crimes. And that's how the

20 Chamber resolved any difficulty with identification where the person

21 said: I heard both introduce themselves. I saw both of them. And so

22 on, where there was a -- they limit their findings to the presence but

23 not taking into account the evidence of the acts and conduct of the

24 accused but their presence was noted.

25 Hasib Kurspahic personally knew Milan [sic] Lukic. He identified

Page 159

1 him as one of the perpetrators at Pionirska Street. Hasib had told his

2 son Huso five or six times that Sredoje Lukic was one of the

3 perpetrators. That's at transcript page 928. Hasib Kurspahic was on

4 good terms with Sredoje Lukic prior to the fire which supports the

5 Chamber's reliance on his recognition of Sredoje Lukic at Pionirska

6 Street.

7 The Chamber's cautious and reasonable findings in relation to the

8 identification witnesses are found at the -- in the judgement at

9 paragraphs 586 to 591, and subsequently.

10 Moreover, it is significant that as a local policeman,

11 Sredoje Lukic was well-known by at least ten of the victims who died.

12 Those victims identified him to the survivors, that's the evidence of

13 VG-38, it's in the evidence of VG-18 and VG-84, during the events before

14 they were murdered. As VG-84 explained on cross-examination when asked

15 how he knew it was Sredoje Lukic, he said:

16 "... Two men came into the house, Milan Lukic and Sredoje Lukic.

17 There was one elderly man and all of my neighbours and friends who were

18 in the house knew him, and 20 to 25 per cent of them knew Sredoje Lukic

19 who was allegedly a policeman. I was a child at the time, so I didn't

20 know him [...]

21 "Q. [...] So you say that 20 to 25 per cent of your neighbours

22 who were in the Memic house with you knew Sredoje Lukic?

23 "A. Yes. Both of them. Both Sredoje and Milan. I'm telling

24 you how it was roughly. I don't know the details. I was just under 14.

25 I wasn't checking who knew them, but between 20 to 25 per cent of those

Page 160

1 who were in the house knew the two men who came into the room -- or,

2 rather, the three men, because the third one remained in the corridor.

3 "Q. Why would you have believed your neighbours that this was in

4 fact Sredoje Lukic?

5 "A. Well, why wouldn't they believe us?" I think there's a

6 mistake there. "This was not a town of a million. Some 10.000 people

7 inhabited it. It was a small town." I think he's speaking of Visegrad.

8 VG-84's common sense explanation was credited by the Chamber at

9 paragraph 590.

10 Sredoje Lukic also disputes the Chamber's findings that victims

11 who perished at Pionirska Street identified Sredoje Lukic to the

12 witnesses who survived. Again, his argument rests on a false premise.

13 In fact, the witnesses that he cites in support of his argument all

14 stated that they heard from other victims that Sredoje Lukic was present.

15 For example, Sredoje Lukic asserts at paragraph 12 of his reply

16 brief that VG-101 never mentioned Sredoje Lukic. In fact, VG-101 said

17 she was told by others that Sredoje Lukic was at the Memic house along

18 with Milan Lukic. Yet Sredoje Lukic did not cross-examine her on the

19 statement that she had given in Exhibit 1D36 at page 4.

20 Sredoje Lukic also argues that VG-101 said that there was never

21 any discussion about the identity of the four perpetrators. In

22 fact - and that's at his reply brief at paragraph 13 - in fact, when she

23 was asked about who the perpetrators were she answered:

24 "Yes. A man was saying -- they were all saying that they knew

25 them. We all knew who those men were and what they were."

Page 161

1 The Chamber validly took account that the victims knew

2 Sredoje Lukic and identified him to the survivors who came to testify.

3 Now, what is the evidence of Sredoje Lukic during the transfer?

4 The Chamber was particularly careful in assessing the evidence showing

5 that Sredoje Lukic was present and participating in the transfer of the

6 victims to the Omeragic house. Take the Trial Chamber's treatment of

7 VG-38's evidence, for example. VG-38 described how Sredoje and Milan,

8 along with Mitar Vasiljevic and Milan Susnjar, carried out the transfer.

9 The perpetrators moved about the path, which was between 20 to 30 metres,

10 during the transfer. This is at judgement paragraph 601.

11 Although the Chamber found that VG-38 did not know Milan and

12 Sredoje Lukic prior to 14 June 1992, other members of the Koritnik group

13 who did know the Lukics had identified both of them to VG-13 [sic] during

14 the afternoon's events at the Memic house when the lighting conditions

15 were better. Furthermore, VG-38 knew Mitar Vasiljevic and Milan Susnjar

16 by sight, and so was able to distinguish them from Milan Lukic and

17 Sredoje Lukic, as set out in the Prosecution response brief. The Chamber

18 took a cautious approach, not relying on VG-38 with respect to

19 Milan Lukic and Sredoje Lukic's precise actions, but found that VG-38's

20 evidence established that both Lukics were present during the transfer.

21 VG-38's account that Sredoje Lukic's involvement in the transfer

22 is consistent with and confirmed by the accounts of Hasib Kurspahic and

23 VG-84.

24 Hasib Kurspahic, as I've said previously, knew Sredoje Lukic

25 well. He recognised him as one of the men carrying out the transfer at

Page 162

1 night. That's at judgement paragraph 605. He explained to his son Huso

2 how the Lukic group stood in a row between the houses and escorted the

3 Koritnik group to the Omeragic house, judgement paragraph 362. VG-84

4 also stated that Sredoje and Milan Lukic returned to the Memic house in

5 the evening and were armed and present during the transfer, judgement

6 paragraph 604. And further direct evidence supporting the Chamber's

7 finding is set out in the Prosecution brief at paragraph 23 and in

8 paragraphs 597 to 607 of the judgement. There is a lot of evidence that

9 was considered and having heard the evidence and heard the witnesses, the

10 Chamber was entitled to rely on their mutually reinforcing accounts.

11 Sredoje Lukic was present, armed, and participated in the transfer of the

12 victims that resulted in the crimes, crime of murder, at

13 Pionirska Street. And this fact was found by the majority.

14 The one thing I want to emphasise is Sredoje Lukic's presence

15 during the period of the crimes in Pionirska Street was found unanimously

16 by the Chamber. Judge Robinson only dissented on whether his conduct

17 amounted to a substantial contribution for aiding and abetting, i.e., did

18 he participate in the transfer.

19 Sredoje Lukic also challenges -- or Sredoje Lukic's challenges to

20 identification of Sredoje Lukic during the transfer are further answered

21 by the contextual evidence, which supports the Chamber's finding of his

22 participation. VG-84 said:

23 "There was light in front of the house. They had flash-lights.

24 Everything had been prepared in advance." Speaking of the Omeragic

25 house, that's at transcript page 1285. At the Omeragic house, the floor

Page 163

1 had been soaked with fire accelerant which fuelled the flames when

2 Milan Lukic set the fire. That's at paragraphs 559 to 560. The group

3 was armed and organised and prepared.

4 In this context, there is no innocent explanation for

5 Sredoje Lukic's presence at Pionirska Street. Although he wasn't wearing

6 a uniform, Sredoje Lukic had been a policeman and he may have been a

7 policeman at the time, paragraph 1090. Also, Sredoje Lukic had been a

8 policeman in Visegrad before the war and continued to serve in this

9 capacity during the war, is the finding. He should have been preventing

10 crimes. Instead, he chose to assist the crimes of Milan Lukic, his

11 cousin, and others to transfer the people to a pre-prepared place for

12 their execution.

13 Sredoje Lukic's arguments today and in his brief do not

14 demonstrate that the Chamber breached it discretion in finding him guilty

15 of the crimes and they did -- made no mistake in finding that the

16 deceased witnesses who knew Sredoje Lukic as a policeman or as a

17 neighbour told the surviving witnesses of his identity. The Chamber

18 heard the accounts of the survivors who escaped, carefully assessed their

19 evidence, and properly applied the guiding legal principles, both in

20 relation to identification and in determining that Sredoje Lukic

21 knowingly made a substantial contribution to the horrific crimes

22 committed against the Muslim victims at Pionirska Street. The Chamber's

23 conviction of Sredoje Lukic for aiding and abetting is entirely

24 reasonable and supported by the evidence and, in our submission, his

25 appeal or appeals on these conviction should be dismissed.

Page 164

1 Subject to any questions you might have, I will turn the podium

2 over to Mr. Schuster.

3 MR. SCHUSTER: Your Honours, I will make -- I will be making the

4 Prosecution's submission in relation to Uzamnica. I will respond to the

5 points raised by Mr. Cepic early on and I will also answer your questions

6 that you raised at the beginning of this hearing in the course of my

7 presentation.

8 Your Honours, the Chamber correctly found that Sredoje Lukic came

9 to the Uzamnica camp on a number of occasions and savagely assaulted the

10 Muslim prisoners that were kept there under deplorable living conditions.

11 Sredoje would beat and kick them with his fists, with a rifle, with

12 wooden stakes, and one time with a long pole. Three witnesses identified

13 Sredoje Lukic as their assailant. Two of them, Dervisevic and Kustura,

14 knew Sredoje Lukic from before the war because he was a police officer.

15 One of them, Dervisevic, would even testify that he saw him at the local

16 bar in Visegrad. The reference is transcript 1999.

17 The third witness, Berberovic, learned from the others at the

18 camp of Sredoje Lukic's identity as one of the men who would come and

19 beat him. In this regard, Your Honours, I refer you again to para 196 of

20 the Rukundo appeal judgement, where the Appeal Chamber held that a

21 Chamber can rely on the evidence of witnesses who learned of the identity

22 of their tormentor through other persons. While there were some

23 inconsistencies in the witness's evidence, which can be expected given

24 the circumstances of their detention, all of these were taken into

25 account by the Trial Chamber.

Page 165

1 What Sredoje Lukic attempts to do is to artificially isolate the

2 evidence, evidence that the Chamber considered as a whole. By doing

3 this, Sredoje Lukic also just repeats his trial submissions. They were

4 all taken into account by the Trial Chamber, but he doesn't show any

5 error. For the details on his submissions, I point Your Honours to our

6 brief. I only refer to three points which Sredoje Lukic's Defence

7 mentioned this morning and the questions that Your Honours have raised.

8 The issue of Dervisevic's and Kustura's prior statements was

9 explicitly discussed by the Chamber. Kustura's prior statement of

10 November 1994 is a three-page document in which Kustura speaks about

11 events spanning two years. Now, he didn't mention Sredoje Lukic, but

12 again it's a three-page document talking about three years of events. On

13 the contrary, he gave about a hundred pages of viva voce testimony before

14 the Trial Chamber and he confirmed repeatedly to the Trial Chamber that

15 it was Sredoje Lukic as one of the people beating him. Again, I've

16 already mentioned this, Kustura knew him before the war as a policeman.

17 The Chamber also discussed Kustura's explanation why he had not

18 mentioned Sredoje Lukic earlier. It expressly acknowledged at 834 of the

19 trial judgement that he did not explain this omission to its

20 satisfaction, but it reasonably considered Kustura's repeated oral

21 testimony tested under cross-examination that Sredoje Lukic was always

22 coming with Milan Lukic as corroboration of the other witnesses'

23 evidence. Likewise, the Chamber noted in paragraph 1--813 of the judgement

24 that Dervisevic did not mention Sredoje Lukic in some of his prior

25 statements, but it also recalled that he confirmed repeatedly in court

Page 166

1 that he was certain that he was beaten by him. That's 813 of the

2 judgement.

3 As I've mentioned before, Dervisevic knew Sredoje Lukic before

4 the war as a policeman. In addition, in a statement taken in 2008 he did

5 confirm that he was beaten by Sredoje Lukic. That's P111.

6 Your Honours, the Appeals Chamber has confirmed many times that

7 it is up to the trier of fact to resolve differences between a witness

8 testimony and prior statements. I refer Your Honour in this regard to

9 the Renzaho appeal judgement, where the Appeals Chamber recalled that the

10 Trial Chamber has the discretion to accept a witness's evidence

11 notwithstanding inconsistencies between the evidence and his prior

12 statements.

13 By doing that, the Trial Chamber who in this case saw all those

14 witnesses in court was best placed to assess their evidence and the

15 Chamber has seen the three witnesses who confirmed that Sredoje Lukic was

16 at Uzamnica camp beating people.

17 At this point, I'd briefly interject about the photo-board issues

18 that Your Honours have raised earlier. As matters stand, it is unclear

19 whether the photo-boards shown to Witness Berberovic contains

20 Sredoje Lukic's photo. The Chamber found that it was most probably not

21 in the photo spread. That's at 838 of the judgement. It is also unclear

22 whatever happened to the photo-boards. While this is unfortunate, this

23 whole issue was discussed at trial and the Trial Chamber took explicit

24 notice of that. 805 of the judgement. And it noted that in this

25 situation it could not assess something that was not in evidence before

Page 167

1 it.

2 This fact can also not be utilised at this stage, on appeal, to

3 undermine the Chamber's findings. But in any case, it is hardly

4 exculpatory. The Chamber mainly relied on Dervisevic and Kustura when

5 finding that Sredoje Lukic was at the camp and to Berberovic in

6 corroboration.

7 Coming to the third point, one witness, VG-25, the 92 quater

8 witness never saw Sredoje Lukic at the camp. That's his statement. But

9 the Chamber addressed the statement and it found that it was easily

10 explained by the different periods of detention among the various

11 detainees testifying before the Trial Chamber. VG-25 only became an

12 inmate in the camp at the end of November 1992, but Witness Berberovic

13 testified that he saw Sredoje Lukic four or five times after his arrest

14 in August 1992, a long time before November --

15 THE INTERPRETER: Would counsel please kindly slow down.

16 MR. SCHUSTER: While Dervisevic stated that he was beaten by

17 Sredoje Lukic in July or August, the later months, or at the end of 1993.

18 Kustura also testified that one of the beatings took place at the end of

19 October, again, before November when VG-25 became an inmate. And the

20 Chamber considered precisely this, as it was required to do, at

21 paragraph 834.

22 This also ties into your other question. Your Honours asked

23 whether the question of Milan Lukic's detention raised in his sixth

24 ground of appeal has any impact on the appeal of Sredoje Lukic. The

25 answer is no. Milan Lukic raised a question about his whereabouts in

Page 168

1 1993. There's evidence that he was indeed in prison for parts of that

2 year after late March; however, this does not affect the reliability of

3 the witnesses. The Chamber was aware of the fact that the detainees did

4 not have calendars or writing material to write on and they could not

5 precisely pin-point the date and time of each and every beating and

6 sighting. That is at 830 of the trial judgement.

7 In addition, one witness, Dervisevic, testified that Lukic was

8 away at some point during his detention because he was held in custody.

9 Again this aligns with Milan Lukic's alleged imprisonment or indeed

10 imprisonment in 1993.

11 For this reason, the Chamber correctly found that minor

12 inconsistencies in the witnesses' evidence on when Milan Lukic was

13 present were harmless and did not distract from their convincing

14 testimony.

15 Your Honours, this issue has also been litigated before you in

16 Rule 115 proceedings in relation to Milan Lukic and we submit that the

17 same considerations there apply to the witnesses' evidence in relation

18 to Sredoje Lukic's whereabouts.

19 Your Honours, the Chamber addressed all the evidence raised by

20 Sredoje Lukic at trial. It is expected that there will be certain

21 discrepancies between eye-witness testimonies, and the Appeals Chamber

22 has accepted that a Trial Chamber can reasonably accept parts of a

23 witness testimony while rejecting others. That's Kupreskic Appeals

24 Chamber paragraph 33.

25 The Chamber did its duty to carefully review the evidence. In

Page 169

1 light of this assessment, Sredoje Lukic's challenges to his presence at

2 Uzamnica and the beatings he committed there should be rejected.

3 Your Honours, Sredoje Lukic was one of the perpetrators at

4 Uzamnica. He was there at least several times brutally assaulting

5 helpless victims. His challenges to his convictions should be dismissed.

6 Your Honours, this concludes the Prosecution's appeal unless you

7 have any questions I would be happy to answer.

8 JUDGE GUNEY: [Interpretation] Thank you very much.

9 I would like to invite the counsel of Sredoje Lukic to present

10 its case in reply, and I shall remind you that you have 30 minutes for

11 doing so.

12 MR. CEPIC: [Interpretation] Thank you, Your Honours. I will try

13 to be expeditious and Mr. Knoops will continue after me.

14 First of all, I want to emphasise that the Prosecution responded

15 to our appeal as if they were speaking before the Trial Chamber in final

16 arguments, not before the Appeals Chamber. They also presented certain

17 assumptions and arguments that the Trial Chamber did not accept, whereas

18 we invoked the relevant paragraphs in the judgement and other evidence.

19 My learned friend Mr. Schuster in his arguments considering the

20 Uzamnica camp are the first thing I wanted to be addressed falling under

21 ground 6 of Sredoje Lukic's appeal.

22 We firmly believe that there is a good substantiation -- [In

23 English] Just clarification for the transcript regarding to the

24 ground 6(E) and ground 6(F) of Milan Lukic's appeal, we stay on position

25 that it has a strong impact regarding to our position because in the

Page 170

1 light of testimony of Adem Berberovic and Islam Kustura before the

2 Trial Chamber that Sredoje Lukic and Milan Lukic came together to

3 Uzamnica camp, it is not possible if Milan Lukic was at that time in

4 detention unit in Belgrade, 400 kilometres away from Visegrad and camp

5 Uzamnica. So this is the potential impact of Milan Lukic's appeal,

6 ground number 6, for our case.

7 Regarding to other witnesses who testified for that incident, I

8 have to remind my learned friend Mr. Schuster that on the page 124,

9 lines 24 and 25, he said that it is unclear about photo-spreads, are they

10 shown are not to Adem Berberovic. I have to recall the testimony of the

11 chief of investigation department in this case, Mr. Ib Jul Hansen, who

12 testified in the trial and clearly explained that no photo of

13 Sredoje Lukic were used for identification procedure. I will refer you

14 to paragraph 252 of our appeal.

15 Furthermore, VG-25 knew very well Sredoje Lukic before the

16 incident and he was very clear that he did not see Sredoje Lukic in

17 Uzamnica camp. So there is no positive identification of Sredoje Lukic

18 in that incident.

19 Regarding to Pionirska Street incident, as I said, my learned

20 friend repeated arguments from the trial. On our tables we clearly

21 presented conclusions of the Trial Chamber and findings for each of those

22 witnesses, of four witnesses on which evidence the Trial Chamber

23 explained and actually found presence of Sredoje Lukic in the incidents.

24 We are on position that those testimonies are not credible and

25 they are in a huge contradiction. Just one example. Only two witnesses

Page 171

1 who knew Sredoje Lukic prior to that incidents were VG-13 and

2 Hasib Kurspahic. Both of them are credible for the Trial Chamber, but

3 none of them provided evidence that Sredoje Lukic was present in that

4 incident. This is in complete contradiction with the testimony of the

5 son, VG-38, who just heard that Sredoje Lukic allegedly was there. It is

6 completely illogical that in one hand you have a testimony of the mother,

7 VG-13, who knew Sredoje Lukic prior to that incident and who did not see

8 Sredoje Lukic in that incident, instead of the testimony of VG-38 who

9 allegedly heard from other persons that Sredoje Lukic was there.

10 Also, there is a huge contradiction in the testimony of

11 Huso Kurspahic, which source of information was his late father

12 Hasib Kurspahic. The only source of information is statement -- that

13 interview which I quoted of Hasib Kurspahic given just 24 days after the

14 incident. Huso Kurspahic as professional policeman had opportunity for

15 three years to take his father to any police station even if he had a new

16 information for potential statement before the police. So the only

17 source is that I quoted and it is unreasonable to conclude that the

18 testimony of Huso Kurspahic is wider than the explanation provided by

19 Mr. Hasib Kurspahic in that interview.

20 I would just kindly ask you to -- to review our tables and to

21 review our -- our appeal brief, where we quoted so many discrepancies

22 regarding to main factual findings.

23 Thank you very much for your attention and I kindly ask Professor

24 Knoops to continue with our presentation. Thank you very much one more

25 time.

Page 172

1 MR. KNOOPS: Thank you very much.

2 Your Honours, I will raise five arguments, five responses, to the

3 Prosecution response.

4 First, the argument of an alleged de novo trial, de novo appeal.

5 Even when arguments are raised during a trial session in the first

6 instance, the case law of this Court actually obliges the Appeals Chamber

7 to review the same materials in the event of eye-witness identification

8 under difficult circumstances, paragraph 39 of the Appeals Chamber

9 Kupreskic judgement, denoting for extreme caution, I quote from it,

10 paragraph 39; and the duty to provide the reasoned opinion which is

11 absent in the case of Sredoje Lukic by the Trial Chamber.

12 And then the Appeals Chamber in paragraph 40 goes on to set forth

13 that eye-witness identification in the event it is unreasonable or

14 renders a conviction unsafe and the potential for that should be reviewed

15 by the Appeals Chamber. And it mentions seven options, paragraph 40,

16 under which inconsistent or inaccurate testimony about the defendant's

17 physical characteristics at the time of the event which equally counts, I

18 say, for certain objects allegedly in the possession of a defendant, such

19 as an alleged weapon. And the sixth option mentioned by the

20 Appeals Chamber in the Kupreskic case which calls for a review in its

21 totality of the evidence when it's not compelling or credible or a

22 serious doubt is the existence of irreconcilable witness testimony, which

23 is clearly shown by the Defence in its tables.

24 So with all due respect for the submissions of my learned friends

25 from the Prosecution, we are not asking for a de novo appeal. This is

Page 173

1 just simply an application of the principles which were previously

2 adopted by the Appeals Chamber.

3 Now, for instance, VG-084, which is repeatedly called upon by the

4 Prosecution, the 13-year-old boy you find also mention in the table, what

5 did the Trial Chamber actually say about that? Paragraph 490, which is

6 also quoted by the Prosecution. No weight on his evidence as to specific

7 acts of Mr. Milan Lukic and Sredoje Lukic. I repeat, no weight on his

8 evidence as to specific acts.

9 He was disqualified in that respect and he was also disqualified

10 by being not in a position to see Sredoje Lukic as he introduced himself,

11 only he allegedly heard someone introducing that person as Sredoje Lukic.

12 Now, I ask you, an introduction without seeing that person, is

13 that a proper identification of the exact identity? Is it not possible

14 that the name of that person is misused? So without a proper

15 identification, a mere introduction, hearing that somebody's introduced

16 as "I'm John Doe," cannot be accepted in a court of law as an

17 introduction, I quote the Prosecution, that both identified themselves.

18 This is wrong, this is not a wrong way -- this is not a way of

19 identifying a person. The introduction itself, therefore, is incomplete.

20 And therefore, if we are dealing with these types of evidence without a

21 direct eye-witness identification at all, it's totally justified that the

22 Defence asks the Chamber to review the evidence also in part on the facts

23 of the case.

24 Now, actually the Prosecution is doing what it blames the Defence

25 to do. The Prosecution asked actually for a de novo trial. Because the

Page 174

1 Prosecution uses the alleged facts from the stages 1, 3, and 5 for which

2 materially Mr. Lukic is acquitted, not formally, but the Court didn't

3 accept any credible evidence for those stages 1, 3, and 5. Now, the

4 Prosecution is using still alleged activities from those stages to say to

5 the Court: Well, you see, you know, the totality of the events,

6 including the stages 2 and 4, should lead to the conclusion that there

7 was aiding and abetting.

8 Now, this is clearly outside the scope of the Prosecution's

9 appeal because the Prosecution appealed only on two alleged legal errors

10 and no errors of fact. It didn't say in its brief that the Chamber

11 entered into a miscarriage of justice invalidating the judgement by

12 saying that the Chamber erroneously did not accept credible evidence for

13 the stages 1, 3, and 5. So the Prosecution has no right anymore, has

14 forfeited that right, to use that alleged evidence, that trial evidence,

15 the transcripts from those stages, relating to those stages, to

16 substantiate a case which was found by the Court to include only the

17 stages 2 and 4. This is the other way around what the Prosecution is

18 doing.

19 Thirdly, the five stages, if you look at those stages,

20 Your Honour, stage 1, VG-115 was found not credible. No weight on any

21 alleged identification of Mr. Milan Lukic or Sredoje Lukic herding the

22 persons. It is simply not accepted by the Court that those defendants

23 herded the people in the first stage, paragraph 579. Then the second

24 stage, alleged robbery. The Court in 593 only found that

25 Mr. Sredoje Lukic was armed and present. No participation. The

Page 175

1 Prosecution misstates the evidence accepted by the Court by qualifying

2 being armed and present as participating, but that is not what the

3 Chamber says in 593, no participation. Then stage 3, the strip-search

4 and removal -- we can still use the PowerPoint, of course, as

5 Your Honours know -- but maybe it's just a repetition.

6 The third stage which is used by the Prosecution in terms of the

7 totality of the events, the strip-search and removal of the women,

8 paragraph 594, not involved, no participation, VG-013, 108 and 1084,

9 para 596, Milan Lukic removed the women, no word of Sredoje Lukic. So

10 Prosecution cannot use any arguments from that stage.

11 The transfer. Prosecution says, well, if somebody is not able to

12 distinguish those two defendants he can still identify or say something

13 about the arms. Well, this is really the question whether this is

14 permissible under the Kupreskic guide-lines which denotes in case of

15 conflicting evidence extreme caution and a reasoned opinion, which is not

16 to be found in the judgement. Therefore, only a 13-year-old boy, VG-084,

17 was the only one in this stage of the transfer who said something about

18 arms, confusing the defendants and the arms, automatic rifle or a sniper.

19 So there were two mistakes, two identification mistakes made, by a

20 13-year-old boy. Still his evidence was to be found credible to sustain

21 that Mr. Lukic was armed in the fourth stage, the transfer stage. This

22 is really a big question for the Court whether this is acceptable under

23 the Kupreskic guide-lines in the paragraph 39, 40, 222 to 226, where it

24 discredits Witness H and the same arguments.

25 Prosecution says Mr. Lukic was in the house while the robbery

Page 176

1 took place. This is simply not in the evidence. Mr. Lukic was not in

2 the house, paragraph 593 of the Chamber, a finding which was not disputed

3 by the Prosecution in appeal. It has no right to re-open that discretion

4 because it didn't appeal those findings.

5 Then the last stage finding, setting fire -- setting the house on

6 fire, shooting, Prosecution said even when not present it could still

7 amount to a form of participation. That's the way I understand the

8 argument of the Prosecution. The Chamber did not even held that

9 Mr. Sredoje Lukic was present in the fifth stage. Paragraph 609, VG-013,

10 no weight that witness for the court. Paragraph 610, VG-038, not

11 satisfied that he saw Sredoje Lukic in the fifth phase. So how can we

12 even take into account this fifth phase in the totality of the events

13 when this is the findings of the Chamber which are again not disputed by

14 the Prosecution.

15 Then my fourth argument which relates to the response of the

16 Prosecution on the element of substantial, the quantitative requirement

17 for aiding and abetting. The Prosecution has had three arguments: Armed

18 presence, reputation as a local policeman, and three, "he reassured his

19 fellow perpetrators by participating alongside them."

20 What type of reassurance this should have been other than merely

21 passively there because that's the only inference from the evidence. It

22 would then amount to a form of passive contribution. Well, this is not

23 acceptable under the case law unless it is accompanied with verbal

24 encouragement, while silent approval also - according to the case law of

25 the Control Council Acts after World War II cited by Judge Cassese in his

Page 177

1 textbook "International Criminal Law," the second edition, page 215 -

2 silent approval is not sufficient to sustain a type of aiding and

3 abetting. That should be accompanied by either verbal encouragements or

4 other tangible activities of that person to accept the qualification of

5 the Prosecution that somebody is reassured, the principal perpetrators.

6 Reputation of a policeman I already addressed. Nor in evidence

7 is that Mr. Lukic had a form of authority and the mere introduction

8 without proper identification cannot sustain the evidence that somebody

9 was at the crime scene.

10 Finally, Your Honours, you asked me during my presentation,

11 Mr. President, please could you give a definition of constructive

12 presence. You remember the question. I have to be honest to you, I

13 don't think --

14 JUDGE GUNEY: [Interpretation] You have five minutes left.

15 MR. KNOOPS: Yes, I can finish in five minutes, Mr. President.

16 Thank you very much.

17 Well, maybe it's something for the textbook in the future, the

18 definition of constructive presence. It's not to be found in Perkins and

19 Boyce, I can assure you. When I prepared this case, and I tried to find

20 all of the textbooks, Perkins and Boyce, this was one of my books I used

21 for my own university degree, it is not here. There is case law. But of

22 course it will be and has to be determined on a case-by-case basis. But

23 I believe firmly when you look at the underlying rationale of

24 constructive presence, it's all about somebody really being there. And

25 in Furundzija, very interesting, the Appeals Chamber Furundzija accepted

Page 178

1 aiding and abetting because the two defendants were "in full view of each

2 other."

3 You have to -- I can give you the quotation. I think it's in --

4 I can give you the paragraph -- maybe Mr. Cepic there. I did prepare

5 it -- yes, but it's in the Appeals Chamber judgement. In Furundzija

6 Appeals Chamber judgement you find the observation of the Appeals Judges

7 that the defendants, including the defendant who was accused for aiding

8 and abetting, were in full view of each other or with full view of each

9 other. This actually, I think, underlines this principle rationale

10 for -- this precondition for constructive presence. And in the

11 Vasiljevic Appeals Chamber decision, albeit in the context of intent in

12 paragraph 129 and 130, you find the eight indicia the Chamber gave for

13 the reason why they thought Mr. Vasiljevic was an aider and an abettor.

14 And I advise you, if that's necessary, to look into those indicia. Then

15 you -- I think you cannot other than conclude that these indicia are not

16 here. We can maybe invent them or we can think about them like the

17 Prosecution, but they are simply not in the evidence.

18 Thank you very much.

19 It's paragraph 120 of the Furundzija Appeals Chamber decision,

20 21 July 2000, paragraph 120:

21 "When -- where the act of one accused contributes to the purpose

22 of the other, and both acted simultaneously," first requirement, "in the

23 same place," you see the degree of geographical location and the

24 relevance thereof, "and within full view of each other, over a prolonged

25 period of time, the argument that there was no common purpose is plainly

Page 179

1 unsustainable."

2 But to the contrary, Mr. President, here you find the answer of

3 constructive presence. Acting simultaneously, in the same place, with

4 full view of each other, over a prolonged period of time. These are the

5 minimum requirements, I would say, for aiding and abetting in terms of

6 constructive presence. So the answer you asked me is maybe to be found

7 in the Furundzija Appeals Chamber decision paragraph 120. And we can say

8 a lot about this case but one thing is not in the evidence, during the

9 robbery the two defendants alleged to be present there were not, I quote,

10 "within full view of each other," because Mr. Sredoje Lukic was outside

11 the crime scene, outside the house.

12 Thank you.

13 JUDGE GUNEY: [Interpretation] Thank you, Mr. Knoops.

14 It is now time to conclude today's hearing. If the parties have

15 no comments or questions to make, I believe this hearing can be

16 adjourned.

17 Do you have any comments or questions? I don't see any.

18 We shall convene tomorrow at 10.00 in the same courtroom to hear

19 the remaining presentations of the parties.

20 [Appeals Chamber and Registrar confer]

21 JUDGE GUNEY: [Interpretation] I have been advised of the fact

22 that this hearing will be held in Courtroom III. Thank you.

23 --- Whereupon the hearing adjourned at 6.00 p.m.,

24 to be reconvened on Thursday, the 15th day of

25 September, 2011, at 10.00 a.m.