Tribunal Criminal Tribunal for the Former Yugoslavia

Page 227

 1                           Tuesday, 4 December 2012

 2                           [Appeals Judgement]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           --- Upon commencing at 3.00 p.m.

 6             JUDGE GUNEY:  [Interpretation] Good afternoon, everyone.

 7             Mr. Registrar, could you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.  This is case

 9     number IT-98-32/1-A, the Prosecutor versus Milan Lukic and Sredoje Lukic.

10             JUDGE GUNEY: [Interpretation] Thank you.

11             Milan Lukic, can you follow the proceedings in a language you

12     understand?

13             THE APPELLANT M. LUKIC: [Interpretation] Yes, I can.

14             JUDGE GUNEY: [Interpretation] Thank you.

15             Mr. Sredoje Lukic, can you follow the proceedings in a language

16     you understand?

17             THE APPELLANT S. LUKIC: [Interpretation] I can, Your Honour.  I

18     can follow perfectly well.

19             JUDGE GUNEY: [Interpretation] Thank you very much.  Sit down.

20             I would now like to ask the parties to identify themselves,

21     starting with the counsel for the Prosecution.

22             MS. MONCHY:  Good afternoon, Your Honours.  Virginie Monchy

23     appearing today for the Prosecution, together with Kyle Wood,

24     Matthew Gillett, and Matthew Cross, and our case manager, Colin Nawrot.

25     Unfortunately, Peter Kremer, the chief of the Prosecution appeals


Page 228

 1     division, is not able to be present this afternoon, as he's currently

 2     recovering from heart surgery.  And Mr. Kremer has asked me to convey his

 3     apologies to Your Honours.  Thank you.

 4             JUDGE GUNEY: [Interpretation] Thank you.

 5             Could now the counsel for Mr. Milan Lukic identify themselves.

 6             MR. VISNJIC:  Good afternoon, Your Honours.  Tomislav Visnjic and

 7     Dan Ivetic on behalf of Mr. Milan Lukic.

 8             JUDGE GUNEY: [Interpretation] Thank you.

 9             I turn now to counsel for Mr. Sredoje Lukic.

10             MR. CEPIC:  Good afternoon, Your Honours.  On behalf of the

11     Sredoje Lukic Defence team, myself, Djuro Cepic, as lead counsel; on my

12     left-hand side is Mr. Jens Dieckmann as co-counsel; and on my right-hand

13     side is Professor Knoops as our legal consultant.  Thank you very much.

14             JUDGE GUNEY: [Interpretation] Thank you very much.

15             As indicated in the Scheduling Order of 12 November 2012, the

16     Appeals Chamber will deliver its judgement in this case today.  Following

17     the practice of the Tribunal, I will not read out the text of the

18     judgement, except for the disposition.  Instead, I will summarise the

19     issues on appeal and the findings of the Appeals Chamber.  This summary

20     also does not constitute any part of the official and authoritative

21     judgement of the Appeals Chamber, which will be distributed to the

22     parties at the close of this session.

23             The events underlying this appeal took place in the region of

24     Visegrad in Bosnia-Herzegovina between 1992 and 1993.  For a period in

25     1992, Milan Lukic lived in Visegrad town; Sredoje Lukic, his cousin, was


Page 229

 1     a police officer assigned to the town of Visegrad.  In its judgement of

 2     20th July 2009, the Trial Chamber found Milan Lukic guilty of committing

 3     persecution, murder, extermination, and other inhumane acts as crimes

 4     against humanity, as well as murder and cruel treatment as violation of

 5     the laws or customs of war in relation to six distinct incidents:  In the

 6     Drina River incident, Milan Lukic was found guilty of having shot at

 7     seven Muslim civilians, killing five of them; in the Varda factory

 8     incident, Milan Lukic was convicted for having executed seven Muslim

 9     civilians; in the Pionirska Street incident, he was found guilty of

10     having sequestered at least 66 Muslim civilians in the house of

11     Adem Omeragic on Pionirska Street and setting it ablaze, killing 59

12     people; in the Bikavac incident, he was found criminally responsible for

13     having sequestered approximately 60 Muslim civilians in a house in

14     Bikavac and set it ablaze, killing at least 60 people and seriously

15     injuring the sole survivor; he was also found guilty of having shot and

16     killed Hajra Koric, a Bosnian Muslim civilian, and for having regularly

17     beaten detainees at Uzamnica camp from June 1992 until the beginning of

18     1993.  He was sentenced to life imprisonment.

19             The Trial Chamber convicted Sredoje Lukic of aiding and abetting

20     the crimes committed during the Pionirska Street incident, except for

21     extermination, and for having beaten detainees at Uzamnica camp.  He was

22     sentenced to 30 years' imprisonment.

23             Milan Lukic set forth eight grounds of appeal, seeking the

24     reversal of all his convictions or alternatively a reduction of his

25     sentence.


Page 230

 1             Sredoje Lukic presents 15 grounds of appeal, seeking the reversal

 2     of all of his convictions or, alternatively, a reduction of his sentence.

 3             The Prosecution raises two grounds of appeal in relation to the

 4     convictions of Sredoje Lukic and requests that his sentence be increased.

 5             The Appeals Chamber heard oral submissions of the parties on 14

 6     and 15 September 2011.  I start with the appeals of Milan Lukic followed

 7     by the appeals of Sredoje Lukic and then the ones of the Prosecution.

 8             In relation to ground seven of Milan Lukic's appeal regarding

 9     alleged fair trial rights violations, the Appeals Chamber finds that

10     Milan Lukic has failed to demonstrate that the Trial Chamber erred in

11     concluding that he had adequate time and facilities to prepare his

12     defence before trial and that it unduly restricted his defence.  However,

13     the Appeals Chamber finds that the Trial Chamber did not adequately

14     assess any impact of some of the Prosecution witnesses' involvement with

15     the Women Victims of War Association on their credibility, and

16     accordingly finds that it failed to provide a reasoned opinion in this

17     respect.  The Appeals Chamber has evaluated any impact of the witnesses'

18     involvement with this association when addressing other challenges

19     related to these witnesses.

20             In relation to grounds one and two of his appeal, the Appeals

21     Chamber rejects Milan Lukic's challenges to the Trial Chamber's finding

22     that his alleged alibi for the Drina River and Varda factory incidents

23     was not reasonably possibly true.  Further, the Appeals Chamber considers

24     that the Trial Chamber did not err in allowing in-court identification

25     per se.  However, the Appeals Chamber recalls that little or no weight


Page 231

 1     should be given to this evidence.

 2             With regard to the identification of Milan Lukic at the

 3     Drina River and Varda factory incidents, the Appeals Chamber notes that

 4     the Trial Chamber mainly relied on the witnesses' prior knowledge of

 5     Milan Lukic and that the inconsistencies in their accounts are minor.  In

 6     relation to Milan Lukic's challenges to the Trial Chamber's finding

 7     regarding the victims, the Appeals Chamber finds that Milan Lukic has

 8     failed to show that the Trial Chamber erred in finding that the only

 9     reasonable inference was that the victims were dead.  As for his

10     convictions for committing the murders of five persons at the Drina

11     River, Milan Lukic -- the Appeals Chamber finds that by participating

12     physically in the material elements of the crime of murder, Milan Lukic

13     is criminally responsible for the murders.  Milan Lukic's convictions are

14     therefore upheld.

15             In relation to Milan Lukic's fifth ground of appeal, the Appeals

16     Chamber finds that any inconsistencies in the identification evidence

17     were minor and that the Trial Chamber did not err in identifying

18     Milan Lukic as the perpetrator of the murder of Hajra Koric.  This ground

19     of appeal is dismissed.

20             With respect to Milan Lukic's third ground of appeal on the

21     Pionirska Street incident, the Appeals Chamber finds that the

22     Trial Chamber correctly held that the alibi was not reasonably possibly

23     true, that the witnesses identified him during the incident, and that

24     Milan Lukic started the fire at the Omeragic house.  However, the Appeals

25     Chamber finds that the Trial Chamber erred in concluding that 59 persons


Page 232

 1     died in the fire and finds instead that 53 persons were killed.

 2             In relation to ground four of Milan Lukic's appeal brief, the

 3     Appeals Chamber finds that the Trial Chamber did not err in finding that

 4     the fire during that Bikavac incident occurred, that Milan Lukic was

 5     identified during this incident, and that at least 60 victims died in the

 6     fire.  This ground of appeal is dismissed in its entirety.

 7             In relation to the crime of extermination, the Appeals Chamber is

 8     satisfied that the Trial Chamber did not err in finding that the killings

 9     at the Pionirska Street incident and of at least 60 victims at the

10     Bikavac incidents met the massiveness requirement of extermination.  The

11     limited reduction by the Appeals Chamber of the number of victims does

12     not affect this conclusion.  Furthermore, the Appeals Chamber finds,

13     Judge Morrison dissenting, that the Trial Chamber did not err in taking

14     into consideration the type of victims and population density of their

15     area of origin when assessing the requirement of massiveness.

16     Consequently, the Appeals Chamber upholds Milan Lukic's convictions of

17     committing extermination as a crime against humanity during the

18     Pionirska Street and Bikavac incidents.

19             In his sixth ground of appeal, Milan Lukic argues that the

20     Trial Chamber erred in the assessment of his partial alibi for crimes

21     committed in Uzamnica camp, claiming that he was imprisoned in Serbia

22     from April 1993 until late 1994.  However, even if the alibi documents

23     show that Milan Lukic was imprisoned in Serbia during that period, they

24     do not undermine his conviction since the time-period covered does not

25     overlap with his convictions for beatings of detainees in the Uzamnica


Page 233

 1     camp between June 1992 and early 1993.  Therefore, the Appeals Chamber

 2     upholds his conviction for other inhumane acts and persecutions as crimes

 3     against humanity and cruel treatment as a violation of the laws or

 4     customs of war in relation to the events that occurred at the Uzamnica

 5     camp.

 6             Finally, the Appeals Chamber dismisses Milan Lukic's submissions

 7     relating to sentencing.

 8             I will now address Sredoje Lukic's and the Prosecution's appeals.

 9             The Trial Chamber found Sredoje Lukic guilty in relation to

10     crimes committed at the Uzamnica camp and the Pionirska Street incident.

11     With regard to the Pionirska Street incident, it specifically found that

12     on or about 14 June 1992, Sredoje Lukic was among a group of armed men

13     present at the house of Jusuf Memic, or the Memic house, where at least

14     66 civilians from the village of Koritnik were held, robbed at gunpoint,

15     and subjected to other criminal acts.  Subsequently, Sredoje Lukic came

16     back with a group of armed men and transferred the civilians from the

17     Memic house to the nearby Omeragic house, which was later set on fire by

18     Milan Lukic, killing a large majority of those detained in it.

19     Sredoje Lukic was found to have been armed and present at the Memic house

20     and during the transfer of the victims.  The Trial Chamber found

21     Sredoje Lukic guilty of aiding and abetting persecutions and other

22     inhumane acts as crimes against humanity, and cruel treatment as a

23     violation of the laws or customs of war.  It further found him guilty, by

24     majority, of murders both as crimes against humanity and violations of

25     the laws or customs of war.


Page 234

 1             In grounds one through six of his appeal, Sredoje Lukic

 2     challenges the Trial Chamber's assessment of the witnesses who testified

 3     that he was present at the Memic house and during the transfer of the

 4     victims to the Omeragic house.  In relation to Sredoje Lukic's presence

 5     at the Memic house, the Appeals Chamber, Judge Morrison dissenting, finds

 6     no error and upholds his convictions for aiding and abetting persecutions

 7     and other inhumane acts as crimes against humanity and cruel treatment as

 8     a violation of the laws or customs of war.

 9             In relation to his presence at the transfer to the Omeragic

10     house, the Appeals Chamber, Judges Guney and Morrison dissenting, also

11     finds that the Trial Chamber did not err in finding him present and in

12     holding that by his armed presence at the Memic house and his

13     participation in the transfer, Sredoje Lukic aided and abetted the

14     murders at the Omeragic house by providing practical assistance.  While

15     the Trial Chamber erroneously failed to make a finding as to whether

16     Sredoje Lukic's acts had a substantial effect on the commission of the

17     crimes, the Appeals Chamber finds that this error does not invalidate the

18     trial judgement.

19             In relation to his eighth ground of appeal regarding Uzamnica

20     camp, Sredoje Lukic submits that the Trial Chamber erred in finding that

21     witnesses identified him in the camp.  The Appeals Chamber finds,

22     Judges Pocar and Liu dissenting, that in light of the Trial Chamber's own

23     findings and the inconsistencies in Kustura evidence, a reasonable

24     Trial Chamber could not have based a conviction on his testimony absent

25     corroboration.  The Appeals Chamber also concluded, Judges Pocar and Liu


Page 235

 1     dissenting, that the Trial Chamber failed to provide reasons for

 2     preferring Witness Nurko Dervisevic's prior statements over his oral

 3     testimony.  Consequently, the Appeals Chamber, Judges Pocar and Liu

 4     dissenting, finds that the Trial Chamber erred in finding that

 5     Sredoje Lukic beat detainees on several occasions.

 6             The Appeals Chamber finds that Sredoje Lukic beat

 7     Nurko Dervisevic on one occasion.  With respect to this incident, the

 8     Appeals Chamber finds, Judges Pocar and Liu dissenting, that no

 9     reasonable trier of fact could have found that it caused serious bodily

10     and mental harm and that Sredoje Lukic thereby aided and abetted

11     persecutions and inhumane acts as a crime against humanity and cruel

12     treatment as a violation of the laws or customs of war.  The Appeals

13     Chamber, Judges Pocar and Liu dissenting, therefore overturns all of

14     Sredoje Lukic's convictions related to Uzamnica camp.

15             Consequently, the Appeals Chamber, Judges Pocar and Liu

16     dissenting, considers moot the Prosecution's second ground of appeal in

17     which the Prosecution argues that the Trial Chamber erred in failing to

18     convict Sredoje Lukic for committing persecutions in the Uzamnica camp.

19             As to the Prosecution's first ground of appeal, the Trial Chamber

20     found that there was no majority to enter a conviction against

21     Sredoje Lukic for aiding and abetting extermination on Pionirska Street.

22     The Appeals Chamber notes that Rule 87(A) of the Rules states that a

23     majority of Judges must be satisfied that the guilt of the accused has

24     been proved beyond reasonable doubt.  Since neither

25     Judge Van Den Wyngaert nor Judge Robinson were satisfied that


Page 236

 1     Sredoje Lukic should be convicted of this offence, the Prosecution failed

 2     to prove any error on the part of the Trial Chamber.

 3             And finally, the Appeals Chamber has dismissed Sredoje Lukic's

 4     submissions relating to sentences.

 5             I will now read out the disposition of the appeal judgement.

 6             Mr. Milan Lukic and Mr. Sredoje Lukic, will you please rise.

 7                           [The appellants stand]

 8             JUDGE GUNEY: [Interpretation] Thank you.

 9             For the foregoing reasons, the Appeals Chamber, pursuant to

10     Article 25 of the Statute and Rules 117 and 118 of the Rules;

11             Noting the respective written submissions of the parties and the

12     arguments they presented at the appeal hearing on the 14th and 15th

13     September 2011; sitting in open session; grants, in part, Milan Lukic's

14     subgrounds 7(D) and 3(A) and replaces the Trial Chamber's finding that 59

15     victims died at the Pionirska Street incident with the finding that 53

16     victims died; dismisses the remainder of Milan Lukic's appeal; dismisses,

17     Judge Morrison dissenting, Sredoje Lukic's first ground of appeal;

18     dismisses, Judge Guney and Judge Morrison dissenting, Sredoje Lukic's

19     second ground of appeal; dismisses, Judge Morrison dissenting,

20     Sredoje Lukic 5th, 6th, 11th, and 12th grounds of appeal insofar as they

21     relate to his convictions for aiding and abetting the crimes of cruel

22     treatment as a violation of the laws or customs of war as well as

23     persecutions and other inhumane acts as crimes against humanity, all

24     committed at the Memic house; dismisses, Judge Guney and Judge Morrison

25     dissenting, Sredoje Lukic's 3rd, 4th, 5th, 6th, 11th, and 12th grounds of


Page 237

 1     appeal insofar as they relate to his convictions for aiding and abetting

 2     the crimes of murder and cruel treatment as violation of the laws or

 3     customs of war, as well as murder, persecutions, and other inhumane acts

 4     as crimes against humanity, all committed at the Omeragic house;

 5             Grants, in part, Judge Pocar and Judge Liu dissenting,

 6     Sredoje Lukic's 8th ground of appeal and reverses, Judge Pocar and Judge

 7     Liu dissenting, his convictions for the beatings of Kustura, Dervisevic,

 8     and other detainees; grants in part, Judge Pocar and Judge Liu

 9     dissenting, Sredoje Lukic's 9th ground of appeal and reverses, Judge

10     Pocar and Liu dissenting, his convictions for having aided and abetted

11     the crimes of cruel treatment as a violation of the laws or customs of

12     war, as well as persecutions and other inhumane acts as crimes against

13     humanity, all in relation to beatings in the Uzamnica camp; and declares

14     moot, Judge Pocar and Judge Liu dissenting, the remainder of his 9th

15     ground of appeal and his 10th ground of appeal, as well as his 11th and

16     12th grounds of appeal in as far as they relate to the beatings at the

17     Uzamnica camp; dismisses Sredoje Lukic's appeal in all other respects;

18     dismisses the Prosecution's first ground of appeal; and declares moot the

19     Prosecution's second ground of appeal; affirms Milan Lukic's sentence of

20     life imprisonment, subject to credit being given under Rule 101(C) of the

21     Rules for the period already spent in detention;

22             Reduces, Judge Pocar and Judge Liu dissenting, Sredoje Lukic's

23     sentence of 30 years' imprisonment to a sentence of 27 years'

24     imprisonment subject to credit being given under Rule 101(C) of the Rules

25     for the period already spent in detention;


Page 238

 1             Orders, in accordance with Rule 103(C) and 107 of the Rules, that

 2     Milan Lukic and Sredoje Lukic are to remain in the custody of the

 3     Tribunal pending the finalisation of arrangements for their transfer to

 4     the state where their sentences will be served.

 5             Judge Guney appends separate and partially dissenting opinions.

 6     Judge Agius appends a separate opinion.  Judges Pocar and Liu append a

 7     joint dissenting opinion.  Judge Morrison appends separate and dissenting

 8     opinions.

 9             Mr. Milan Lukic, Mr. Sredoje Lukic, you may be seated.

10                           [The Appellants sit down]

11             JUDGE GUNEY: [Interpretation] Thank you.

12             Registrar, would you please distribute copies of the judgement to

13     the parties.

14             [In English] There is nothing left to deal with.

15             [Interpretation] We are adjourned.

16                           --- Whereupon the hearing adjourned at 3.38 p.m.

17

18

19

20

21

22

23

24

25