Tribunal Criminal Tribunal for the Former Yugoslavia

Page 75

1 Monday, 17 October 2005

2 [Appeal Proceedings]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE POCAR: Good morning to everybody.

7 Madam Registrar, would you please call the case.

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

9 IT-98-34-A, the Prosecutor versus Mladen Naletilic and Vinko Martinovic.

10 JUDGE POCAR: Thank you. Can Mr. Naletilic and Mr. Martinovic

11 hear me and follow the proceedings in a language they understand?

12 THE APPELLANT NALETILIC: [Interpretation] [No interpretation].

13 JUDGE POCAR: I understand there is a problem with the transcript.

14 I understand everybody has now the transcript. Let me call for

15 the appearances. For the Prosecution, please.

16 MR. FARRELL: Good morning, Your Honours. Good morning to my

17 learned colleagues. Appearing for the Prosecution is myself, Norman

18 Farrell, and with me is Mr. Peter Kremer, if I may just take this moment

19 to introduce to the Bench Mr. Kremer. He's the new senior appeals counsel

20 in the Prosecution's office and is the counsel who will deal with

21 Mr. Naletilic's case. As well, counsel will be Ms. Marie-Ursula Kind,

22 Mr. Steffen Wirth and Mr. Xavier Tracol. Our case manager is Ms. Lourdes

23 Galicia.

24 Just one more issue, if I may. In light of the limited seating

25 and the fact that Mr. Kremer and I have split up the case, Mr. Kremer will

Page 76

1 primarily respond to Mr. Naletilic's appeal. I will primarily respond to

2 Mr. Martinovic's appeal. So with leave of the Court, Mr. President, if

3 there is not enough room, if I may be excused during the Naletilic appeal

4 and counsel and myself on the Martinovic appeal will appear for that one,

5 just so it's not too busy on the bench on our side.

6 Thank you.

7 JUDGE POCAR: I understand. And of course welcome to Mr. Kremer

8 as a new member of the counsel for the Prosecution.

9 MR. KREMER: Thank you.

10 JUDGE POCAR: Now for Mr. Naletilic, please?

11 MR. HENNESSY: Good morning, Matthew Hennessy and Chris Meek

12 appearing for the accused, Mr. Naletilic.

13 JUDGE POCAR: Thank you. May I ask for Mr. Martinovic.

14 MR. PAR: [Interpretation] Good morning, Your Honours, Kurt Kerns

15 and Zelimir Par.

16 JUDGE POCAR: This is the appeals hearing in the case of the

17 Prosecutor against Mladen Naletilic, also known as Tuta, and Vinko

18 Martinovic, also known as Stela. I will briefly now summarise the appeals

19 which are pending before the Appeals Chamber and the manner in which we

20 will proceed today.

21 The appeals deal with crimes related to the HVO attacks on Sovici,

22 Doljani, Mostar and Rastani in south-western Bosnia-Herzegovina during the

23 period from April 1993 until January 1994.

24 Naletilic, Martinovic and the Prosecution appeal from a judgement

25 rendered on 31st March, 2003 by Trial Chamber I composed of Judge Liu and

Page 77

1 Judges Clark and Diarra. The Trial Chamber found Naletilic guilty on

2 charges of persecution on political, racial and religious grounds as a

3 crime against humanity, Count 1; of unlawful labour as a violation of the

4 laws and customs of war, Count 5; as torture as a crime against humanity,

5 Count 9; torture as a grave breach of the Geneva Conventions of 1949,

6 Count 10; wilfully causing great suffering or serious injury to body or

7 health as a grave breach of the Geneva Conventions of 1949, Count 12;

8 unlawful transfer of a civilian as a grave breach of the Geneva

9 Conventions of 1949, Count 18; wanton destruction, not justified by

10 military necessity as a violation of the laws or customs of war, Count 20;

11 and plunder of public or private property as a violation of the laws or

12 customs of war, Count 21.

13 Naletilic was sentenced to a single sentence of 20 years of

14 imprisonment.

15 The Trial Chamber found Martinovic guilty on charges of

16 persecution on political, racial and religious grounds as a crime against

17 humanity, Count 1; inhumane acts as a crime against humanity, Count 2;

18 inhumane treatment as a grave breach of the Geneva Conventions of 1949,

19 Count 3; unlawful labour as a violations of the laws or customs of war,

20 Count 5; wilfully causing great suffering or serious injury to body or

21 health as a grave breach of the Geneva Conventions of 1949, Count 12;

22 murder as a crime against humanity, Count 13; wilfull killing as a grave

23 breach of the Geneva Conventions of 1949, Count 14; unlawful transfer of a

24 civilian as a grave breach of the Geneva Conventions of 1949, Count 18;

25 and finally plunder of public or private property as a violation of the

Page 78

1 laws or customs of war, Count 21.

2 Martinovic was sentenced to a single sentence of 18 years of

3 imprisonment.

4 Naletilic and Martinovic filed notices of appeal on 29 April 2003.

5 The Prosecution did so on 2nd May 2003. I will now briefly summarise the

6 grounds of appeal.

7 Naletilic brings 40 grounds of appeal. Grounds 1 through 39

8 allege errors in the Trial Chamber's factual findings in relation to each

9 of Naletilic's convictions, including those findings that deal with his

10 position as a commander. Naletilic also alleges that the indictment was

11 vague for certain incidents. He further alleges errors in the admission

12 and evaluation of evidence and in the Trial Chamber's ruling on certain

13 motions.

14 Ground 40 concerns his appeal from sentence.

15 In particular, under his 17th ground, Naletilic alleges that the

16 Trial Chamber erred in finding that certain acts constituted torture

17 because, according to him, the evidence was insufficient to establish that

18 they rose to the requisite level of seriousness. On 2nd September 2005,

19 Naletilic sought leave to submit a pre-submission brief on torture. The

20 Appeals Chamber denied leave on 13 October 2005 on the basis that the

21 pre-submission brief raised a whole new ground of appeal which was outside

22 Naletilic's notice of appeal and that good cause did not exist for

23 amending the notice of appeal.

24 Martinovic brings three grounds of appeal. Under his first ground

25 Martinovic alleges errors of law relating to the Trial Chamber's finding

Page 79

1 of an international armed conflict and to the permissibility of

2 alternative charging and of cumulative convictions.

3 Under his second ground, Martinovic alleges that the indictment

4 was vague with respect to certain incidents and alleges errors in the

5 Trial Chamber's factual findings in relation to each of his convictions.

6 His third ground concerns his appeal from sentence.

7 The Prosecution originally brought four grounds of appeal. By

8 notice of 30 September 2005, the Prosecution withdrew its second ground of

9 appeal regarding unlawful labour.

10 Under its first ground, the Prosecution alleges errors in the

11 Trial Chamber's finding that there was insufficient evidence that certain

12 acts were committed on racial, political, religious grounds for the

13 purposes of persecution.

14 Under its third ground of appeal, the Prosecution alleges that the

15 Trial Chamber erred in holding that deportation requires the transfer of

16 persons across a state border.

17 Under its fourth ground of appeal, the Prosecution alleges errors

18 by the Trial Chamber in applying cumulative convictions to persecution and

19 another Article 5 crime.

20 On 6 October 2005, the Prosecution filed a confidential motion for

21 the admission of additional evidence on appeal pursuant to Rule 115. The

22 Appeals Chamber granted it on the basis that the proffered evidence was

23 unavailable at trial and that had it been available, it could have shown

24 that Naletilic's conviction pursuant to Article 7(3) of the Statute for

25 the torture of Witness Z was unsafe. It would be most helpful if the

Page 80

1 parties could address this additional evidence in their submissions,

2 bearing in mind the protective measures that are in place.

3 During the hearing, the Appellants' counsel may argue the grounds

4 of appeal in the order they consider most suitable for their presentation.

5 I wish to note, however, that by the Scheduling Order of 16 September

6 2005, the Appeals Chamber has invited the parties to further develop their

7 submissions on the following alleged errors which the Scheduling Order

8 sets out in greater detail: (1) is the vagueness of the indictment for

9 several incidents; (2) is the definition of deportation; (3), admission of

10 evidence secured by a search warrant; (4), admission of evidence in

11 support of the Prosecution's rebuttal case; (5), Naletilic's mens rea as a

12 superior regarding the activities of ATG units in Ljubuski and Mostar;

13 (6), unlawful labour in the area of responsibility of the Vinko Skrobo

14 ATG; (7), the use of human shields on 7 September 1993; and (8), the use

15 of detainees to loot private property.

16 The parties have also been invited to clarify a list of small

17 points which was communicated to them on 16 September 2005 in which --

18 does not need to be restated here now.

19 These invitations are made - I want to stress - without prejudice

20 to any matter the parties or the Chamber may wish to raise and in no way

21 constitute an expression of an opinion on the merits of the appeal.

22 I would now like to recall the criteria applicable to errors of

23 fact and law alleged on appeal. The appeal is not a trial de novo and the

24 Appellants must not merely repeat their case from the trial level.

25 Rather, in accordance with Article 24 of the Statute of this Tribunal, the

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1 Appellants must limit their arguments to alleged errors of law which

2 invalidate the decision or alleged errors of fact occasioning a

3 miscarriage of justice. Additionally, it should be recalled that the

4 Appellants have an obligation to provide precise references to materials

5 supporting their arguments on appeal.

6 This hearing will proceed according to the Scheduling Order issued

7 on 16 September 2005. Counsel for Naletilic will present his submissions

8 this morning until 10.45, for one hour 30 minutes. Following a 30

9 minutes' pause, counsel for the Prosecution will present his response,

10 again for an hour 30 but there will be a pause in between for lunch. And

11 therefore, and afterwards, counsel for Naletilic will have time to reply,

12 30 minutes in the afternoon.

13 Then we will proceed with the appeal of Martinovic. And we will

14 conclude the hearing before 6.00 tonight. The hearing will continue

15 tomorrow for the other comments. And we will conclude tomorrow evening.

16 It will be most helpful to the Appeals Chamber if the parties

17 could present their submissions in a precise and clear manner. Of course,

18 I wish to remind the parties that the Judges may interrupt the parties at

19 any time to ask questions or they may prefer to ask questions following

20 each party's submission.

21 Having said this, about the manner in which we will proceed today,

22 I would now like to invite counsel for Naletilic to present submissions in

23 support of his appeal.

24 Mr. Farrell.

25 MR. FARRELL: If I can just indicate to the Court that with your

Page 82

1 leave I'll excuse myself with Mr. Tracol. Thank you.

2 JUDGE POCAR: Sure. So counsel for Naletilic has the floor.

3 MR. MEEK: May it please the Honourable Chamber, just a

4 preliminary matter is that we spoke with the OLAD last week concerning an

5 interpreter to be here with us in the courtroom so that we could

6 communicate with our client, Mladen Naletilic, Tuta. He spokes no English

7 and we spoke no B/C/S. The interpreter, Marko, was supposed to be here a

8 little before 9.00, and I am unsure where he is, if he's down in the lobby

9 or if they didn't let him come up. I left my -- obviously my cell phone

10 in the Defence counsel room, so if he's trying to call me I wouldn't know

11 it. I just want to bring that to the Chamber's attention because I think

12 it's kind of an important issue to have -- to be able to communicate with

13 our client or our client be able to tell us or ask us or direct us to do

14 certain things. Thank you.

15 JUDGE POCAR: May I ask the Registrar to clarify this point?

16 THE REGISTRAR: Your Honour, we can go out and search for this

17 gentleman perhaps, if you wish. We don't know whereabouts of this

18 interpreter.

19 JUDGE POCAR: Well, I would suggest that the Registrar or the

20 usher go to look for the interpreter. But in the meantime, I think

21 counsel for Naletilic can start presenting the case because the accused

22 can follow in any case the presentation.

23 MR. HENNESSY: Yes, thank you, Judge, and that was going to be my

24 suggestion.

25 May it please the Court, members of the Prosecution and members of

Page 83

1 the Defence, again my name is Matthew Hennessy and I have the privilege of

2 representing Mr. Naletilic here on appeal. I'm going to first present an

3 outline of what we intend to cover and just in our presentation here, of

4 course, we stand by our brief and certainly do not withdraw any of the

5 points presented in it.

6 But what we will cover -- what we will cover will ultimately

7 address what convictions should stand and what the ultimate sentence

8 should be, as the Court has already stated and is well aware of, the

9 sentence given was a single sentence of 20 years. At the conclusion of

10 our presentation here later today, we will be asking the Chamber to reform

11 judgement and sentence and sentence to no more than eight years'

12 incarceration.

13 We will begin -- I will begin by discussing command,

14 Mr. Naletilic's command position and the evidence of it, move on to

15 evidence supporting, or not, his mens rea in connection with the Ljubuski

16 and Mostar points. In connection with Ljubuski I'll also, as the Court

17 has invited us to, discuss the impact of the Prosecution's latest filed

18 Rule 115 motion. I'll then move on to the Rados diary points, PP928. We

19 will then discuss mistreatment of prisoners focussed mainly on torture.

20 Discuss the vagueness of the indictment, specifically as to the Mostar

21 unlawful transfer convictions, and as to the Ljubuski prison events.

22 I'll also talk about sentence and how this, as we contend, this

23 20-year sentence is out of step with the continuum of convictions that

24 have come out of this Tribunal.

25 Mr. Meek will cover the search warrant issue that we've raised and

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Page 85

1 also our objections to the admission of Prosecution Exhibit PP704. He

2 will also discuss the impact of the evidence of Falk Simang and related

3 points, plunder, forced labour, and he'll also summarise in greater detail

4 factual errors that we have presented.

5 There is some overlap between the appeal of Mr. Naletilic and

6 Mr. Martinovic, overlap that we see involves international armed conflict

7 and deportation. Both of those points will be covered by Mr. Kerns in due

8 course.

9 Moving now to command position, in paragraph 96 of the judgement,

10 the Trial Chamber found that Mr. Naletilic was not the operative commander

11 of the Convicts' Battalion but rather was the overall commander. While we

12 don't disagree with that finding, we don't agree with it entirely. We

13 certainly do not disagree that he was not the operative commander, and

14 I'll note that all liability under 7(3), superior liability, is continued

15 upon operations that were conducted throughout the area relevant to the

16 indictment, and as was already found by the Trial Chamber, he was not an

17 operative commander but rather a, quote/unquote, overall commander. What

18 we disagree with is the evidence supporting this concept that overall

19 commander meant he had effective control or actual control of the actual

20 individuals who participated in the operations.

21 What is true, and is not reasonably in dispute, is that

22 Mr. Naletilic founded the Convicts' Battalion. We take issue with the

23 fact that he was a commander all the way through the period -- the

24 relevant period of the indictment. What is certainly true, and we do not

25 dispute, is that Mr. Naletilic remained a man of influence throughout the

Page 86

1 time. But being that he was not an operative commander, we contend that

2 the evidence does not support the contention of the Prosecution that he

3 was in a position to know or have reason to know what members of the

4 battalion which he had formally founded were doing during the time

5 relevant to the indictment.

6 That brings me to mens rea, knew or had reason to know, which is

7 our ground of appeal 21.

8 As to -- I'm going to begin with the Ljubuski events, the Ljubuski

9 prison. In paragraph 428 of the trial judgement, the Trial Chamber

10 attributed 7(3) responsibility to Mr. Naletilic because he -- they said,

11 they found that he had reason to know that there was a high risk, high

12 risk, that Convicts' Battalion members would go to the Ljubuski prison

13 seeking revenge for prior events.

14 I suggest, as a preliminary matter, that the Trial Chamber's

15 statement that 7(3) responsibility is attributable based upon this high

16 risk is -- indicates a misapplication of the law of mens rea with respect

17 to 7(3), which is set out fully in the Celebici appeal judgement. It's

18 know or had reason to know. This high risk, this good chance or high risk

19 is, I suggest, at odds with the degree of certainty which an individual

20 alleged commander should have in order for 7(3) responsibility to be

21 triggered.

22 But let's further examine the evidence which we contend does not

23 support a finding of mens rea in connection with Ljubuski, the Ljubuski

24 prison. The -- in addition to this so-called or perceived high risk, the

25 Trial Chamber found that Mr. Naletilic's knowledge, if you can call it

Page 87

1 that, that things may happen, if bad things may happen, crimes may be

2 committed in the Ljubuski prison began on the road to Ljubuski from

3 Sovici. The testimony was that along the way on that road a bus was stuck

4 in the mud and that bus was carrying prisoners from Sovici to Ljubuski.

5 Soldiers were mistreating one of the prisoners, a Witness Y.

6 Mr. Naletilic arrived during the mistreatment of that prisoner and stopped

7 the mistreatment. My point being is that the two -- the event which the

8 Trial Chamber stated that must have created a high risk or that

9 Mr. Naletilic would have known there was a high risk of mistreatment that

10 in fact what that event -- that event along the road to Ljubuski was

11 actually evidence to the contrary, that he had stopped it and had no

12 reason to think it would continue. So this concept of high risk, while

13 one misplaced, is not supported by the record.

14 We are moving into problems with the -- which Mr. Meek will

15 address regarding PP704, this list of members, supposed members, of the

16 Convicts' Battalion, that list being from November 1993. The reason I

17 come to that is a final element of the Trial Chamber's findings as to

18 Mr. Naletilic's mens rea as to Ljubuski prison involved the fact that the

19 Trial Chamber found that Romeo Blazevic, Ernest Takac, a person named Robo

20 and Ivan Hrkac actually committed the various crimes there at Ljubuski

21 prison.

22 This document, PP704, was used by the Trial Chamber to establish

23 that those names, that those people, were at relevant times members of the

24 KB, Convicts' Battalion. Mr. Meek will speak more specifically about how

25 that particular document should not be used in the manner in which the

Page 88

1 Trial Chamber used it. Also he will speak about the fairness of using

2 that document, that is based upon how it was found, using the search

3 warrant, and as I said, Mr. Meek will address whether that document should

4 have been admitted at all.

5 But suffice for my purposes here as to mens rea, there was not

6 sufficient evidence, not a sufficient predicate established to show that

7 the people on that list, the 282 people, is what the Trial Chamber found

8 at one point, that those 282 people were all members of the KB at all

9 relevant times. PP704 does not set out when these individuals who were on

10 the list became members and specifically does not identify when Romeo

11 Blazevic, Ernest Takac, the person named Robo or Ivan Hrkac, when they

12 were members of the KB for purposes of attributing any of their conduct to

13 Mr. Naletilic in the sense of that he knew or had reason to know what they

14 might be doing.

15 704, PP704, also is important now, I told the Court or the Chamber

16 I would be mentioning this, based upon the Prosecution's recent 115

17 filing. Important in my view to the Trial Chamber's determination of

18 Mr. Naletilic's mens rea as to what was going on at Ljubuski prison, and

19 mind you, between May and September of 1993, not -- not a discrete dates

20 or discrete short periods of time from May to September. What the Trial

21 Chamber found and the Chamber will see this in the paragraph -- it's

22 paragraph 478 -- excuse me, 428 and just before, two or three paragraphs

23 before that, in the trial judgement, is reference to a Ivica Kraljevic,

24 who the Trial Chamber found in my view there is no other way to read the

25 judgement, that the Trial Chamber found was a member of the KB, the

Page 89

1 Convicts' Battalion, at all relevant times for the indictment.

2 And here is the implication of such a finding. Here is the

3 implication of such a finding. If a member of the KB were in charge of

4 the Ljubuski prison and members -- and there are people inside that

5 Ljubuski prison who are on this 704 list, and by the way, this -- the name

6 Ivica Kraljevic, was on the PP704 list as well, that if the warden of the

7 KB is letting other people who are on this same list into the prison for

8 purpose of committing crimes, then the connection, the mens rea, well,

9 that may actually be a fair leap. But if on the other hand -- if and we

10 now know this to be true, the warden, Ivica Kraljevic, of the Ljubuski

11 prison, was not a KB member, was not a KB member at all. That's what the

12 Prosecution's recent 115 filing establishes. It also establishes, it also

13 establishes, that this warden, Kraljevic, did not come to be warden until

14 July or August 1993. The importance of that being -- the importance of

15 that being almost all, rather, all but one of the -- all but one of the

16 crimes attributed to Mr. Naletilic via 7(3) relating to Ljubuski prison,

17 all but one occurred, if they did, before this Kraljevic became warden.

18 So the Trial Chamber's findings as to Ljubuski prison entirely, entirely,

19 need to be reviewed because what happened was -- and specifically, and

20 it's within our point, that this Kraljevic, the true warden, not being a

21 member of the KB, starting in September or August, he certainly was not

22 under even any possible command of Mr. Naletilic, and Mr. Naletilic

23 therefore should not have known it or nor should he have reason to know

24 how this third party was running his prison. And, before he became

25 warden, we have no evidence as to who the warden was, so between May and

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1 August of 1993, there is no evidence as to who was running that prison.

2 However, what the Trial Chamber did was attribute 7(3) liability

3 from May to September, 7(3) liability on Mr. Naletilic from May to

4 September 1993 based in large part on the fact that a member of the KB was

5 running that prison. We now know that not to be the case.

6 So to summarise the Defence's view now of what the best state of

7 the evidence could be relating to Ljubuski prison is that some random

8 acts, random criminal acts, were committed by people inside the Ljubuski

9 prison, but that there is no evidence or even -- at best insufficient

10 evidence, to establish who was in control of either the prison or of the

11 individuals who committed such acts. Either way, the mens rea as to any

12 proof of mens rea as to Mr. Naletilic is woefully lacking.

13 Next, as to Mostar, mens rea as to Mostar.

14 Paragraph 88 of the judgement uses as is common throughout the

15 judgement, uses PP704 again to conclude that every member on that list,

16 every person on that list, was a member of the KB throughout all relevant

17 periods. The -- I point that out now because as to Mostar, there were --

18 and this really relates to -- and I'll address this further, later in my

19 discussion. But as to the mens rea for Mostar that really relates to two

20 convictions for forcible transfers, the one time period being from

21 June 12 -- excuse me, June 13 to 14, 1993 and September 29, 1993. That

22 what the Trial Chamber did was use PP704 to establish that people on the

23 list, PP704, who may have been forcing the transfer of individuals from

24 Mostar in June and September, the Chamber used PP704 to attribute mens rea

25 to Mr. Naletilic that he knew or had reason to know what they were doing

Page 91

1 on those two discrete dates.

2 Well, point out again that this list is from November 1993, and

3 there is no indication on PP704 as to when the individuals on the list

4 came to be on the list, so it is -- it is not a leap of logic but a leap

5 of faith which led - I respectfully submit - the Trial Chamber to find

6 that members on the people listed on PP704 were under Mladen Naletilic's

7 control in June and September 1993.

8 I also point out that that leap, that leap of faith that I'm

9 calling it, is at odds with what I say is a correct statement of mens rea

10 in the trial judgement at paragraph 116, that in order to establish

11 mens rea, that an individual for 7(3), an individual must know or have

12 reason to know, as to each -- each particular event, each atomic event, so

13 that using a blanket document such as PP704, which shows a list after the

14 fact does not establish who were members at the time of the events.

15 Moreover, the finding that Mr. Naletilic controlled the

16 individuals in June and September 1993, as to the forcible transfers in

17 Mostar, that finding, I suggest, is at odds with another finding of the

18 Trial Chamber at paragraph 84, wherein the Trial Chamber specifically

19 found that once ATG units were sent to a front line, and Mostar was a

20 front line, once an ATG unit was sent into operations, they were --

21 the ATGs, and the reason I bring that up, PP704 again, PP704 listed not

22 only purported KB members but also members of ATG units in theory who were

23 subordinated to the KB.

24 This goes to my ground of error 7 -- excuse me, ground of

25 appeal 7, that the -- when the ATG units, once were activated and sent to

Page 92

1 a particular region, the area commander assumed control of them. They did

2 not then -- they took their orders from the area commander, and that's

3 what paragraph 84 found, yet at the same time the Trial Chamber attributes

4 mens rea and 7(3) responsibility to Mr. Naletilic for operations that were

5 conducted after the ATGs were deployed to area commanders. There is a

6 disconnect in that element of control and in the element of mens rea.

7 I'm going to mention now, just as preface to what I expect

8 Mr. Meek to address more fully and that is the testimony of Falk Simang in

9 connection with establishing or, as we say, did not establish mens rea in

10 connection with the unlawful transfers found in paragraph 571, for June 13

11 and 14, and September 29, 1993, that -- and the Chamber asked us a

12 question or may be it was the Senior Legal Officer transmitted a question

13 to us regarding what evidence there was as to whether Falk Simang

14 participated in the June 13/14 transfers from the Mostar area, and the

15 question was what the Trial Chamber -- did the Trial Chamber found that he

16 participate -- did the Trial Chamber find that he participated in those

17 transfers or in those operations.

18 I refer the Court, and I've transmitted this already to the

19 Prosecution in response to a question he asked, that what the Court did at

20 paragraph 556 in relation to the June 13 and 14 transfers is that it

21 referred back to an earlier paragraph, paragraph 91 of the judgement,

22 paragraph 91 in the judgement, where the Trial Chamber found that -- or

23 rather expressly relied on Falk Simang and Ralf Mrachacz to establish

24 that -- to find that Mr. Naletilic had control at all times of all ATGs.

25 So in response to the question asked by the Chamber, the trial

Page 93

1 judgement or the Trial Chamber did not specifically state that Falk Simang

2 was part of the June 13/14 operation there in Mostar but by implication

3 the reasonable inference is, given the fact that they are relying on Falk

4 Simang's testimony to support that Mr. Naletilic was a superior to those

5 who actually did carry out the operation, it's a fair inference that they

6 certainly may have so found, though not expressly concluding.

7 As I said, Mr. Meek will discuss more as to the weight and the

8 credibility of the testimony of Falk Simang.

9 JUDGE POCAR: Just a moment.

10 Judge Schomburg, you want to put a question?

11 JUDGE SCHOMBURG: Thank you, Mr. President.

12 In conclusion of your submissions, is it true that your fall-back

13 position would be that as explained in footnote 233, based on the

14 testimony of your witnesses NQ and ML that KB was a small unit with about

15 60 soldiers only, and are you at odds with the finding of the Chamber in

16 para 48, that there were four professional units, the KB, the Baja

17 Kraljevic unit, Ludvig Pavlovic unit and Ante Bruno Busic unit?

18 MR. HENNESSY: Well, fall-back position, I would not characterise

19 what I'm just guessing as a fall-back position. Our position is, is that

20 Mr. Naletilic, though he was certainly the charismatic founder, and the

21 KB, the Convicts' Battalion vicariously enjoyed his charisma throughout

22 the time period relevant to the indictment, that whether the KB had 282 or

23 60 is of less import to our position than whether Mr. Naletilic knew or

24 had reason to know what the members were doing. That's why I pointed out

25 in the beginning of my discussion of mens rea, that he, as the trier of

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Page 95

1 fact, the Trial Chamber, found, was not the operative commander but an

2 overall commander.

3 Now, perhaps to be more clear, my dispute is with what overall

4 commander means. Our position is that overall commander does not mean

5 that he had the sort of mens rea, the sort of knowledge, knew or had

6 reason to know, as to whoever may have claimed to be a member of the KB or

7 whoever may have claimed to be a member of any ATG unit in theory

8 subordinated to the KB. So the disconnect is not with the numbers but

9 rather with the degree of control and degree of knowledge.

10 Further, as to mens rea, proof of mens rea in Mostar, and this

11 goes to Falk Simang's testimony, I'm speaking now specifically about

12 Count 20, a conviction for plunder under 7(3), Count 20, as to Mladen

13 Naletilic, occurring May 9, 1993. The Chamber based -- the Trial Chamber

14 based its finding that Mladen Naletilic was responsible for plunder based

15 in large part on Falk Simang's testimony which was that he saw Mladen

16 Naletilic, Ivan Andabak, and Mario Hrkac, otherwise known as Cikota,

17 together there on May 9, May 9, 1993, in Mostar, and they, according to

18 Mr. Simang, witnessed people committing plunder, looting homes. It is

19 uncontroverted in the record that Cikota was dead on April 20, 1993. The

20 testimony of Falk Simang is at odds with objective fact. So

21 attributing 7(3) responsibility for plunder based upon Falk Simang's

22 testimony that Mr. Naletilic was present with a dead man on May 9, 1993,

23 should not support a conviction for plunder, and I say that --

24 And here is our interpreter. I thank you -- thank you for the

25 Chamber's assistance.

Page 96

1 Just one brief moment while we sort out --

2 May I continue? Thank you. To conclude as to mens rea, the

3 evidence -- evidence used by the Trial Chamber, that evidence being the

4 testimony of Falk Simang, does not support mens rea -- does not support a

5 finding that Mladen Naletilic knew or should have known about anyone

6 committing plunder in Mostar on May 9, 1993.

7 Moving now to the Rados diary. The Rados diary, our complaints

8 here are at grounds of appeal 6 and 8. Our complaint really here is

9 twofold. One, the document should never have been admitted, even if it

10 was attempted to be admitted in the Prosecution's case in chief. Second,

11 if admissible at all, it certainly should not have been admitted in their

12 rebuttal case. First, and there is -- and I'll admit to this, this trick

13 of rhetoric, and I don't mean that in an accusatory way in a sense with my

14 learned friends from the Prosecution, but I have characterised the Rados

15 diary as a witness statement. I have characterised it as such. By

16 characterising it as such, I say that Rule 92 bis should govern its

17 admissibility or not. The Prosecution has characterised it merely as a

18 document whose admissibility should be gauged by Rule 89.

19 I suggest that my view of the document is more reasonable, and I

20 say that based upon the pervasiveness of the use of the document, the

21 Rados diary, throughout the trial judgement, and that alone gives you an

22 idea as to how the Trial Chamber considered the document. They considered

23 the document as live cross-examined testimony, in my opinion.

24 And if there were any doubt, I suggest that the Chamber review

25 Judge Clark's statements when the trial judgement was presented. In the

Page 97

1 transcript, she refers to Mr. Rados, recall, let's recall first what the

2 Rados diary was purported to be. The Rados diary was purported to be a

3 contemporaneous journal, if you will, by a soldier in the area of events

4 relevant to the indictment. Of course, Mr. Rados never testified at

5 trial. But what Judge Clark said in her statements there in presenting

6 the judgement was that Mr. Rados was a brave and humble man. How could

7 you -- how could -- how is it possible to make such a character judgement

8 if what this really is is a document admissible under Rule 89?

9 What we have here, the way that this document was treated, it was

10 treated as live cross-examined testimony and given that weight throughout.

11 So though, yes, I'm pitching a level of generality and I'm making

12 conclusions from that, that level of generality being that this document

13 was a witness statement which did not comply with Rule 92 bis, nor did it

14 comply with the -- with the practice direction about 92 bis, and let's

15 imagine how the Prosecution could have complied with 92 bis. If they had

16 taken the document, which they had, and presented it to Mr. Rados, they

17 could have had him verify, pursuant to the practice direction for 92 bis,

18 that the statements therein were true in front of an authorised person.

19 That was not done. Given the fact that the Trial Chamber treated this,

20 the fact that the Trial Chamber treated this as cross-examined, live

21 testimony, I suggest that means it should be treated or its admissibility

22 should be reviewed under the guidelines of Rule 92 bis, and as I've

23 already said, Rule 92 bis was not complied with. It should not have come

24 in, in any respect, in any part of the Prosecution's case.

25 JUDGE SCHOMBURG: You made reference to a statement of Judge Clark

Page 98

1 that this man was a brave and humble man. Unfortunately, I haven't found

2 this in the judgement. Characterisation of the diary is to be found in

3 footnote 54. Is it maybe only the oral statement of Judge Clark?

4 MR. HENNESSY: Yes, precisely.

5 JUDGE SCHOMBURG: So it's not in the written judgement.

6 MR. HENNESSY: No, no.


8 MR. HENNESSY: But I'm using her statements to -- and my colleague

9 is confirming it was in -- it was in the summary that she read orally at

10 the time judgement was presented to the Defendants.

11 But I view that as important that that gives us a look into the

12 Chamber's mind and how they were using this document.

13 As I said, it should not have come in at all. But if it were

14 admissible at all, it should not have come in as it did in the

15 Prosecution's rebuttal case. The Celebici Appeals Chamber was very clear

16 on this. Celebici Appeals Chamber says that rebuttal evidence must relate

17 to a significant issue arising directly out of Defence evidence which

18 could not have been anticipated. Could not have been anticipated.

19 I do not now guess what the Prosecution will reply with, but I

20 note for the Chamber that, first, the Prosecution was aware of this

21 document, the Rados diary, PP928, in March of 1998, March 1998. They, the

22 Prosecution, offered a portion of the document at the close of their case

23 in chief. It was not as though they did not anticipate its usefulness if

24 it was useful at all. They were aware of it years before trial began and

25 they offered it in their own case in chief. That it was not entirely

Page 99

1 admitted in -- if -- and my recollection now is that it was not admitted

2 at all in their case in chief but -- that is, a portion of it, it was not

3 admitted in its entirely until the Prosecution's rebuttal case.

4 And again, from the Celebici appeal judgement, it says where

5 proposed rebuttal evidence is itself evidence probative of the guilt of

6 the accused and where it is reasonably foreseeable by the Prosecution that

7 some gap in the proof of guilt needs to be filled by the evidence called

8 by it, it is appropriate -- excuse me, inappropriate to admit it in

9 rebuttal and the Prosecution cannot call additional evidence merely

10 because its case has been met by certain evidence to contradict it.

11 I submit to you that that's exactly why the Prosecution sought to

12 admit this diary, PP928, after the close of their case in chief and in

13 rebuttal, which certainly comes after the Defence case. It was not new

14 evidence, fresh evidence, which the Celebici Appeals Chamber went on to

15 discuss, but it was evidence that they had long knowledge about, March

16 1998. They did anticipate, at least according to its theory, its

17 usefulness. They had offered at least a portion of it in their case in

18 chief. So if it was admissible at all, either under Rule 89 or 92 bis, it

19 should not have come in, it was -- in rebuttal. It was not proper

20 rebuttal evidence. On review, this Chamber should exclude the Rados diary

21 from consideration.

22 Something else that the Celebici Appeals Chamber focused on as to

23 whether something qualifies as proper rebuttal evidence or not was that it

24 does -- does the -- and I've already read a quote but they amplified on

25 it, the Chamber amplified on it. It said that when rebuttal evidence is

Page 100

1 in fact or evidence offered in rebuttal is in fact something used to

2 establish part of the state's case, excuse me, governments, I'm showing my

3 origins, the Prosecution's case, then it's something that should properly

4 be brought in their case in chief and not and rebuttal. The Trial Chamber

5 used this Rados diary repeatedly to establish command responsibility. It

6 was treated by the Trial Chamber as evidence of -- direct evidence of

7 Mr. Naletilic's command responsibility and mens rea.

8 Moving now to mistreatment of prisoners. Moving now to

9 mistreatment of prisoners, which is ground of appeal number 17. And I'm

10 focused on -- and that point, that ground of appeal presented the

11 contention that evidence of torture was insufficient, and I'm going to

12 focus on the convictions for torture under 7(1), not 7(3). The

13 convictions on torture under 7(1) were for Fikret Begic, Witness TT,

14 Witness B, Witness F, and Witness Z.

15 I note first as to Fikret Begic, he did not testify at trial.

16 There was no direct evidence as to any physical pain or the degree of

17 physical pain and suffering suffered or the duration of it. Suggested

18 that the evidence presented was insufficient as to torture. As to also

19 the Trial Chamber convicted Mr. Naletilic under 7(1) of mental pain and

20 suffering as to Fikret Begic, and I note that there is no evidence nor any

21 findings regarding the degree or duration of the suffering of Mr. Begic.

22 The same applies with Witness T. Also Mr. Naletilic was convicted

23 under 7(1) of inflicting severe mental pain and suffering to and on

24 Witness TT, and even as to him, even as to Witness TT, who did testify,

25 there is no evidence of any lasting harm.

Page 101

1 The conviction for torture under 7(1) that I find most troubling

2 is as to Witness B. Witness B was a young man. The evidence was that he

3 was asked some questions and there was a pistol on a desk, but I submit to

4 you that that's -- even if true, that does not torture make. Torture,

5 even from -- the jurisprudence of this Tribunal and from all historical

6 documents leading to the Statute of this Tribunal, torture is the worst of

7 the worst. And Witness B, in what he testified to, simply did not bring

8 the Prosecution there.

9 As to Witness FF, he testified that he was struck three times and

10 Mr. Naletilic ordered him to stop. No evidence of degree of harm, no

11 evidence of duration of harm, as to Witness FF, evidence of torture,

12 insufficient.

13 Similarly as to Witness Z, just no evidence of duration, no

14 evidence of degree.

15 The vagueness of the indictment, ground of appeal number 12, and

16 also the Chamber had asked us to address more fully vagueness of the

17 indictment with respect to the Ljubuski prison allegations.

18 The indictment -- I'll begin first with the Mostar events, the

19 Mostar events, those being the allegations of forcible transfers alleged

20 in Count 18, do not -- what was alleged in Count 18, paragraph 54, did not

21 give sufficient notice that Mr. Naletilic was going to have to defend

22 against transfers under 7(3) -- that his -- that responsibility was going

23 to be attributed to him under 7(3) for transfers occurring on June 13

24 and 14 and September 29, 1993.

25 What the actual -- what the actual language of the indictment said

Page 102

1 was that Mladen Naletilic and Mr. Martinovic were responsible for and

2 ordered the forcible transfer of Bosnian Muslim civilians that started on

3 May 9 and continued at least -- until at least January 1994. Skipping

4 ahead, it was alleged that two large waves of forcible transfers took

5 place in May and July 1993. No where does it say which ATG units were

6 responsible for what transfers. No where does it say on what date was

7 Mr. Naletilic either responsible under either 7(1) or 7(3).

8 This Chamber in particular is well aware of the general

9 requirements for indictments set out in the Blaskic appeal judgement. I

10 won't trouble you with those. This Chamber certainly is well aware of it.

11 The -- I make special note that the allegation was that forcible

12 transfers -- two large waves of forcible transfers took place in May

13 and -- excuse me, July 1993. There were four key episodes dealt with by

14 the trial judgement. Dealing with forcible transfers from Mostar: May 9,

15 May 25, June 13/14, and September 29, 1993.

16 Mr. Naletilic was acquitted of the May events.

17 And here is where I'm getting to perhaps the harm in the

18 particular allegations, that we were focused, the Defence would have been

19 focused on May and July, saying that those were two particularly large

20 waves of transfers occurred, you'll note that from the evidence presented,

21 Mr. Naletilic was acquitted of the May events, there was no evidence

22 presented on any July events, the events that he's convicted of are

23 mentioned, if they are at all, in the broad stroke that evictions took

24 place between May and January, May 1993 and January 1994. That's not

25 sufficient notice. It wasn't sufficient notice to trigger the possibility

Page 103

1 of conviction for events which occurred June 13/14, 1993 and September 29,

2 1993.

3 I perhaps -- it does me no harm to concede that if he had been

4 convicted of the May problems then there would have been sufficient

5 notice, given the fact that they said there were large waves in May. But

6 that's not what we are dealing with here. We are dealing with June and

7 September which are beyond any sort of specificity provided by

8 paragraph 54 of the indictment.

9 Moving now to the vagueness of the indictment with respect to

10 Ljubuski prison, a point which are we raise at paragraph 176 in our brief.

11 The indictment suffers from -- it's similarly defective as to allegations

12 regarding Ljubuski prison. What was alleged, and you have to put two

13 paragraphs of the indictment together to decipher it, but the allegation

14 was that beginning -- and this is paragraph 54 of the indictment, that

15 beginning in May of 1993, going through January 1994, that -- now this is

16 paragraph 50, that beatings and tortures were also inflicted at other

17 detention centres and camps under the authority of the HVO, not KB, under

18 the authority of the HVO, such as the Ljubuski prison and the Heliodrom.

19 The Blaskic appeal judgement said that -- and I'm paraphrasing,

20 that if -- one requirement, one of many requirements in alleging 7(3)

21 liability is that you show -- the Prosecution show who was under control

22 of the accused. They are talking about prisons under the control of the

23 HVO, not prisons under the control of the KB. That does not convey how

24 Mr. Naletilic was responsible under 7(3). I'm talking about 7(3) only

25 because he was not found guilty under 7(1) for events at Ljubuski prison.

Page 104












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Page 105

1 But from the indictment it is impossible to decipher at what point

2 throughout that broad period of time, May 1993 to January 1994, the

3 Prosecution was contending that he was responsible under 7(1) or under

4 7(3), and as to 7(3) who he was in charge of at the time, any crimes were

5 committed by any alleged subordinates.

6 Reflecting on what we now know about Ljubuski prison, that is that

7 the trial judgement was wrong when it identified Ivica Kraljevic as warden

8 during all relevant periods. Knowing what we know now, if the Prosecution

9 had made some allegation that the Ljubuski prison was under the control of

10 a KB member, we might not even be here at all talking about convictions

11 for Ljubuski prison. What the Blaskic appeal judgement talked about was

12 that the Prosecution -- the Prosecution should not be allowed to develop

13 its case as the trial proceeds, that notice is notice is notice, that the

14 indictment defines what the evidence can be, what is admissible, what is

15 relevant, and it defines what an accused may be convicted of. They did

16 not accuse, I say they, the Prosecution did not accuse Mr. Naletilic with

17 any degree of specificity for being in control of Ljubuski prison in any

18 way, nor do they accuse him of being specifically responsible for those

19 who may have committed any crimes within Ljubuski prison.

20 I'm certain I'll have more to answer when the -- after the

21 Prosecution's reply. I have tried to be concise and direct with my

22 portion of my presentation now.

23 I will make one brief comment now about sentence but I would

24 expect to come back to that at the end.

25 May I have one moment, please?

Page 106

1 [Defence counsel confer]

2 MR. HENNESSY: I just make this observation, and I apologise to my

3 colleague, Mr. Kerns, it's based on information that he has shared with

4 me. I provide this to the Chamber as something to -- as food for thought,

5 if you like.

6 As of I believe February of this year, there have been something

7 like 53 individuals convicted and sentenced by the Tribunal. Of those 53,

8 no more than from -- of that number, no more than ten have received a

9 sentence greater than 20 years, the sentence which Mr. Naletilic received.

10 I believe that the number is something like five or six who have received

11 an equivalent sentence.

12 Based upon the evidence, based upon even the findings of the Trial

13 Chamber, which certainly we have disputes about, but even on the findings

14 of the Trial Chamber, placing the conduct found by the Trial Chamber along

15 a continuum of the convictions and sentences meted out by this Tribunal,

16 20 years is not in step, that, as I said in my opening remarks, a sentence

17 of no more than eight years is appropriate and I suggest perhaps even

18 less, depending on how the Chamber reviews some of our challenges.

19 With that, I submit the floor to Mr. Meek.

20 JUDGE POCAR: Thank you, Mr. Hennessy.

21 Mr. Meek, please.

22 Sorry, before Mr. Meek starts, Judge Guney would like to raise a

23 question. Please.

24 JUDGE GUNEY: Thank you, Mr. President.

25 [Interpretation] Mr. Hennessy, you stated that your client was the

Page 107

1 overall commander and he had a lot of charisma but he was not an

2 operational commander. That's what you said. As a result, there was no

3 reason for him to know what had happened in other locations. Is that

4 true? Is that the case? You repeated that, it seems to me, several times

5 throughout your submissions. Therefore, I would like to know what is your

6 point of view, your vision, of the relationship between the operational

7 commander and the overall commander, because there are ways of submitting

8 reports from the operational commander, and there are ways for the overall

9 commander to receive appropriate information relating to what is happening

10 around in his area of command.

11 MR. HENNESSY: The way I can think best to respond to that is in

12 my sense of saying, my interpretation of the evidence, is that at best, at

13 best, Mr. Naletilic could be viewed as a -- as we've already talked about

14 as a charismatic figure in relation to the KB perhaps, even drawing

15 recruits to the KB though he were not an operational commander of it.

16 Number 1. Number 2, that perhaps, and I -- perhaps the evidence also

17 supports that some operational commanders may have had discussions with

18 Mr. Naletilic. That sort of relationship, that they knew each other or

19 maybe even had discussions of events, is different than being an

20 operational commander or being a commander as to events on the ground.

21 So how best to answer your question? I'd say that his connection

22 to what actually happened, and let's even make this assumption from the

23 evidence. Let's assume that he had the type of influence, the type of

24 authority, the type of power, where, if he had known he could have

25 prevented a crime from happening or if he had known or had reason to know,

Page 108

1 he could have punished it after the fact, because he was not operational

2 commander, he was not in a position to know or have reason to know before

3 anything had happened, or even after it took place. He was not in a chain

4 of command where reports should have been coming to him as they would to

5 an operational commander.

6 So he certainly was the founder of the KB. He certainly was the

7 life-blood of it for a period of time but then that torch passed by the

8 time of this conflict.

9 Have I -- is there anything more, Your Honour?

10 JUDGE GUNEY: [Interpretation] So according to your interpretation,

11 the overall commander has no way of knowing anything before or after the

12 events? He has no way of knowing what is going on within the area of

13 responsibility of the operational commander. Is that what you're telling

14 us?

15 MR. HENNESSY: Direct response to your question is, if an overall

16 commander truly is an overall commander, then, yes, I would say that he

17 should know or have reason to know. But I'm not saying that -- our

18 position here is that Mr. Naletilic was not that type of overall

19 commander. This was not a well-defined, ordinarily established perfect

20 chain of command where you have Mladen Naletilic, deputies and people

21 below, and reports went up, reports went up and orders went down. We

22 don't have that. Things were not that organised.

23 So, in answer to your question, if an overall commander is truly

24 an overall commander, then yes, I would be foolish to say that that 7(3)

25 liability could not be attributed. But that's not what we have here. My

Page 109

1 dispute with the trial judgement is they placed the label, they placed the

2 label of overall commander on Mr. Naletilic without sufficient supporting

3 evidence for him to be truly an overall commander.

4 And I just bring you back, I won't reiterate, back to the mens rea

5 element that I've addressed in relationship to Ljubuski and Mostar. Those

6 are indicative of the fact that he could not and did not have knowledge

7 and he had no reason to have knowledge is indicative that he's not the

8 type of overall commander that he was labelled by the Trial Chamber.

9 So I hope that answers your question.

10 JUDGE GUNEY: [Interpretation] Thank you.

11 MR. HENNESSY: Yes, sir.

12 JUDGE POCAR: Thank you, Mr. Hennessy.

13 Mr. Meek, please.

14 MR. MEEK: Thank you, Your Honours, may it please the Appeals

15 Chamber, just to follow up briefly with Judge Guney's question to

16 Mr. Hennessy, a large amount I think in the record and judgement, trial

17 judgement, even supports this, that a lot of Mr. Naletilic's charisma

18 and -- in the area in Herzegovina that this indictment entails, grew from

19 his actions with the HVO in 1992, when the Bosnian Croats and the Bosnian

20 Muslims were fighting side by side and against the Serb aggressor in the

21 Neretva Valley and they pushed the Serbs back out of Mostar. I think

22 there was evidence submitted, and the trial judgement speaks of that

23 action, and Mr. Naletilic therefore became something of a legend, the

24 Prosecution witnesses mentioned that, that he -- other one submission that

25 he was some sort of myth. Everybody had heard about Mr. Naletilic, Tuta.

Page 110

1 And it grew because of the June dawn operation where the HVO in July

2 August of 1992, being composed of Muslims and Croats from

3 Bosnia-Herzegovina expelled the Serb aggressors on that occasion. Even

4 though that was a fact, we will address this additionally when we talk

5 about mitigation at some point and probably not this morning. That again

6 was a find -- facts that were in front of the Trial Chamber which were

7 uncontested, so to speak. Yet the Trial Chamber found there were

8 absolutely no mitigating factors whatsoever in Mr. Naletilic's case. And

9 again we can address that later when we have sufficiently more time and we

10 will have more time this afternoon, and I notice on the schedule that we

11 also have an hour tomorrow in two half-hour shifts.

12 Your Honours, may it please the Chamber, I am Chris Meek. I'm an

13 attorney from Baxter Springs, Kansas. I had the privilege to represent

14 Mr. Naletilic in the trial of this matter which commenced on

15 September 10th, 2001 and was completed on the 31st of October, 2002.

16 It is a privilege to be here today to address Your Honours on the

17 issues which we've raised on appeal. We believe these issues to be many

18 and we believe that they are important.

19 As Mr. Hennessy indicated, I plan to speak about unlawful labour,

20 which was known as the canal project in this case. I plan to speak about

21 plunder, the issue of plunder, in Mostar, the issue of the lost Mostar

22 court file and of course related cumulative errors of the Trial Chamber,

23 the search warrant issue, and the testimonies of Falk Simang in particular

24 and Ralf Mrachacz, the two German witnesses who came before this Tribunal.

25 We believe, Your Honours, that the Trial Chamber utilised to a

Page 111

1 large extent three pieces of evidence, so to speak, two pieces of evidence

2 which Mr. Hennessy has discussed so far, P704, the infamous I call it 704,

3 the Convicts' Battalion list, allegedly the list that was unsigned, that

4 was seized from the tobacco station in Siroki Brijeg, that was used

5 extensively by the Prosecution after its admission over the objection of

6 the Defence, based on a search warrant issue, the Rados diary, which

7 Mr. Hennessy has discussed, and then the testimony of Falk Simang for the

8 most part and Ralf Mrachacz to a lesser degree.

9 As Mr. Hennessy had indicated -- some of these items, Your

10 Honours, and a lot of them are intertwined -- excuse me.

11 [Defence counsel confer]

12 MR. MEEK: Come back to 704 in a moment.

13 Your Honours, the Trial Chamber found Mr. Naletilic guilty of

14 Count 5, unlawful labour, in violation of the laws or customs of war,

15 under Article 3 of the Statute, and this was in the context of a digging

16 of a trench in the vicinity of Tuta's home in Siroki Brijeg,

17 Bosnia-Herzegovina.

18 The Trial Chamber did at paragraph 322 of the judgement correctly

19 find that there was contradicting evidence, and the Chamber said it was

20 not satisfied that the digging of the trench was for a private purpose,

21 namely the construction of a water-pipe to supply the villa. The reason

22 that's important, we agree with that, but you got to -- you have to

23 understand that this also ties in with vagueness of the indictment.

24 Throughout the trial of this matter and the case in chief, the

25 Prosecution's case in chief, the witnesses who came forward to testify

Page 112

1 concerning this canal project all testified that they were told that it

2 was being dug as a water supply for Tuta's house or villa, as it was

3 defined.

4 Another witness, I think NH, or NI, finally defined Tuta's house,

5 said it was about a normal house, and half the homes in Siroki Brijeg were

6 larger and nicer. It wasn't a villa but irrelevant.

7 The point being is that during the trial and the vagueness of the

8 indictment we were never sure what we were being charged with. In the

9 indictment, we were charged with having used detainees to construct a

10 swimming pool at Tuta's villa. The Trial Chamber correctly found Tuta not

11 guilty found -- found that in fact the swimming pool they were talking

12 about was a city swimming pool in Siroki Brijeg. It wasn't even a

13 swimming pool located on my client's property.

14 Your Honours, in regards to Count 5, unlawful labour, in one hand

15 the Trial Chamber says there is contradicting evidence and it nonetheless

16 found him guilty under Article 7(3) as being a superior and it relied on

17 the testimony primarily of two witnesses, CC and DD.

18 And by -- from those two witnesses, the Trial Chamber indicated it

19 was satisfied that Mladen Naletilic knew or had reason to know that the

20 detainees were subjected to conditions susceptible to render the labour

21 unlawful.

22 Now, at paragraph 325 the Trial Chamber found that the conditions

23 of labour constituted a sufficiently serious violation of the rule of

24 humanitarian law to fall within the ambit of Article 3 of the Statute.

25 Again, we submit that this was based solely upon the testimonies of

Page 113

1 witnesses CC and DD. And if you look at that testimony from those

2 witnesses and all the other evidence concerning what I call the canal

3 project, the unlawful labour conviction, there was no evidence of any

4 direct involvement or direct criminal liability under Article 7(1) by

5 Mr. Naletilic. They found that he had visited the construction site on

6 several occasions and had been seen talking to the guards while the

7 prisoners were working. That's at para 326 of the trial judgement.

8 Your Honour, a close review of the evidence relied upon to make

9 this finding is that the Trial Chamber ignored, without any explanation

10 whatsoever, the evidence that it heard from Defence witnesses NH and NI.

11 In short, Judge, Your Honours, they -- the Trial Chamber has found

12 Mr. Naletilic guilty under 7(3) merely because the home where he lived in

13 Siroki Brijeg, unfortunately for Mr. Naletilic, happened to be within 400

14 to 500 metres from where this trench was being dug. The confusion in the

15 Prosecution's case was that everyone was setting forth that this was a

16 trench being dug up the hill by using this detainees as labourers to put

17 water into Tuta's home. Well, we finally found out, no, that's not right

18 and the Trial Chamber so found.

19 But NH and NI, both testified. NI specifically was an

20 interpreter, was asked by the municipality and the first Brigade of the --

21 1st Brigade of the Siroki Brijeg Brigade, which was a volunteer unit in

22 Siroki Brijeg, because he was an interpreter also, so they asked him would

23 you please go ask some of the detainees and speak with them at the tobacco

24 station to determine whether or not they would mind volunteering to join

25 in some action in digging a certain canal or trench.

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Page 115

1 NI was a home guard and he testified that he, along with three

2 others, were there to prevent any kind of maltreating of the detainees.

3 Of course, NI testified there was no maltreatment. He testified that none

4 of them were forced to work, normally ten to 15 would go per day. It's

5 about a six-week time period when NI was watching the detainees. They

6 would go in the morning, they would take a break during the day, come back

7 in the afternoon, they were digging, removing material, cutting

8 surrounding bushes. NI testified that they had food, it was common

9 military food that the soldiers, HVO soldiers ate. It came from the

10 military kitchen where it was prepared. During the work, the detainees

11 regularly received cigarettes, sometimes even beer. He did say it was

12 very hot. And people usually work in that manner by taking a little time

13 off during the middle of the day.

14 Now, there was also testimony that -- from Witness NI that from

15 the location where the work was starting, there is no chance to see

16 anybody's house, let alone Mr. Naletilic's house.

17 Could we go into closed session for just a moment? Private

18 session, I'm sorry.

19 JUDGE POCAR: Yes, we can go in private session.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 116

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

7 THE REGISTRAR: Your Honour, we are in open.

8 MR. MEEK: Thank you very much, Your Honours.

9 Briefly again on the canal project, Witness NH testified that in

10 the summer of '73, he knew and had some indirect relationship or knowledge

11 of Sir Martin Garrod who was with the British battalion in Herzegovina at

12 that time. He indicated that he and Mr. Martin Garrod had been talking,

13 and he asked Martin Garrod about what to do with certain detainees, what

14 could you do with them, instead of having them sit around all day. The

15 testimony was that Sir Martin Garrod, who was also a Prosecution witness

16 in this case, indicated to him that that would be good, that it would give

17 people something to do in order to make their day go quickly, as long as

18 you don't jeopardise their human rights.

19 Garrod told this witness that they could not be forced to work but

20 they could work if they wanted to work. This witness reconfirmed that the

21 detainees did want to work, also testified that they had bigger rations of

22 meals and other things.

23 Your Honour, Witness BB, as set out in footnote 873 of the

24 judgement, we submit that no reasonable tribunal of fact, no reasonable

25 finder of fact, could find guilt beyond a reasonable doubt that Tuta was

Page 117

1 guilty under Article 7(3) for any labour, for two reasons. One, all of

2 these witnesses basically just testified, well, we were forced to work,

3 the Trial Chamber found that that sort of work isn't necessarily illegal.

4 However, because of the arduous conditions, the work was unlawful. We

5 believe, Your Honours, that all these witnesses basically testified, took

6 us to work about 8.00, we came home about 5.00, they fed us, and it was

7 pretty hot. It was the summer-time in Bosnia. It was hot. That was the

8 extent of it.

9 Now, assuming, arguendo, assuming without admitting, that this

10 is -- rises to the level of the seriousness for a war crimes charge, then

11 what we want to know is where is the evidence that Mr. Naletilic would

12 have specific information about the conditions or that any of his

13 subordinates were forcing this labour. The home guards of the

14 Siroki Brijeg Battalion and the municipality were the ones who organised

15 the labour - and it's in the record - not the Convicts' Battalion. And,

16 again, assuming arguendo that Mr. Naletilic was some overall commander, or

17 had any effective control, we believe, Your Honour, and the reason that no

18 reasonable finder of fact could find guilt beyond a reasonable doubt and

19 to uphold this conviction would be a miscarriage of justice is because the

20 record is devoid of any evidence that Mr. Naletilic was ever put on

21 notice, other than the fact of the testimony of BB or DD that says we were

22 at the bus, we were getting-- we were leaving that day, we saw the bus --

23 I saw the bus driver talking to Mr. Naletilic about 15 metres away, didn't

24 hear what they were talking about.

25 Another, CC, testified that he'd see Tuta one or two times - this

Page 118

1 is in a six-week period - close to the work site.

2 DD we believe embellished his testimony concerning the one time he

3 saw Tuta, because in his first statement you'll see that he said Tuta was

4 in civilian clothes. That it was in 1996. After the Office of the

5 Prosecutor started questioning him, all of a sudden -- or when he came to

6 court Tuta was in a military uniform on the one occasion. So his

7 testimony is embellished, couldn't be believed.

8 But what the Trial Chamber has done has inferred, has just

9 inferred, that Tuta had knowledge of what was going on. Now, just because

10 you see Tuta around the work site is irrelevant. Any citizen in

11 Siroki Brijeg might be by the work site or where the detainees were

12 working on any given day.

13 What could Tuta have known to make him guilty under 7(3)? Is

14 there any evidence that Mr. Naletilic knew the hours of the labour? No.

15 Is there any evidence that he knew the extent of the labour, what they

16 were making them do? No. Is there any evidence that Mr. Naletilic knew

17 the amount of the food that was given to the detainees when they were

18 working? No. Is there any evidence that Mr. Naletilic knew whether they

19 had volunteered to work or were forced to work? No. The only thing

20 really that Mr. Naletilic could know, assuming you believe, assuming you

21 take for granted that these witnesses told the truth, DD, CC, BB, well,

22 Mr. Naletilic, when he saw the detainees getting ready to get on the bus

23 that one day, well, he would know one thing. I guess he would know that

24 the temperature was either hot or cold that day. That's basically all he

25 would know. Everything else the Trial Chamber did to find him guilty

Page 119

1 of 7(3) is that they just imputed it.

2 Your Honour, this goes over and over. In this case, we will talk

3 about it more. The Trial Chamber, we submit, took our -- when they got to

4 the guilt phase, after the 98 bis motion, when they got to the guilt

5 phase, was he guilty beyond a reasonable doubt or not, the Trial Chamber

6 over and over and over, adduced the evidence in a light most favourable to

7 the Prosecution, when in fact we believe the proper legal standard is that

8 that guilt phase, the trier of fact must find in any conflicting evidence

9 situation, all evidence must be viewed in a light most favourable to the

10 accused, which they didn't do.

11 In sum - I know we are getting ready to break, Your Honours - they

12 misapplied the fact that this would be -- this is even a -- there was a

13 serious nature to this work, and there was absolutely no evidence that

14 Tuta was in a position to have effective control over those folks or even

15 know what was going on, other than the fact of the one incident or two

16 incidents where they claim they saw him and he would know what the

17 temperature was. But all the rest, the record is devoid of it, and the

18 trial judgement made a leap of faith, once again, to get to a point to

19 find him guilty under 7(3).

20 Thank you.

21 JUDGE POCAR: I thank you, Mr. Meek.

22 Any questions from my colleagues? No.

23 Well, if it's not the case, I think it's the right moment to

24 break. We reconvene at 10.20, in 30 minutes. Sorry, 11.20. I'm not

25 looking well at the clock. I'm very sorry.

Page 120

1 We will adjourn.

2 --- Recess taken at 10.50 a.m.

3 --- On resuming at 11.23 a.m.

4 JUDGE POCAR: We will now continuing the hearing on Naletilic

5 appeal, with the response by the Prosecution. The Prosecution will have

6 one hour and 30 minutes for their response.

7 MR. MEEK: May it please the Court, during the break my client

8 wanted to make a request so that the Appeals Chamber could consider it

9 between now and tomorrow. He's been allotted 15 minutes in which to make

10 a statement, and he's indicated that he would like to have a little more

11 than 15 minutes, if that's possible, and he indicates that he believes

12 Mr. Martinovic will only use about seven minutes. But in any event, I'm

13 just bringing that up. My client requested I pass that on to the Appeals

14 Chamber to ask if it's possible if he have approximately 25 minutes to 30

15 minutes tomorrow. Thank you.

16 And I would also say that due to the time period that I was able

17 to speak, there are still issues I'll talk about, but I'll do that this

18 afternoon.

19 Thank you.

20 JUDGE POCAR: The Appeals Chamber will consider that when we give

21 the schedule for tomorrow.

22 Mr. Kremer, you have the floor.

23 MR. KREMER: Yes, firstly in response to Mr. Meek's comment about

24 continuing his argument this afternoon, I have a problem with that, and I

25 would hope Your Honours have a problem with that from the point of view

Page 121

1 that it doesn't allow me an opportunity to respond to issues that should

2 have been raised in his remarks this morning. I would hope that the reply

3 that is permitted would be a reply to any new issues that I've raised in

4 my responses.

5 Dealing with the command responsibility that Mr. Meek raised this

6 morning, and I can indicate that I will be dealing with command

7 responsibility, mens rea, the search warrant issue, the vagueness of the

8 indictment, and Mr. Wirth will be dealing with the Rados diary, the Simang

9 testimony, mistreatment of prisoners and forced labour.

10 In terms of command responsibility, it is our position that there

11 was ample evidence before the Trial Chamber to support the finding that

12 Naletilic was the true commander and effective commander of the Convicts'

13 Battalion. The Trial Chamber judgement starts talking about the Convicts'

14 Battalion at paragraph 82 and continues on through to and including

15 paragraph 175; and paragraphs 160 to 163 deal with Mr. Martinovic's role

16 in the command structure and in respect to the Vinko Skrobo ATG subunit of

17 the Convicts' Battalion.

18 The difference between operative commander and overall commander

19 that Mr. Hennessy referred to this morning at the commencement of his

20 remarks, I think was taken out of context because he refers to the words

21 operative commander, in 96 where in the second sentence the Trial Chamber

22 talks about Ivan Andabak taking over as operative commander of the

23 KB Siroki Brijeg, and operative commander of that unit does not imply and

24 should not be taken to imply that the operative command of that unit was

25 not held by Mr. Andabak.

Page 122

1 What is important is that the Defence witnesses suggest that

2 another person was also the operative commander in addition to Mr. Andabak

3 at Siroki Brijeg but the overall commander of the Convicts' Battalion,

4 Mr. Naletilic, had his office at the tobacco station at -- in

5 Siroki Brijeg. But, in terms of the evidence itself, you will see that

6 the footnotes from 207 to 491 amply detail the evidence that relates to

7 the finding that the Convicts' Battalion was controlled by Mladen

8 Naletilic and that he was the overall commander and true commander for

9 both operational purposes and in situations involving the carrying out of

10 actions against various places in the Mostar region.

11 In terms of command responsibility, the Appellant submits that if

12 one were to examine the record, one would have doubt about the command

13 responsibility finding because it was based solely on or primarily on

14 Exhibit 704, the list of members of the KB in November of 1993, the

15 testimony of Falk Simang, and the Rados diary, which is Exhibit 928. The

16 examination of the Trial Chamber's judgement in the paragraphs listed, 92

17 through 175, shows that this is not accurate. That there is a

18 misunderstanding as to the weight placed on these documents and, in fact,

19 the testimony is full of witnesses other than Falk Simang who testified as

20 to the command responsibility held and exercised by Mr. Naletilic, the

21 transcript is -- and the record is complete -- or is full of documents

22 which confirm the command responsibility held and exercised by

23 Mr. Naletilic. And if one carefully examines the footnotes relating to

24 Exhibit 704, the Trial Chamber did not use those references to the pay

25 list of November to confirm that the people were members of the Convicts'

Page 123

1 Battalion before that date. They used the reference to confirm that they

2 were still members of the Convicts' Battalion on that date. They used

3 other evidence, witness testimony, and other evidence, to confirm that

4 these people were members of the Convicts' Battalion at the time that the

5 crimes were committed. And that is clear when one examines the footnotes

6 as to the units of the Convicts' Battalion, in particular the references

7 to the various individuals that start at footnote -- at paragraph 96 and

8 go on through to and including paragraph 115. The footnotes include

9 references to witnesses, to documents, and to occasionally the salary list

10 confirming that the person was still a member of the unit in November of

11 1993.

12 So a careful analysis of the Trial Chamber judgement belies the

13 submission made by the Appellant that the Trial Chamber misused

14 Exhibit 704 in order to find membership when the crimes were committed.

15 In fact, that is not the case. It used it to confirm the evidence of the

16 witnesses that testified plainly that the members of the KB committed the

17 crimes, including Mr. Naletilic, and used the document to confirm that

18 they were in fact members still by November of 1994.

19 It also confirms the structure of the unit in November of 1994,

20 which is consistent with the structure of the unit according to the

21 testimony of the various witnesses who testified as to their contact with

22 it.

23 In terms of command responsibility, an independent witness

24 mentioned this morning by Mr. Meek, Sir Martin Garrod, testified as to the

25 command responsibility of Mr. Naletilic. His evidence is clear that when

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Page 125

1 he met Mr. Naletilic, he introduced himself as the commander and, in fact,

2 had the impression that he was in charge of the Convicts' Battalion. In

3 fact, he was told he had charge of the Convicts' Battalion and was the

4 impression that he had significant responsibility in the region.

5 In terms of the Rados diary, if you look at the footnotes that

6 relate to the structure of the Convicts' Battalion, the Rados diary has

7 very little significance at all to determining the structure of the

8 battalion, the membership in the battalion, and the command responsibility

9 of Mr. Naletilic. In fact, the Rados diary is supportive of the evidence

10 of all of the witnesses, and its usefulness by the Trial Chamber was for

11 the purpose of confirming the testimony and, in fact, filling in some

12 details of what transpired between certain events that the witnesses

13 hadn't testified to, but those details are not significant in terms of the

14 findings underlying the convictions.

15 In respect of Falk Simang, again, an examination of the testimony

16 of Falk Simang will demonstrate that he was a credible witness, and my

17 colleague, Mr. Wirth, will speak about that. I just want to say that in

18 an analysis of the -- in an analysis of the footnotes that make reference

19 to the command responsibility, Falk Simang does not figure significantly

20 in those footnotes. The testimony of other witnesses was referred to.

21 And generally speaking, when one looks at the footnotes, Falk Simang is

22 one of the many witnesses who was testifying as to the same event. So

23 that there is substantial evidence confirming the evidence of the crime,

24 and Falk Simang generally is a witness who is supportive as an insider of

25 what actually took place at the various events.

Page 126

1 The question relating to question five, dealing with the command

2 responsibility for Sovici/Doljani, suggests that the role of

3 responsibility of the HVO brigades, Herceg Stjepan, is not a significant

4 factor in determining Naletilic's role with regard to the various troops

5 deployed for the purposes of the Sovici/Doljani operation. Our position

6 is that the evidence is overwhelming, particularly the documentary

7 evidence, that the finding by the Trial Chamber that Mr. Naletilic was

8 responsible for the Sovici/Doljani incident is clear and unequivocal. I

9 will refer you briefly to some of the documents, and many of the documents

10 are referred to by the Trial Chamber in support of its conclusions. As

11 early as April 15th, 1993, three days before the Sovici action, Exhibit

12 number P299.1, an order states: "Pursuant to the agreement with commander

13 of the southwest zone of the HZ community, Brigadier Mico Lasic, with

14 coordinator of Herceg-Bosna, Mladen Naletilic, Tuta, with representatives

15 of the Main Staff, Colonel Ivan Andabak, I issue hereby the following

16 order," and then it directs a certain reconnaissance team and platoon to

17 be at a location in Sovici on April 15th, 1993.

18 So it is clear that he is involved in the attack, and it becomes

19 clear with the next report that is going to the forward command post, that

20 one was to the HVO Brigade Kralj Tomislav, and this is Exhibit P301.1, it

21 details the preliminary steps for the Sovici/Doljani raid. And item

22 number 7 on page 2 talks about coordinating with Tuta is being done

23 through the Posusje unit in the Sovicka Vrata. More telling, however, is

24 the document referred to by the Trial Chamber at paragraph 130 of the

25 trial judgement, and this is a confidential document that is quoted, which

Page 127

1 shows that the person -- the offensive is being directed by a person of

2 substantial political, economic and military influence, someone who is

3 tired of signatures and political treaties, hence he has no wish to uphold

4 the cease-fire agreement struck between the ABiH and the HVO. This person

5 is known as Tuta and has chosen two collaborators he had with him in

6 Operation Bura, namely Ivan Andabak and Brigadier Lasic.

7 Now, on May 7th, a report is sent to the Herceg Stjepan Brigade

8 which comments about the events relating to Sovici, and the author of the

9 report, Blaz Azinovic, says in the middle of P368: "By order of Vlado

10 Curic, Mr. Tuta's commissioner, the transport of prisoners of

11 Sovicka Vrata, together with civilians (women and children), began around

12 1600 hours on May 5th, 1993. From there, in the presence of Mr. Vlado,

13 they were taken to Gornji Vakuf under guard by buses which were waiting

14 for them there."

15 Next paragraph, and this is the important one: "Throughout the

16 operations," and he's talking about earlier in his memorandum you will see

17 April 17th and April 19th, "the conduct of our army was fair and careful

18 so that we did not have any wounded or dead soldiers," and here is the

19 important sentence, "Mr. Tuta commanded the overall operation in this

20 area, Risovac, Sovici and Doljani, in which troops from elsewhere also

21 took place such as, for instance, the Convicts' Battalion the Poskok Viper

22 Battalion, the Grdani, the Posusje mortarmen and others whom I do not know

23 very well."

24 That's found in paragraph 129.

25 And that's documents illustrate quite plainly that Mr. Naletilic

Page 128

1 had command responsibility as the Trial Chamber found for the Sovici

2 operation and the witnesses also confirm that.

3 You can look at the testimony of Witness E at page 4513. You can

4 look at the testimony of Mr. Mrachacz at page 2698, confirming that

5 Mr. Tuta ran the meetings, or used his deputies, that the orders to use

6 the Bofors came from page -- from Tuta on page 2729. And also the

7 Witness RR, when talking about the Sovici raid: "I knew that Tuta was

8 attacking us because Dzemal Ovnovic had said that Tuta had called him to

9 surrender and we were captured. They said that they had to return us over

10 to Tuta."

11 And that's found at page 2730.

12 There are other documents, and I'll just list them which all

13 confirm that Mr. Naletilic was the commander of the Convicts' Battalion

14 and the ATG groups. Exhibit 418, which is an order issued by

15 Mr. Naletilic, authorising Stipo Polo to have authority to control and

16 prevent all criminal activities in the areas of Doljani, Sovici, Risovac

17 and Vrata Cvrsnice and the right to arrest and liquidate them, as

18 written. And special attention should be given to theft of lumber and

19 cattle rustling.

20 If Mr. Naletilic didn't have control, then this document has no

21 meaning.

22 There are other documents. Exhibit P474. Exhibit 470, which is a

23 report which suggests that Tuta's men are involved in a particular combat

24 action. Exhibit 548, in July of 1993, where Bruno Stojic, the chief of

25 the department of Defence for the Republic of Bosnia-Herzegovina is

Page 129

1 commending a variety of groups for their courage, combat readiness and

2 morale shown in the successful battles of Gornji Vakuf and around

3 Gornji Vakuf. "I hereby publicly commend the Convicts' Battalion headed

4 by Tuta."

5 There is no doubt that Mr. Naletilic was in fact the commander of

6 the Convicts' Battalion at all of the material times in the indictment.

7 Finally, Exhibit 611, another commendation "for extraordinary

8 valour and combat skill displayed during the combat in Rastani and in the

9 fighting for the Mostar hydroelectric plant, I hereby cite the Convicts'

10 Battalion and its commander, Tuta."

11 Exhibit 602 is supportive of the fact that Tuta's forces are to be

12 involved in attacks in the Mostar area and that they have a specific role

13 to play. The documents clearly show that there is a wealth of evidence

14 that the command responsibility, the overall command responsibility, for

15 the Convicts' Battalion and the ATGs fell under Mr. Naletilic and the

16 basis for the inferences to be drawn from his command responsibility in

17 respect of the 7(3) counts is to be taken from those facts and from the

18 testimony of the witnesses.

19 Now, this morning, Mr. Hennessy spoke about the lack of knowledge

20 of what was going on in the area of the Ljubuski prison and in Mostar, and

21 in particular the beatings that were taking place there. I just want to

22 point out that the context for knowledge and responsibility that first

23 finds its way into the judgement, at - excuse me - I believe it's 428,

24 which is the paragraph complained about. Yes, 428, the basis of knowledge

25 being the transport of the prisoners from Sovici to Ljubuski prison. The

Page 130

1 knowledge of Mr. Naletilic about the conduct and treatment of his men

2 flows not only from the incident with the bus. The incident with the bus,

3 you will remember, is an incident where prisoners were being beaten while

4 the bus is broken down. Mr. Naletilic encounters the bus having been

5 pulled out of the ditch. He is -- tells his men to stop and then they

6 proceed on.

7 One can say that may be ambiguous or ambivalent in terms of its

8 impact but the very next day at the fish farm on April 20th at noon,

9 Mr. Naletilic sets an example for his men that continues throughout the

10 conflict by personally beating prisoners at the fish farm and being

11 present and observing his men beat prisoners at the fish farm, and that

12 conduct set the stage for the continuous treatment -- mistreatment by the

13 members of the Convicts' Battalion at various places through -- in

14 detention facilities under the control and command of Mr. Naletilic. It

15 is not simply one incident. It is the series of incidents that took

16 place.

17 I can point you to the fish farm incident; that's paragraph 353

18 to 369. From his active and passive encouragement of brutality by his men

19 at the fish farm. The Mostar incident on May the 10th, paragraphs 374

20 through 379 where Mr. Naletilic beat someone up on the streets of Mostar

21 in front of his men and then his men start the beating. This kind of

22 culture that he instilled in his men clearly carried over. And he can't

23 all of a sudden say, You have to show me that I knew of a specific beating

24 that was going to happen, when he instilled this culture in his men that

25 random brutality of prisoners and other people was okay and tolerated.

Page 131

1 You will not be punished for it.

2 It goes on to the tobacco station in the summer of 1993,

3 paragraphs 406 to 413, and the Heliodrom throughout the entire period,

4 429 to 436.

5 All of these examples show that he is personally beating people,

6 he is observing the beatings of people, he has become informed about the

7 beatings of people, yet he does nothing to stop it. And the evidence is

8 overwhelming that he knew or ought to have known that his men were engaged

9 in this kind of beating and that the convictions for the beatings and the

10 tortures on a mens rea basis cannot be disturbed because the evidence, I

11 would submitted, is overwhelming. One can look at all of the conduct, all

12 of the messages that are being sent to his men in support of the Trial

13 Chamber's conclusions, and the Trial Chamber did a very good job of

14 analysing the evidence and making those determinations.

15 I'll just deal quickly with the search warrant question. Our

16 position is very simply that the search warrant is a valid search warrant,

17 that -- I'm sorry, the -- that the decisions relating to the search

18 warrant were properly made, in terms of not permitting the Defence to go

19 behind the search warrant and challenge it. The safeguard for the trial

20 was that the Trial Chamber itself looked at not only the search warrant

21 but the background documents and made the determination that they were not

22 relevant and were not of assistance. There was an extensive procedural

23 history relating to the attack on the search warrant that is found in our

24 brief and I won't repeat it here.

25 I will go specifically to the question that is raised by the

Page 132

1 Chamber relating to the question and that is whether the lack of

2 cooperation with the state authorities was relevant. Our position is that

3 there is no requirement by the Prosecution to cooperate with local

4 authorities in the execution of a search warrant. It's the other way.

5 The local authorities have the requirement to cooperate with the

6 Prosecution in the investigation of these matters.

7 There is a standing issue that was raised in our brief. I will

8 not talk about it because there is some indication in the Tadic decision

9 that perhaps standing for a narrow point like this may be permissible,

10 even though Tadic was decided on a different basis.

11 There is no customary international law cited by my friends

12 opposite that suggest or establish that cooperation with local governments

13 is required. The -- it is clear that there is no evidence on the record

14 of a complaint by Bosnia-Herzegovina in respect of the actions taken by

15 the Prosecution in exercising the search warrant in Bosnia-Herzegovina.

16 The Chamber made a specific finding in the suppression decision that there

17 was insufficient evidence to demonstrate an excessive use of force and

18 consequently, they did not permit the results of the search warrant to be

19 excluded.

20 What happened as a result of the admission of the evidence was

21 that PP704, the salary list, was admitted and that I believe is the

22 connection between the attack on the search warrant and the attack on the

23 documents, and our position is that PP704 was a relevant document, was

24 properly submitted, and properly admitted, and there is no basis upon

25 which the search warrant should be found to be invalid and that the --

Page 133

1 there was no unfairness to the -- to the Appellant in terms of its

2 admission.

3 Just dealing with the - excuse me for a second - indictment issue,

4 the question has been raised about the vagueness of the indictment. Our

5 position very simply is that the indictment was not vague. The indictment

6 was sufficient in respect of Naletilic to properly inform him of the

7 offences that he had to meet. The allegations against him were 7(3)

8 allegations. The allegations required that he know -- or they set out for

9 him the offences with which he had been charged and the facts that he had

10 to confront.

11 In terms of the Count 18, the forcible transfer count, the --

12 there are between dates May 9th, 1993 and January 1994. The offence is

13 forcible transfer of Muslim civilians. The places specified and with

14 respect to the beatings, as well, the between dates who committed the

15 beatings, his men, or members of the KB. And where did the beatings take

16 place? In various locations in and around Mostar. The beatings and

17 tortures were committed at different bases of the KB in Mostar, Listica,

18 Siroki Brijeg, Ljubuski. Beatings and tortures were also inflicted at

19 other detention centres.

20 Our response is that the procedural history, the objection to the

21 indictment, the appeal from that objection, when it was not allowed,

22 clearly shows that the indictment was reviewed by the Trial Chamber, found

23 to be valid. An appeal to this Court was not initiated. But to the

24 extent that the indictment is defective and that it doesn't provide clear

25 timely disclosure, our position is that that was done during the course of

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Page 135

1 the pre-trial process by the Prosecution, in particular, as part of the

2 65 ter filings which were disclosed on July 18th, 2000, in the

3 Prosecutor's subsequent 65 ter (E) disclosure on October 11th, 2000, and

4 the Prosecutor's amended list of witnesses pursuant to Rule 65 ter (E)(iv)

5 disclosed on August 16th, 2001.

6 The 65 ter lists, if you look at the June 18th, 2000 --

7 JUDGE POCAR: Just a moment. Judge Schomburg would like to ask

8 you a question.

9 JUDGE SCHOMBURG: You already addressed the question of the

10 preciseness of the indictment in relation to unlawful transfer or whatever

11 you want to call it, and you stated the area was clear, the -- from your

12 point of view, the person who was responsible for this was clear, but what

13 about the time? Isn't it true what Mr. Hennessy has indicated this

14 morning, that there was only a -- it was only two waves of forcible

15 transfer, and what about these incidents taking place the 13th and 14th

16 of June and, in particular, in Mostar 29 September 1993? Was this covered

17 really by the indictment?

18 MR. KREMER: It was between the dates alleged in the indictment.

19 May 9 to January 1994 were the between dates where allegedly the transfers

20 took place, and there was a particularisation that the transfers -- that

21 there was a wave of transfers in May and another wave in July.

22 I will point you to the 65 ter list, which dealt specifically with

23 the witnesses who would testify in support of the Prosecution on Count 18.

24 JUDGE SCHOMBURG: May I invite you, one point is whether a witness

25 testifies and the other question is whether an accused is put on notice in

Page 136

1 a way that he can defend himself against an allegation, and is it really

2 your position that when you state from X to Y, a long period of time, all

3 events in this period of time are covered, in particular when it's a

4 specific day like 27th -- 29 September 1993? Isn't it a kind of shifting

5 target when a witness comes, states there was something on the 27th --

6 29th September 1993, and then you say, Hmm, it's in the time frame alleged

7 and so therefore that's enough? Is this really your position?

8 MR. KREMER: It's not a shifting target, with respect.

9 The accused is put on notice that there are forcible transfers

10 that are taking place between a certain time frame for which he may be

11 held accountable. There are specific time frames, there is a specific

12 place involved, and this is a question of particulars as to exactly how

13 many incidents there are and when those incidents took place.

14 Those particulars can be provided in some other form. No request

15 for particulars was made by the accused, notwithstanding that they

16 complained to the vagueness of the indictment. But the Prosecution did

17 provide the accused with information about the specifics of the incidents

18 that it was relying on in support of this count. Not only did it give

19 them the information of the witness that would testify, it also set out

20 for the accused the facts that the witness would give in respect of that

21 particular date and eviction or transfer and it also set out the count to

22 which it related and the paragraphs in the indictment to which it related.

23 And if that isn't notice of details, then in addition to that, because the

24 witness testimony is referred to, all of these witness statements were

25 disclosed in B/C/S form prior to the 65 ter list being filed, and so the

Page 137

1 Defence had full information as to the evidence that would be called by

2 the Prosecution in support of its count as identified in the 65 ter list.

3 There is no possibility for a misunderstanding as to vagueness.

4 And in addition to that, when the witness testifies and talks

5 about the event of June 13th and 14th, or September 29th, there is no

6 objection from the accused saying this is an irrelevant fact; and in fact

7 they cross-examine on it. And so there is no vagueness here, and to the

8 extent that there is vagueness, it's corrected by subsequent disclosures.


10 MR. KREMER: And the 65 ter list for Mr. Naletilic solves the

11 problem, if Judge Schomburg believes there to be a problem, solves the

12 problem in terms of specificity and particulars in both the Counts 18 and

13 11 and 12 which are the ones that relate to him. I'll deal with

14 Mr. Martinovic tomorrow.

15 I think I will just make one brief comment on sentence and then I

16 will pass the podium over to my colleague.

17 In sentencing in this Tribunal, there are a number of factors that

18 come to play. Command responsibility is a very important one. And in

19 this particular case, the fact that Mr. Naletilic was the commander of a

20 large group of men who he by example for a period of several months, as

21 the evidence shows, permitted with his participation to basically

22 terrorise prisoners, terrorise the community, result in the forcible

23 transfer of hundreds of people, this conduct is properly punished by a

24 sentence of 20 years. He might argue that it's excessive relative to

25 recent sentences. I would submit that you have to take into account his

Page 138

1 leadership example, or lack of it, really. You have to take into account

2 the wide-scale nature of the crimes that were being committed by many of

3 his colleagues for which he has been held responsible, and the apparent

4 lack of remorse because he is still arguing in light of the overwhelming

5 evidence that he wasn't responsible. The evidence clearly shows that

6 Mr. Naletilic was responsible, he had command responsibility, the crimes

7 were committed, he was present, he committed the crimes himself, and at

8 the end of the day, if you agree to uphold the sentence, which we submit

9 you should, then that factor should be taken into account. Yes, he's

10 entitled to argue on reasonable facts, but there is no reasonable fact

11 supporting his submission that I wasn't in command. And I would submit

12 that that fact is an important fact that should be taken into account by

13 this Appeals Chamber in upholding the sentence.

14 Thank you. I will answer questions if there are any.

15 JUDGE POCAR: Judge Shahabuddeen.

16 JUDGE SHAHABUDDEEN: Counsel, we have been presented, by both

17 sides to the argument, with references to operative command and overall

18 command, but are we not looking for some more reliable test as to whether

19 Mr. Naletilic was in command? Should we not be looking for a norm like

20 this, which you may criticise, as to whether or not he was -- he had

21 effective command superiority? Isn't that what we should be looking for?

22 MR. KREMER: I believe the Trial Chamber used the test of

23 effective control, made the finding based on the test that it had

24 announced at the beginning of the judgement, which was the appropriate

25 one. They used various terms to discuss the structure of the KB, but

Page 139

1 ultimately their finding was that Mr. Naletilic had effective control over

2 the entire KB and all of its units.

3 JUDGE SHAHABUDDEEN: You say so. Your colleagues dispute that.

4 We have to come to AN conclusion on that issue.

5 Tell me this: Would you not say that you can use the

6 expression "overall" to indicate either the degree of control being

7 exerted, and you can also use it to refer to the extent of that control?

8 Now, I know I'm a little opaque on that point, so let me read to

9 you a paragraph which you cited, paragraph 129 of the judgement, which

10 says this -- are you with me, counsel?

11 MR. KREMER: Yes, I am.

12 JUDGE SHAHABUDDEEN: Yes. A report of a member of the HVO

13 3rd Mijat Tomic Battalion describes Mladen Naletilic's overall command

14 position in the Sovici/Doljani operation thus. And here is the

15 quote: "Mr. Tuta commanded the overall operation in this area, Risovac,

16 Sovici and Doljani." The suggestion there being that you could

17 use "overall" to refer either to the degree, the degree of the control

18 being exerted or the extent of the control being exerted. That is over,

19 in this case, the overall operation in this area, Risovac, Sovici and

20 Doljani.

21 MR. KREMER: I believe this reference has an extent reference as

22 opposed to the other.


24 MR. KREMER: Yes. But at the end of this chapter, the Trial

25 Chamber finds that the Trial Chamber is therefore satisfied that Mladen

Page 140

1 Naletilic played the central command role in the Sovici/Doljani operation

2 which was part of the larger operation to take Jablanica.

3 JUDGE SHAHABUDDEEN: Yes. Well, we will note your submission and

4 we will come back to it.

5 MR. KREMER: Thank you.

6 JUDGE POCAR: You can continue, counsel, or your colleague.

7 [Prosecution counsel confer]

8 MR. WIRTH: Good morning, Your Honours. My name is Steffen Wirth.

9 I will address you this morning on ground 4 of the Prosecution -- of the

10 Defence appeal regarding Witness Falk Simang, and I will very shortly make

11 a few notes on the issue of wilfully causing great suffering in particular

12 with regard to Ivica Kraljevic, and then I will address you on the Rados

13 diary.

14 Your Honours, I start with ground 4, regarding Witness Falk Simang

15 and the Rados diary -- sorry, about Witness Falk Simang. The Defence

16 challenges the Trial Chamber's assessment of Witness Falk Simang on a

17 number of instances. Each of these challenges is addressed in our

18 response brief and there is no need for me to repeat them today.

19 Therefore, I propose that in the first part of my submission on this

20 ground, I will set out from a more holistic and comprehensive perspective

21 why the Trial Chamber's assessment of Witness Falk Simang as a credible

22 and reliable witness was not in error.

23 In order to do that, I will set out five factors which in our

24 submission characterise Simang's testimony.

25 Your Honours, I was planning in a second part of my submissions to

Page 141

1 address the matters raised in the letter of the Senior Legal Officer.

2 However, I note that we have not heard submissions on that issue from

3 Defence counsel, and I'm not sure whether we will get those submissions.

4 In case we get those submissions, I would ask for an opportunity to

5 respond to these submissions once we have them.

6 I'll turn to the five factors. Your Honours, the Trial Chamber in

7 paragraph 26 footnote 48, found that the testimony of Falk Simang was

8 reliable and consistent, and it is our submission that the following five

9 factors which characterise the testimony of Falk Simang show that this

10 assessment was not in error.

11 The factors are as follows: First, he was there on the ground in

12 the middle of the crimes. Second, most of his evidence was either

13 corroborated by or corroborated -- corroborative of other evidence.

14 Third, he did not speak the language. Fourth, he was horrible with dates.

15 And fifth, he was candid and he would admit if there was something he

16 didn't know.

17 Let me address these factors in turn. First, he was there at the

18 time in the middle of the crimes. He knew the fish farm in Doljani. He

19 knew the Heliodrom in Mostar. He knew the ministry in Mostar from where

20 Naletilic often issued his commands. He also knew the actors on the

21 ground. First of all, he knew Naletilic who was known to him as General

22 Tuta. Further, he knew Naletilic's subcommanders, Mandic and Milicevic,

23 known to him by their nicknames, Lija and Baja. He also knew Andabak and

24 Mario Hrkac, who was nicknamed Cikota, and he knew Zdenko Zdena who was

25 translating for him and for others like Mrachacz.

Page 142

1 Falk Simang also had insider knowledge of what was going on. He

2 knew, for example, that the KB retreated after the death of Cikota, he

3 knew that Muslims were herded into the Mostar stadium, and he knew the

4 hours when the attacks began which -- in which he was involved.

5 Finally, Your Honours, Witness Falk Simang had an HVO

6 identification card and that is on the record as P354.1. There can be no

7 doubt that Simang was a valuable insider and had firsthand knowledge of

8 the case.

9 I turn to the second factor. Most of the evidence Falk Simang

10 gave was corroborated by or corroborative of other evidence. The Trial

11 Chamber noted this on several occasions. And those occasions we refer to

12 in footnote 176 of our response brief. For example, the Trial Chamber

13 noted in paragraph 28, footnote 54, that Simang's evidence that the KB

14 retreated from Doljani after the death of Cikota was corroborated by an

15 entirely different piece of evidence, and that is the Rados diary.

16 The Trial Chamber also noted in paragraph 358 that the testimony

17 of the victims' brutal maltreatment at the fish farm in Doljani was

18 corroborated by Falk Simang. Simang testified that the victims were

19 forced to crawl on the ground towards a wooden shed while being kicked and

20 beaten. The very same testimony was given by independent witnesses,

21 namely the victims of those beatings. And here I refer you to the

22 judgement paragraph 354.

23 Moreover, the Trial Chamber noted that Falk Simang's testimony

24 that Naletilic was the overall commander was corroborative of inter alia

25 evidence given by Ralf Mrachacz, Witness Q, Witness T, Witness Z, and

Page 143

1 Witness CC.

2 Also the Trial Chamber found in paragraph 91 of the judgement of

3 Falk Simang's testimony that Andabak was Naletilic's deputy is

4 corroborated, inter alia, by Witness T, Sir Martin Garrod, and Ralf

5 Mrachacz.

6 Finally, the Chamber finds that Falk Simang's testimony that

7 looting took place was corroborative of other evidence, inter alia the

8 testimony of Witnesses U, AB, AC, CC, MG, GG, II, WW and Q. The extent of

9 this corroboration demonstrate that the Trial Chamber was correct in

10 finding that Simang's testimony was credible and reliable.

11 Come to the third factor. Falk Simang did not speak the language.

12 He knew what he saw. For example, he could see HV patches on uniforms.

13 But apart from what he saw, he only knew what he was told by other people

14 who could speak in German to him, like Zdenko, or Naletilic, who could

15 speak German. This explains that Falk Simang did not know the names of HV

16 units in Mostar but nevertheless was able to say that there were HV units

17 in Mostar because he could identify the patches on the uniform.

18 I turn to the fourth factor. Falk Simang was horrible with dates.

19 He was unable to put correct dates to events, and he himself candidly

20 stated: "I can say what happened and where it happened, but when it

21 happened, each individual operation, I'm not so sure."

22 And that is transcript page 3890. Similar statements can be found

23 on 3844 and 3856.

24 As we have set out in paragraph 417 of our response, the Trial

25 Chamber was very aware of this factor and it dealt with it. It gave

Page 144












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Page 145

1 careful consideration to the assessment of information about dates from

2 Falk Simang; for example, in footnote 426.

3 I come to the fifth and last factor. Falk Simang was candid.

4 Apart from admitting his problems with dates, he frequently admitted that

5 he did not know. For example, he admitted that he did not know whether a

6 mined mosque was in fact blown up subsequently and that is at transcript

7 page 3808.

8 Another example is that he admitted that he did not know how

9 prisoners at Ljubuski prison were treated. And that is transcript

10 reference page 3838. Other references are 3809, 3812, and 3936.

11 Falk Simang's candour is a factor which greatly contributes to the

12 probative value of Falk Simang's evidence. In conclusion, we submit that

13 these five factors show that the Trial Chamber's assessment of Falk

14 Simang's evidence was not in error. He was a true insider, there was

15 striking corroboration. What may appear as deficiencies in his evidence

16 is due to the fact that he did not speak the language and he was horrible

17 with dates and that was dealt with. And finally, Falk Simang was candid

18 and he would admit if there was something he did not know.

19 Your Honours, this concludes my submissions on the character of

20 Falk Simang's testimony. And instead of turning to the questions in the

21 letter of the Senior Legal Officer, I immediately move to a few short

22 remarks to -- with regard to wilfully causing great suffering.

23 The first remark that I would like to make in response to what we

24 heard this morning is there is no requirement under our torture law that

25 there is evidence led with regard to the degree of the duration of the

Page 146

1 suffering of the witness.

2 I'll leave it at that because I think that is clear.

3 Your Honours also asked for a submissions on the matter of Ivica

4 Kraljevic, and our position in that regard is as follows: For the reasons

5 set out in the Prosecution's additional evidence motion in favour of

6 Naletilic, the Prosecution concedes that the beating of Witness Z in the

7 Ljubuski prison was unsafe, and the judgement references are

8 paragraphs 422 and 453.

9 With regard to the impact on the judgement of that concession, we

10 would note as a preliminary matter that at paragraph 4 of the additional

11 evidence motion in favour of Naletilic, we incorrectly stated that the

12 beating of Witness Z in Ljubuski prison was a torture conviction. In

13 truth, it was a conviction entered under the count of wilfully causing

14 great suffering.

15 Now, with regard to the impact of the judgement of our concession

16 the Prosecution submits that given the large number --

17 THE INTERPRETER: Kindly slow down for the interpreters. Thank

18 you very much.

19 MR. WIRTH: My apologies to the interpreters.

20 With regard to the impact of the judgement, we submit that taking

21 away one incident of mistreatment from Naletilic's conduct and given the

22 fact that he was not only convicted for wilfully causing great suffering

23 but also for torture and all sorts of other counts, we submit that this

24 concession should have no impact on the sentence and no reduction is

25 warranted in this regard.

Page 147

1 Let me turn to the last part of my submissions, grounds 6 and 8,

2 relating to the Rados diary.

3 In our response we answered Naletilic's challenge with regard to

4 the Rados diary on the basis that the particular rules of admissibility of

5 evidence in the rebuttal stage do not apply, and the reason for that

6 submission in our response brief was that the Prosecution had requested

7 the admission of the evidence during -- excuse me, before the rebuttal

8 case. However, the Appeals Chamber in its Scheduling Order phrased the

9 matter as an issue pertaining to the Prosecution's rebuttal case, and this

10 characterisation seems also to be consistent with the characterisation of

11 the Rados diary as a rebuttal exhibit in the Trial Chamber's decision of

12 9 October 2002.

13 Our response brief still stands. However, in the following

14 submissions, I will address the matter of the Rados diary applying the law

15 on the admission of rebuttal evidence. I will in the course of my

16 argument first set out that whether or not the Rados diary was correctly

17 admitted, no prejudice resulted for Naletilic, and in the second step I

18 will argue that, in addition, the admission of the Rados diary as rebuttal

19 evidence was without error.

20 I turn to the first issue, the issue of prejudice. Naletilic was

21 not prejudiced by the admission of the Rados diary during the rebuttal

22 case. With regard to any prejudice, the Defence submitted two arguments:

23 First, that it was surprised by the admission of the evidence in the

24 rebuttal phase; and second, that it could not cross-examine the author of

25 the Rados diary.

Page 148

1 The first argument, the surprise argument, is unsustainable. The

2 Prosecution disclosed the a copy of the Rados diary on 18 September 2000,

3 more than two years before the admission of the diary. Further, the Rados

4 diary had been included in the Prosecution's exhibit list. And moreover,

5 on 7 December 2000, during the Status Conference the Prosecution warned

6 the Defence in the following manner. Counsel for the Prosecution said:

7 "It is possible, although we do not intend to offer the diary into

8 evidence, it is possible that it could become of relevance at some point

9 during the trial for whatever purpose."

10 The transcript reference is page 395.

11 It was therefore clear to the Defence that the Prosecution

12 intended to use the Rados diary at trial, even if not as evidence. The

13 Defence had every reason to thoroughly review the diary.

14 However, the Defence received another warning on 3 June 2002. At

15 that date the Prosecution moved for the admission of the diary, and it

16 took more than another four months before the diary was finally admitted

17 on 23 October 2002. It is difficult to understand how the Defence can

18 claim that at this date, two years after it had received the Rados diary,

19 it was surprised by this piece of evidence.

20 However, even had the Defence seriously considered that at this

21 time it was surprised by the admission of the Rados diary, it would have

22 had the opportunity to request more time from the Trial Chamber at this

23 point in time to remedy any prejudice suffered through the late admission.

24 The fact that the Defence did not do so shows, on the one hand,

25 that it was not surprised, and on the other hand, constitutes a waiver of

Page 149

1 the issue.

2 I turn to the second claim regarding prejudice; namely, the

3 argument that the Defence was unable to cross-examine the author of the

4 diary, Alojz Rados.

5 As a preliminary observation, it should be noted that this alleged

6 prejudice has nothing to do with the stage of the proceedings when the

7 diary was admitted. And also, I will later submit, that the Defence did

8 not have any right to have Alojz Rados called.

9 Your Honour, before I can continue with my submissions, I would

10 ask that we quickly go into private session, if that is possible.

11 JUDGE POCAR: Yes. Move to private session.

12 [Private session]

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 150

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 [Open session]

10 THE REGISTRAR: Your Honour, we are in open session now.


12 MR. WIRTH: Thank you.

13 Your Honours, in conclusion we submit that no prejudice has been

14 suffered by the Trial Chamber's admission of the Rados diary, and the

15 appeal could be dismissed on that reason alone. However, you do not even

16 need to consider whether Naletilic was prejudiced because the Trial

17 Chamber, when admitting the diary, did not commit a discernible error in

18 the exercise of its discretion. The relevant law on discretion is set on

19 the Milosevic joinder appeal of 18 April 2002 in paragraph 5. In

20 accordance with this law, the Prosecution will show that the Trial Chamber

21 did not commit a reviewable error regarding, first, the applicable law,

22 and, second, the weighing of the relevant factors.

23 I turn to the applicable law. The Trial Chamber did not misdirect

24 itself to the applicable law. In its decisions of 9 and 23 October 2002,

25 it completely applied -- excuse me, it correctly applied Rule 89(C).

Page 151

1 Contrary to the Defence submissions, Rule 92 bis is not admissible -- is

2 not applicable, excuse me.

3 The Appeals Chamber held in the Galic interlocutory appeal of

4 7 June 2002 in paragraph 31: "Rule 92 bis has no effect upon hearsay

5 material which was not prepared for the purposes of legal proceedings."

6 The diary clearly is not a document prepared for legal proceedings, and

7 it's our submission that, therefore, the applicable rule was Rule 89(C).

8 The Trial Chamber also did not err with regard to the law

9 applicable to the admission of rebuttal evidence. And that law is set

10 out, inter alia, in paragraphs 273 and 275 of the Celebici appeals

11 judgement. Inter alia, the Trial Chamber specifically required in its

12 decision that "rebuttal evidence must relate to a significant issue

13 arising directly out of Defence evidence which could not reasonably have

14 been anticipated." And that is a literal quote or almost a literal quote

15 of the Celebici appeals judgement, paragraph 273.

16 And the Trial Chamber seems even to have been stricter than

17 required under the Celebici appeals judgement requiring, as some other

18 Trial Chambers did, that "only highly probative evidence will be

19 admitted," and that was in the decision of 23 October 2002.

20 We therefore submit that the Trial Chamber did not err with regard

21 to the applicable law. And I will now turn to the Trial Chamber's

22 weighing of the relevant factors.

23 First, the Rados diary is highly probative evidence. It was

24 prepared without any considerations of the present proceedings and it is

25 completely --

Page 152

1 THE INTERPRETER: Thank you for slowing down.

2 MR. WIRTH: Sorry, let me start again.

3 The Rados diary was prepared without any consideration of the

4 present proceedings. It is completely independent of any other evidence

5 led during trial and it is consistent with this evidence. Moreover, it is

6 unthinkable that the diary is a falsification. Witness NN stated that he

7 had heard of the Rados diary from a prisoner during the war and later also

8 in the media.

9 Safet Idrizovic stated that he knew Rados's handwriting because he

10 often worked with handwritten documents from Rados. The two of them

11 worked together. Idrizovic recognised the handwriting of Exhibit 928C,

12 the original blue-ink copy of the Rados diary, as the handwriting of

13 Rados.

14 Your Honours, for other reasons why the Rados diary cannot be a

15 falsification, I would refer you to the Prosecution's filing of 15 October

16 2002, registry pages 5790 to 5779.

17 In conclusion, Your Honours, there can be no doubt that the Rados

18 diary is highly probative.

19 I turn now to the next requirement, the requirement that rebuttal

20 evidence must rebut Defence evidence and must be significant.

21 The Rados diary was used by the Prosecution to rebut the

22 credibility of three Defence witnesses; namely, witnesses NE, NW and NL.

23 At the 98 bis stage, the Prosecution had a strong case that

24 Naletilic was in command of the units taking part in the Sovici and

25 Doljani operation. The Defence tried to undermine this case through the

Page 153

1 testimony of NL. NL was trying to explain Naletilic's presence in the

2 region with completely innocent motives. NL stated that in the middle of

3 the fighting around Sovici and Doljani Naletilic was spending the day with

4 his children visiting his old friend, the father of NL, over Easter in his

5 house in Risovac. Moreover, NL stated that when Naletilic finally went to

6 Sovici and Doljani, he only went there to pick up the body of an old

7 comrade who had fallen in the fights and that he returned immediately

8 thereafter.

9 NL also stated that Naletilic did not have a Motorola with him.

10 And he never tried to show that Naletilic had no means to communicate with

11 his soldiers.

12 Your Honours, this evidence was directed against the Prosecution's

13 command responsibility case, and the Prosecution successfully rebutted it

14 by using the Rados diary to undermine the credibility of Witness NL. The

15 Trial Chamber did not believe, as a result of that undermining, that

16 Naletilic's motives for his presence in the region were to visit old

17 friends, to be with his children, and they did not believe that Naletilic

18 didn't have a Motorola to communicate with his troops.

19 The Rados diary also shed doubt upon the general credibility of

20 other Defence witnesses and also on Defence Witness NL. And I refer you

21 to examples simply to transcript pages 12703 to 12704, that is for

22 Witness NL, to 14988 for NW, and to 1138 for NE.

23 Given the solidity of the Rados diary, the inconsistencies in the

24 testimony of the witnesses with the Rados diary exposed that those

25 witnesses should not always be relied upon, and indeed their testimony was

Page 154












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Page 155

1 rejected by the Trial Chamber on a number of occasions. And the Appeals

2 Chamber will be able to confirm, to confirm this when looking, for

3 example, at trial judgement paragraph 129, footnote 371, paragraph 525, or

4 paragraph 88, footnote 233.

5 In conclusion, the Prosecution submits that the Trial Chamber did

6 not exercise its discretion erroneously when it considered that the Rados

7 diary could rebut the credibility of these Defence witnesses. It was open

8 to the Trial Chamber to consider that the credibility of these Defence

9 witnesses was a significant issue which arose from the case of the Defence

10 and that the Rados diary was appropriate rebuttal evidence.

11 The Defence appears to also submit that nevertheless the Rados

12 diary should not have been admitted because Alojz Rados was not available

13 for cross-examination at trial. The Prosecution in this regard has

14 already set out that the Defence itself demonstrated that it did not feel

15 prejudiced by the fact that Alojz Rados was not a viva voce witness at

16 trial.

17 However, in any case, the Rados diary was admissible irrespective

18 of whether Rados was available to testify to its contents. I have set out

19 above that the rule governing the admission of the Rados diary was

20 Rule 89(C) and not Rule 92 bis. And we set out in paragraph 454 of our

21 brief that it is not mandatory for the admission of a document under

22 Rule 98(C) that the accused be given the opportunity to cross-examine the

23 author of a document.

24 In the present case, the Prosecution took various steps to obtain

25 Rados as a witness. Apart from investigating his whereabouts, it

Page 156

1 requested and received the help of the Trial Chamber. And the extent of

2 our efforts is documented in the Prosecution's confidential submissions of

3 13 September and 15 October 2002.

4 In any case, the witnesses through which the Prosecution finally

5 tendered the document, in particular Witness Safet Idrizovic, provide a

6 very sound foundation to the authenticity of the Rados diary. And another

7 part of that same foundation is the fact that there is very -- that the

8 Rados diary is widely corroborated by other evidence.

9 The Prosecution submits that under these circumstances, the Trial

10 Chamber did not err in the exercise of its discretion when it decided that

11 the diary had evidentiary value despite the fact that its author was not

12 available for cross-examination.

13 Your Honours, that concludes my submissions. And obviously I'm

14 available for questions which you may have.

15 JUDGE POCAR: Judge Vaz, you have the floor.

16 JUDGE VAZ: [Interpretation] Thank you very much, Your Honour.

17 I would like to ask the Prosecutor whether he can tell us at what

18 date Simang became a member of the KB. Earlier on, you told us that he

19 had an HVO identification card. Can you please give us the date when did

20 he become a member of the KB? Thank you.

21 MR. WIRTH: Your Honours, thank you very much for the question.

22 Falk Simang testified that he became a member of the Convicts' Battalion

23 in February of 1993. And does that answer your question?

24 JUDGE VAZ: [Interpretation] Yes. You've answered my question.

25 Can you give us some more details? Do you have documents that testify to

Page 157

1 the fact that he actually became a member in February 1993? Or do you

2 rely on his statements or -- is his statement -- has this statement been

3 confirmed by other witnesses?

4 MR. WIRTH: Your Honours, we are relying from his statement. At

5 this point in time, I'm not aware of evidence that confirms that Falk

6 Simang became a witness in February 1993. However, we certainly would

7 submit that it is absolutely clear that he was a member of the KB at the

8 relevant times to which he testified.

9 JUDGE VAZ: [Interpretation] Thank you very much.

10 JUDGE POCAR: Any more questions?

11 Counsel, may I ask you one point? If I understood well, your

12 point is that the diary was used by the Prosecution only to affect the

13 credibility of some witnesses. So it went -- the Prosecution intended to

14 submit it to have the diary admitted just for purposes of credibility; is

15 that correct?

16 MR. WIRTH: Yes, Your Honour. That is correct. We submitted that

17 the Rados diary was admitted to effect, in particular, the credibility of

18 Witness NL and thereby assisted the Trial Chamber to evaluate his very

19 important statements on Naletilic's motives for his presence in the

20 region.

21 JUDGE POCAR: Well, it's also your -- I accept that. It's also

22 your position that the Trial Chamber made use of the diary only as

23 intended by the Prosecution or went beyond that?

24 MR. WIRTH: Your Honours, do I understand your question

25 correctly: Whether the Trial Chamber only used the Rados diary in order

Page 158

1 to rebut the Defence witnesses? Is that your question?

2 JUDGE POCAR: Exactly.

3 MR. WIRTH: No. The Trial Chamber used the Rados diary also for

4 other purposes.

5 JUDGE POCAR: I thank you.

6 [Prosecution counsel confer]

7 JUDGE POCAR: Well, if there is no other submission, I think we

8 can conclude for this morning. We will reconvene at -- in two hours, try

9 to be correct now, at 2.45, for the reply of Mr. Naletilic.

10 The meeting is adjourned.

11 --- Break taken at 12.47 p.m.

12 --- On resuming at 2.48 p.m.

13 JUDGE POCAR: Good afternoon. We can resume our hearing.

14 I will give the floor to the counsel for Naletilic for the reply

15 for half an hour.

16 MR. HENNESSY: Thank you. May it please the Court, I'll speak

17 briefly in response about the Rados diary and then turn the floor over to

18 my colleague, Mr. Meek. I speak only because I was frankly somewhat

19 surprised to hear our Rule 115 motion submission used against us. What I

20 heard the Prosecution say was this: It's because we sought out Mr. Rados

21 and because he was uncooperative with us, therefore somehow Prosecution

22 evidence became more admissible than it otherwise was. That's awfully

23 puzzling to me. In my view, that's -- that logic simply does not hold,

24 that our efforts were met with the same type of, I presume,

25 uncooperativeness as the Prosecution was met with when they sought

Page 159

1 Mr. Rados, I don't understand how that should be used now against

2 Mr. Naletilic.

3 Not only that, that simple observation, but even beyond that, that

4 the particular Rule 115 submission, of which the Prosecution -- to which

5 the Prosecution referred, they fought every which way they could and

6 succeeded. So here we have a situation where a submission by the Defence,

7 which the Prosecution fought, which was met with the same response from

8 the same witness, somehow inures to their benefit. I

9 submit simply that that logic does not hold.

10 One more remark about the Prosecution's statements regarding the

11 Rados diary. I noted I'm sure -- well, I believe that the Chamber did as

12 well, with interest, that the Prosecution now says the Rados diary was

13 submitted only to rebut, if it did, Witness NL. I ask you to go back and

14 look at the Prosecution's final brief. They used it for much more than

15 that. So if, as we suggest, the Trial Chamber committed error in

16 admitting that evidence, the Rados diary and then using that evidence

17 substantively throughout the judgement, which we know it did, then that's

18 invited error by the Prosecution.

19 With that I'll turn the floor over to Mr. Meek.

20 MR. MEEK: May it please Your Honours, I'd like to speak briefly

21 about the issue of Falk Simang and what we claim was the unnatural weight

22 that the Trial Chamber gave his testimony under all of the circumstances.

23 For example, what the Prosecutor indicated that in speaking about Falk

24 Simang was that, well, you know, he didn't speak the language, and he had

25 a horrible memory. Well, that's just another way to say that he didn't

Page 160

1 know what happened and he didn't know when it happened.

2 What the Prosecutor didn't talk about, and I assume the Prosecutor

3 doesn't want to talk about this aspect of the case, is our request to have

4 a subpoena issued by the Trial Chamber for a certain Prosecutor which I

5 will not name. Everybody here has read our briefs and read the

6 transcripts at the trial, and we know that there was a Prosecutor from the

7 OTP who took an early interest in this case and along with investigators

8 from the Tribunal, visited both Ralf -- Falk Simang and Ralf Mrachacz

9 numerous times in a prison in Germany, the Straubing prison. During the

10 cross-examination of Ralf, we introduced numerous documents which were in

11 the form of letters to this -- to the investigator or investigators and to

12 the Prosecutor, which I will not name. Some of these letters indicate,

13 for example, that Mr. Simang was under the impression that the OTP would

14 help or that help would be forthcoming regarding the imminent reopening of

15 my case, because the people from The Hague could only shake their heads at

16 what was happened here. Quote: "The state attorney," I won't say name,

17 "said that I had been treated disgustingly" --

18 JUDGE POCAR: Mr. Meek, can you be more precise about the

19 documents? Can you -- you are mentioning some documents you introduced,

20 formal letters. Can you give us the numbers of the exhibits?

21 MR. MEEK: Yes, Your Honour, DD123.6 --

22 JUDGE POCAR: You can proceed and give us the number a bit later.

23 MR. MEEK: That's just one of them. DD1/23.27 [Microphone not

24 activated] They -- they would probably go into the record as D1/23.27,

25 D1/23.2, D1/23.3, D1/23.4, D1/23.5, D1/23.6, D1/23.3. I mentioned that

Page 161

1 one. D1/23.7 again. D1/23.10. D1/23.11. D1/23.25. D1/23.12.

2 D1/23.13. D1/23.26. D1/23.14. D1/23.16. Again 23.17. 23.18. Exhibit

3 23.19. Mr. Falk Simang is writing the investigators for the OTP on 8th of

4 March 2000, quote, "asking you for your help once again."

5 JUDGE POCAR: Okay. Are all these documents trial documents?

6 MR. MEEK: Yes.


8 MR. MEEK: I'm just giving you some examples. They are all

9 admitted through the testimony of Falk Simang, D1/23.22. And there is

10 other ones, Your Honour. 23.24, 23.27. There was a bundle, let me tell

11 you it was shocking. There was a bundle of letters from Falk Simang to a

12 Prosecutor and lead investigator named Van Hecke who testified in open

13 court about the promises that were made, about him being the chief witness

14 against General Tuta.

15 When we - and I believe rightly so - requested the right to

16 question the Prosecutor about what, if any, agreements had been made

17 between this witness and Ralf Mrachacz for their testimony, we were

18 absolutely denied that right. Understanding that Your Honours might say,

19 well, OTP Investigator Van Hecke, there were a few letters written to him

20 also, he was under cross-examination, but I'll tell you right now, at

21 least where I come from, and I think mostly any jurisdiction in the world,

22 an investigator or a police officer doesn't have the right to make an

23 agreement with a witness to provide testimony against another person.

24 Only that can come from the prosecuting attorney. And that's why we

25 wanted to find out, what, if any, promises had been made. Because there

Page 162

1 are suggestions from Falk in these documents that the OTP with all their

2 powers were going to reopen his case in Germany, that he got a raw deal,

3 and we believe that the Trial Chamber should have allowed us the right to

4 speak to that Prosecutor so we could discuss with the Prosecutor what, if

5 any, agreements had been made. That was denied us.

6 Falk Simang -- and Your Honour, Falk Simang, the exhibit, P354.1,

7 the ID for Falk Simang, it was introduced in evidence on November 9th,

8 '01, and it is dated 27 April 1993. Nearly two weeks after Falk Simang

9 alleged he had been in Sovici and Doljani -- excuse me, Doljani.

10 That brings me to another point. This testimony of Falk Simang is

11 so unbelievable, it's so inconsistent that it's just purely unbelievable,

12 it shouldn't have been given any weight. He testified that he had never

13 heard of Sovici. It was established at the trial that Sovici and Doljani

14 are two small villages up in the mountains in the Jablanica municipality.

15 And from Siroki Brijeg where the Convicts' Battalion was stationed, to get

16 to Doljani, you had to drive -- there was only one road: You had to go

17 through Sovici. However, Falk Simang had never heard of Sovici, never

18 been to Sovici. We had Defence witnesses testify that it's impossible,

19 people who live there, it's impossible to go to Doljani from Sovici

20 without -- from Siroki Brijeg without going through Sovici. But again,

21 what happened in this case in our opinion is that the Trial Chamber took

22 all inferences at the end of the case, all inferences in favour of the

23 Prosecution and against the Defence which they only have the right to do

24 on the motion for judgement of acquittal. When it comes to the guilt

25 phase, the beyond a reasonable doubt statute applies, and all inferences,

Page 163

1 any evidence that's conflicting, it's got to be decided in favour of the

2 accused which wasn't done in this case.

3 Now, other things that are interesting about Falk Simang: Falk

4 Simang testified that in Mostar, in May, on the 10th, that he observed,

5 witnessed, my client and Ivan Andabak shooting two different prisoners.

6 That my client shot a prisoner dead, that Ivan Andabak shot a prisoner

7 dead. He was the only one who testified to that. No one else that was

8 there for those events testified to that. The Prosecution apparently

9 didn't believe him because they didn't charge my client with murder that

10 happened in Mostar on the 10th of May.

11 The other example I always found interesting was that Falk Simang

12 testified about this Doljani situation, about the soldiers taking some

13 prisoners into the woods and they heard shooting and then only the

14 soldiers returned and loaded their guns. The clear implication of that

15 was that they had been murdered. However, he was the only witness. None

16 of the Prosecution witnesses testified to that event. The Prosecution

17 must not have believed him because they didn't charge my client with those

18 murders, but yet he testified to that.

19 Now, the other interesting thing the Prosecutor says is that he

20 didn't speak the language, he had to have an interpreter. If you look at

21 the transcript, (redacted), and I think the

22 Prosecutor even mentioned that this morning. I would ask the Trial

23 Chamber to please, please look at the testimony of Defence Witness NK. NK

24 was the interpreter for Falk Simang. NK testified clearly that he did

25 not -- that Falk Simang was with him 99 per cent of the time because he

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Page 165

1 couldn't speak any of the language.

2 We asked: Were you in Sovici and Doljani September 17th to the

3 20th?

4 No, I didn't go on that action. I wasn't in that action.

5 Well, where was Ralf?

6 Ralf was with me. Ralf was always with me.

7 Again, Trial Chamber disregarded that testimony.

8 As far as the Prosecution claiming, well, Falk Simang, you know,

9 he could -- his testimony was believable because, well, he talked about

10 Cikota being killed in Sovici or outside Doljani in the mountains and

11 Cikota's funeral after 20th of April 1993. I submit that there were a

12 number of witnesses who talked about the funeral of Cikota, who was the

13 commander of the Convicts' Battalion at that time, and that there is

14 evidence in the record clearly that his funeral was attended by most --

15 the whole town of Siroki Brijeg. There were thousands of people there at

16 his funeral. It was in the newspapers. It was common knowledge. So to

17 say, to have the Prosecutor say you should believe this guy because he

18 knew about Cikota being killed in Doljani, he knew about his funeral, Your

19 Honours, those are just things that they are common knowledge in

20 Herzegovina and in the Mostar area, Siroki Brijeg area. So that's nothing

21 special.

22 The Prosecutor pointed out that at footnote 54 of the judgement,

23 that Falk Simang's testimony is corroborated. Guess by who? Guess by

24 what evidence? By the Rados diary.

25 If you look close at this judgement, you'll see a lot of different

Page 166

1 places where PP704, P704, the putative diary, or excuse me, the putative

2 Convicts' Battalion payroll list from November '93 is corroborated by Falk

3 Simang or Rados diary, or Rados diary is corroborated by P704. All three,

4 the one witness Falk Simang and Ralf Mrachacz -- and by the way, Ralf

5 Mrachacz indicated in his testimony when asked directly about the

6 punishing members of the Convicts' Battalion, that in his opinion, the

7 whole time he was there, he never knew of any reason why anyone would have

8 to be punished, indicating clearly that there was never any crimes

9 committed or bad acts or bad behaviour.

10 I'm going to talk about the plunder issue. My client was found

11 guilty of 7(3) for plunder solely, I submit to you solely based on the

12 testimony of Falk Simang. Who testified that it was the 10th of May in

13 Mostar and that he observed -- he was standing with my client,

14 Mr. Naletilic, and Ivan Andabak and Cikota while members of the Convicts'

15 Battalion were allegedly putting furniture and things from houses and

16 apartments on a truck that he -- but guess what? How can that be? Cikota

17 was killed. It was found in the judgement. It's uncontradicted. He was

18 dead on the 20th of April of 1993, bless his heart. How can he be in

19 Mostar with Falk Simang and my client while other people are looting in

20 front of him? It's just a factual impossibility but the Trial Chamber

21 still cites him for the proposition that my client was aware of people

22 from the KB looting.

23 Mr. Kremer mentioned Mr. Martin Garrod. Sir Martin Garrod

24 testified about this command responsibility because Sir Martin Garrod

25 frankly testified that he was at the home of an individual who testified

Page 167

1 in this case as a Defence witness in Siroki Brijeg, and he had some

2 discussion with my client who was at the home at the same time. The home

3 where this meeting was supposed to have taken place, as testified to by

4 the person who owned that home, he testified that, yes, I know Martin

5 Garrod and, yes, I know Mladen Naletilic and, yes, both of them have been

6 at my home at different times but never have they ever been at my home at

7 the same time.

8 Martin Garrod also testified, Your Honours, that he -- and it came

9 up in a document, and I don't know the exact number of it right now. But

10 he testified that through his intelligence reports that Mr. Naletilic

11 had -- was protecting -- or there were two Muslim villages under the

12 protection of Mr. Naletilic. Now, if Mr. Naletilic is so prejudiced

13 against the Muslims and is persecuting people, why is he -- frankly why is

14 he protecting Muslim villages, and Sir Martin Garrod corroborated that and

15 established that fact, that he had been taking care of those villages.

16 And so there wasn't any fights there and nobody got taken hurt or

17 expelled.

18 Now, I want to try to do the best I can with the questions that

19 the Appeals Chamber had indicated. I think we have talked about some of

20 them, but just let me say that in paragraph 89 of our revised appeal brief

21 we claim that the trial record support our submission that Falk Simang was

22 not yet a member of the KB or Convicts' Battalion on 19th and 20th of

23 April and that it was disbanded at the end of 1993. You can find that in

24 footnote 261 of the trial judgement. The Trial Chamber itself found that

25 the Convicts' Battalion was disbanded at the end of 1993. We have -- NN

Page 168

1 and NP both testified, and we have again the ID showing that he was not

2 even a formal member of the HVO until the 27th day of April.

3 Under number -- question 3, we submit that the Velez stadium in

4 Mostar where there was a lot of evidence that people on the 10th,

5 civilians were taken to the Heliodrom or first off the Velez stadium. And

6 what we are saying here is that Falk Simang testified that they were taken

7 to the gymnasium. The gymnasium -- then the Trial Chamber just says in

8 the judgement, well, he means the stadium. But he didn't. He said the

9 gymnasium. There is a big difference between a gymnasium and a stadium.

10 Now, you want to know about PP360 in paragraph 218 of our revised

11 appeal brief and that's an issue about expelling of civilians from Sovici.

12 PP360 is the same document as D1426. They are both identical documents,

13 and they talk about the fact that it was negotiations between General

14 Petkovic and General Halilovic of the ABiH army in regards to what to do

15 with the civilians that were in Sovici and again, other evidence that the

16 Trial Chamber ignored because it did not, we submit, follow the theory of

17 the Prosecution's case.

18 On number 6, Your Honours, the decision of the Trial Chamber under

19 our 30th ground of appeal, we had put June -- 4th of June 2002, that was

20 actually the 5th of June, I apologise. It was a decision basically

21 denying our request to have the Trial Chamber subpoena the archives of the

22 Bosnia-Herzegovina, the ABiH -- where all the ABiH records were stored.

23 We made attempts, couldn't do it, we asked that they issue a subpoena and

24 they refused to do that.

25 Seven and maybe to my mind, the most interesting and maybe

Page 169

1 important part that you ask is the details regarding Mladen Naletilic's

2 ill health during trial and whether he raised it as a mitigating factor.

3 Well, we did raise it as a mitigating factor, and I believe on the 21st of

4 February of 2003, prior to the judgement being rendered, there were

5 submissions in writing as to that.

6 Now, we also state that, you know, he suffered from ill health.

7 He's got four stents in his heart. He was flown here from Zagreb in an

8 air ambulance. That's how he had to be brought to The Hague back in 1999

9 or 2000, and just let me -- bear with me for a minute. And I'd ask you

10 to, if you don't think my client didn't cooperate with the proceeding of

11 the Trial Chamber, then you need to look at some of these dates.

12 Before I do that, here is something -- before I forget it, I want

13 to talk about PP704.

14 You know, PP704 should never have been admitted but it was. And

15 the Prosecution used it throughout and the Trial Chamber utilised it to

16 find that certain people were members of the Convicts' Battalion on

17 earlier dates. One of them was a name Robi, people called him R-o-b-i,

18 R-o-b-o, Robert, well, that was because of beatings that were apparently

19 taking place at the MUP station in Siroki Brijeg in May, or in April and

20 May. And if you look at the trial transcript, that's one of -- PP704 is

21 one of the documents they used to show that this Robi, Rabo, Robo, we

22 don't know, Robert Medic was a member of the KB.

23 On November 20th of 2001, Mr. Par for Vinko Martinovic was

24 cross-examining a witness, PP, at transcript page 6149 and 6150. And

25 basically Mr. Par was asking to have the P704 document put on the ELMO so

Page 170

1 that they could show the witness so he could look at it to determine

2 whether or not a certain person's name was on that list under Vinko Skrobo

3 unit. Judge Clark intervened at page 6150 and said to Mr. Par: "How is

4 that relevant? It's six months or five months later. It's November 1993

5 and we are talking about July August, September."

6 What she was saying, it's November 1993 is the date PP704 and

7 wouldn't let Mr. Par cross-examine a witness, yet routinely throughout the

8 trial, the Office of the Prosecutor was able to put this P704 in front of

9 witnesses to say was this person on this list from some incident that

10 happened in March, April, May? So it's just kind of a schizophrenic way

11 of trying a case where the Prosecutor can do one thing and we can't do

12 it -- we can't do it. Mr. Scott, transcript 2690 and 91, also talks about

13 the relevance, and he says only been a month before that, Judge.

14 And throughout this trial, Mr. Naletilic suffered from illness,

15 the Trial Chamber knew it. The Trial Chamber did not -- they wanted to

16 proceed in an expedient manner to get this case done, which all Trial

17 Chambers do, don't get me wrong, there is nothing wrong with that.

18 November 26th, they say we haven't seen you for almost a week. That's

19 because he'd been out a week but we had been going to trial.

20 I'll just give you the dates. April 8th, 2002, Judge Liu to

21 Mr. Krsnik: Well, we notice Mr. Naletilic is absent. Yes, Mr. Krsnik.

22 He's gone too the doctor, Krsnik tells him, but we are prepared to

23 go ahead with the proceedings. He's allowed us to do that.

24 April 25th. Naletilic is present at that time, and Judge Liu

25 says: We are very concerned about your health. Please take care of it.

Page 171

1 Wednesday, 8th of May 2002. Naletilic is gone again because of

2 health, and again we proceeded with trial without him because he

3 authorised that.

4 May 9th, he's not present.

5 JUDGE POCAR: Mr. Meek, may I draw your attention to the fact that

6 you have one more minute.

7 MR. MEEK: One more minute, all right.

8 May 13th, gone, sick but the trial continues.

9 28th of May, '02, gone, the trial continues.

10 July 17th, gone, trial continues.

11 July 23rd, gone, trial continues.

12 July 24, gone, trial continues.

13 September 11th, gone, trial continues.

14 September 17th, gone but trial continues. Judge Liu: "We hope

15 your client has a speedy recovery."

16 It was a well-known fact he was ill and allowed the trial to

17 proceed in his absence. And we believe that's a mitigating factor.

18 19 September, gone, trial proceeds.

19 10th of October, gone, trial proceeds. 30th of May -- that's the

20 wrong one.

21 But these are examples of them, Your Honour. And we think that

22 the Trial Chamber erred, certainly erred by not allowing us to call the

23 unnamed Prosecutor to find out what kind of bargain had been made for the

24 testimony of Falk Simang and Ralf Mrachacz. And, again, I submit to you

25 that if you look at this judgement and you look at it close, you're going

Page 172

1 to see overwhelmingly P704, the Rados diary and Falk Simang.

2 Thank you very much. Sorry I took more time than I should have.

3 JUDGE POCAR: I thank you, Mr. Meek. Mr. Kremer.

4 MR. KREMER: There is one thing I'd like to bring to the attention

5 of the court. During the course of Mr. Meek's submission, he may have

6 identified Witness NK and there may be a redaction necessary in the

7 transcript.

8 JUDGE POCAR: Okay. Let's check that. Thank you very much

9 Mr. Kremer.

10 MR. MEEK: Thank you, Peter. I apologise.

11 JUDGE POCAR: Well, this concludes the reply of Naletilic.

12 Let's move on to the submission by Mr. Martinovic -- I'm sorry,

13 Mr. Kremer?

14 MR. KREMER: I'm sorry for interrupting but I wonder if we might

15 take a five-minute break because Mr. Farrell is coming for the Martinovic

16 appeal. I understand he's outside, but it's just a matter of him being

17 able to come in and Mr. Wirth leaving so we have room.

18 MR. MEEK: I could talk for five more minutes.

19 MR. KREMER: No, no.

20 MR. MEEK: I haven't touched the search warrant issue yet. I

21 could do that in four and a half minutes.

22 JUDGE POCAR: He could have come in in the meantime.

23 MR. KREMER: I'm not sure that he wanted to interrupt the

24 submissions.

25 JUDGE POCAR: So if we can now proceed.

Page 173

1 Counsel for Mr. Martinovic will have now one hour and 30 minutes

2 for their submissions, but we'll break after the first hour at 4.20 for

3 half an hour, and counsel for Martinovic will continue for the -- for 30

4 minutes after the break. So you have now until 4.20.

5 MR. PAR: [Interpretation] Thank you, Your Honour.

6 The Defence for Vinko Martinovic intends to present their

7 submissions in the following way. I will present our appeals brief and my

8 colleague, Mr. Kerns, will respond to the Prosecution appeal.

9 In this part that I consider very important, I will turn to all

10 the three grounds of appeals, the first one is the errors of law where I

11 will especially talk about the existence of an international armed

12 conflict in relation to Mr. Martinovic.

13 The second ground of appeal, errors of fact. I intend to discuss

14 the matters, the events relating to the murder of Nenad Harmandzic and the

15 so-called wooden rifles incident.

16 I also intend to talk about the sentence and probably after the

17 break, I will respond to the Judges' questions that were put to us earlier

18 on.

19 In relation to the first ground of appeal, errors of law, we

20 object to two matters. First of all, the Trial Chamber erred in finding

21 that there it was an international armed conflict in the indictment

22 period. And second, that the Trial Chamber erred in finding that

23 alternative charges could be brought against the accused Martinovic and

24 cumulative convictions could be entered against him. I will talk about

25 this today only in relation to the international armed conflict, although

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Page 175

1 I do stand by our submissions as contained in the appeals brief in their

2 entirety.

3 In relation to the existence of an international armed conflict

4 the Defence presented two theses. First, that the existence of an

5 international armed conflict was not proven; and second, that the accused

6 Martinovic could not be held responsible for participating in an armed --

7 in an international armed conflict because he did not know, was not aware,

8 and did not intend to participate in one such conflict. In total, the

9 existence of such a conflict was entirely without his knowledge and

10 awareness -- out of his knowledge and awareness.

11 I intend to discuss this matter because I consider it very

12 significant for the Defence as it incurs responsibilities under all the

13 charges under Article 2. I refer to the Kordic judgement, paragraph 311,

14 where this matter was examined from a different point of view, but the

15 position of the Appeals Chamber was very clear in relation to the

16 commission of the accused, that it had to be proven that the accused was

17 aware of the contextual and background information related to the

18 existence of an international armed conflict.

19 I know the position of the Appeals Chamber in this particular

20 matter related to Kordic so I will not further elaborate on that.

21 In relation to the international armed conflict, and specifically

22 in relation to Mr. Martinovic, we are found in a similar situation. In

23 the relevant period of time, Martinovic did not know and was not able to

24 know that he participated in an international armed conflict and that this

25 circumstance was something that he was not aware of.

Page 176

1 What do we base this submission of ours on? It was only upon the

2 receipt of the indictment that Martinovic became aware of the charges

3 against him in terms of his having participated in an international armed

4 conflict, which surprised him because it has been shown beyond doubt that

5 Vinko Martinovic was a private by rank, that he commanded over the

6 smallest military structure, a group of a dozen soldiers that, together

7 with this group of soldiers, throughout the war, he held one and the same

8 Defence line in Bulevar Street in Mostar, which was 100 to 150 metres

9 long. Furthermore, Martinovic's units never moved away from this defence

10 line. They never participated in any actions outside Mostar, and it is

11 beyond any doubt that -- beyond any dispute that Martinovic did not

12 participate in any military meeting.

13 It is beyond dispute that he was not a member of any political

14 party and did not have contacts with any high-ranking political or

15 military figures.

16 It is also beyond dispute that Martinovic had practically been

17 fighting in Mostar in front of his own home, first by fighting the Serbs,

18 and then by fighting the Muslims who attacked that part of the town. To

19 him, this was a local conflict entailing defence. Neither he nor any of

20 his soldiers could conceive of the fact that they participated in any

21 international armed conflict simply because they did not have any

22 information to that effect. That this is how the matter stands is shown

23 by the fact that the Prosecutor, throughout the trial proceedings, never

24 even attempted to present the situation in a different light or to show

25 that Martinovic in any way was aware of an international armed conflict

Page 177

1 and of his participation in it. Therefore, in no part of the presentation

2 of evidence on the part of the Prosecution was evidence adduced to that

3 effect.

4 Whether Martinovic had any awareness or knowledge about it was

5 best shown by a witness who was the head of the monitoring mission in

6 Mostar, who explained the entire situation in Mostar and, in particular,

7 Martinovic's role in it. Witness Gerner [phoen] was put a specific

8 question as to how he, a person who was now retired and who was in Mostar

9 throughout the relevant period, how he saw the role of a soldier such as

10 Vinko Martinovic under the circumstances that were known at the time with

11 the separation line in Mostar. He said that such a soldier could only

12 afford to think about how to keep his head on his shoulders for 24 hours a

13 day. He could not have access to any other information or knowledge.

14 Therefore, I believe it has been established that Martinovic did

15 not know and could not have known about the existence of an international

16 armed conflict and that therefore he cannot be held responsible for it.

17 Furthermore, it is the position of the Defence that the accused

18 cannot be charged with the existence of an international armed conflict as

19 a fact that was established only at a later stage but which constitutes a

20 very significant element of the criminal offence. It is the opinion of

21 the Defence that in order for a person to be held liable for a criminal

22 offence, he has to be aware of all the elements of the offence and has to

23 have the intent to commit the offence. Martinovic could not have known

24 about the existence of an international armed conflict and did not have

25 the intent to participate in it. He was fighting in front of his home

Page 178

1 against his fellow citizens who lived across from where he lived on the

2 other side of the street, whereas he is being charged here as an

3 aggressor, as a person who participated in the forces of an aggressor.

4 This has nothing to do with the evidence adduced in this case.

5 We believe that Martinovic's subjective relation to the

6 international armed conflict must be considered as an important element of

7 the crimes under Article 2 of the Statute. It is our opinion that in a

8 criminal proceeding, nobody can be held liable for criminal responsibility

9 under those circumstances, and the very fact that in objective terms there

10 was an international armed conflict, this does not automatically incur

11 Martinovic's criminal responsibility. There is no strict liability in

12 criminal law unless there is the awareness and the intent. In the absence

13 of these, there can be no responsibility.

14 This is our position in relation to this fact.

15 Furthermore, in relation to the first part of the appeals brief

16 dealing with errors of law, we have presented our objections to the

17 alternative charging and cumulative convictions. I would like to go back

18 to this issue in connection with the Judges' questions.

19 I will now turn to the second ground of appeal, i.e., errors of

20 fact, that is Counts 13 and 14, murder of Harmandzic.

21 The central part of the judgement is the conviction of Mr. Vinko

22 Martinovic for the murder of Nenad Harmandzic. I appeal to the Appeals

23 Chamber to closely review our appeal in relation to these counts.

24 There are three challenges raised by the Defence in this respect:

25 First, that the Trial Chamber erred in finding that the documents adduced

Page 179

1 by the Defence are incorrect. Second, the Trial Chamber erred in

2 excluding the evidence or rather in deeming the evidence of a witness,

3 Defence witness, not credible. Third, the Trial Chamber erred in

4 identifying the -- in finding the identification of Nenad Harmandzic as

5 proper. These are the three errors that I will try to further elaborate

6 on.

7 In paragraph 503, Trial Chamber finds that Nenad Harmandzic was

8 seen for the last time in Vinko Martinovic's unit, and it is on this basis

9 that the Trial Chamber concludes that Nenad Harmandzic found his death in

10 this unit.

11 The only fact that is not in dispute from this paragraph is that

12 Nenad Harmandzic was in Vinko Martinovic's unit. The only controversial

13 matter is whether he was later on in the hands of a different unit. If it

14 were to be proved that Nenad Harmandzic was subsequently held by members

15 of a different unit, then Vinko Martinovic must be acquitted of this

16 conviction.

17 Throughout the trial, this is precisely what the Defence

18 submitted, that Nenad Harmandzic had been returned to Heliodrom from Vinko

19 Martinovic's unit, whence he was taken to a different unit and disappeared

20 without trace.

21 The Defence based its submissions exclusively on the documents

22 provided by the Prosecutor. Which evidence was that specifically? The

23 testimony of Witness AD, the closest relative of Nenad Harmandzic, stated

24 before the Tribunal that on the 12th of July, he had seen Harmandzic in

25 Vinko Martinovic's unit and that he had heard that subsequently he was

Page 180

1 returned to Heliodrom on the 12th of July.

2 Now, did Harmandzic disappear without trace on the 12th of July?

3 And is it true that he left Martinovic's unit alive? The Prosecutor

4 provided documents which show that the next day, on the 13th of July,

5 Nenad Harmandzic was alive and well in the detention centre of Heliodrom

6 from where he was taken on the 13th of July to the premises of the

7 military police unit for labour, a unit which are had nothing to do with

8 Vinko Martinovic.

9 The documents show that subsequently Harmandzic fled from this

10 particular unit and disappeared without trace. Therefore, this was the

11 Prosecution witness and the Prosecution documentation that told us the

12 entire tale concerning Nenad Harmandzic which had an unfortunate ending in

13 the 1st Light Assault Military Police Unit on the 13th of July.

14 The only reasonable inference from this evidence, and I wish to

15 reiterate that this is Prosecution evidence, is that Vinko Martinovic

16 cannot be held responsible for the -- for murder.

17 So how did it come that the Trial Chamber convicted Martinovic for

18 murder? First of all, the Trial Chamber stated that the contents of these

19 documents were incorrect. That was the first inference which we

20 considered to be erroneous. So how did the Trial Chamber arrive at this

21 inference? None of the witnesses stated anything to that effect. This

22 was an inference made by the Trial Chamber on its own, by simply

23 concluding that the documents were not correct as well as the testimony of

24 Witness AD.

25 The Defence wishes to defend the right of the accused to be tried

Page 181

1 on the basis of evidence and not on the basis of presumptions. We submit

2 that the Trial Chamber could not base its inference on any piece of

3 evidence to the effect that these documents were incorrect and base its

4 conviction on this inference.

5 Let us look at the erroneous inferences of which the Trial Chamber

6 bases its conviction. Paragraph 491 of the judgement, the Trial Chamber

7 states, in document PP454, it states that on the 13th of July, Milenko

8 Cule, Cuke, took Harmandzic to the military police unit. The Trial

9 Chamber assumes that Harmandzic was not taken to this unit, as stated in

10 the document, but, rather, to Martinovic's unit. So where does this

11 assumption come from? The Trial Chamber states that this was a common

12 practice and that he must have been taken into a different unit. This is

13 not true. This was not a common practice, because there were such

14 instances where drivers would take prisoners from one unit to another, but

15 the evidence adduced in relation to this do not show this.

16 In paragraph 492, in relation to another exhibit, PP774, it is

17 stated that Harmandzic fled from that unit. The Trial Chamber concludes

18 that the documents are false in claiming this. Therefore, the Trial

19 Chamber again concludes arbitrarily that the document contained false

20 information. This has even been taken as a piece of evidence against

21 Martinovic, that this document was to have been used to cover up for the

22 entire story. [No interpretation].

23 Something perhaps is not wrong but I will continue.

24 Everything is all right now.

25 I would briefly like to speak about the assumption of the Trial

Page 182

1 Chamber that this one document, included false information, and that is

2 why the entire document is false. That is the Trial Chamber's assumption.

3 So where does this idea come that there was false information

4 there? According to the Trial Chamber, the driver of Martinovic was

5 instructed once he came to Heliodrom to falsely inform the Heliodrom staff

6 that Harmandzic had escaped and that is the basis on which the Trial

7 Chamber builds its theory, a construction, about how this false document

8 came about.

9 However, what is not quite right here? That is that in all of

10 these documents, you have the name of Milenko Cule from the military

11 police, and in all the parallel documents you have another person from the

12 military police appearing in the documents. If the assumption of the

13 Trial Chamber were correct, that now Martinovic's driver had brought false

14 information and it would not have been possible to put in a different unit

15 and it would not have been possible for him to be asked where is detainee

16 Harmandzic and for him to say, well, he was with us today and he has just

17 fled from the military police, when this assumption were to be true, then

18 it would always have been written ultimately from which unit he had

19 escaped. So therefore, these assumptions of the Trial Chamber, that wrong

20 information was entered into the documents, simply cannot hold. The

21 testimony of Witness AD is easily ignored and simply a new construction is

22 made on this basis.

23 The position of the Defence again is that the Trial Chamber

24 reached on its own initiative several unfounded assumptions based on which

25 they drew the wrong conclusion about the incorrect information from the

Page 183

1 documents which I cited and then shed a completely false light on a number

2 of exhibits. If we remove these assumptions what are we left with? Pure

3 objective exhibits which speak for themselves, documents where, how, and

4 when he disappeared, and we have Prosecution Witness AD who confirmed the

5 dates when he was returned.

6 So if we remove the assumptions, we have the clear conclusion that

7 Nenad Harmandzic disappeared on the 13th of July, 1993 from the military

8 police unit and could not -- this could not be the responsibility of

9 Martinovic. However, the Trial Chamber drew a completely different

10 conclusion.

11 This is only one part of the mistakes in relation to the

12 documents. The Trial Chamber did try to explain all of their

13 conclusions. In paragraph 507, the Chamber summarises why Martinovic is

14 guilty. It said that he incited his soldiers to mistreat Harmandzic when

15 he was there. He prevented Harmandzic from returning to Heliodrom. He

16 gave false instructions to his driver that Harmandzic had fled, and he

17 gave instructions on the burial of the body of Harmandzic and how to

18 conceal this act.

19 Our question -- now I'm moving to the second error by the Chamber,

20 what is the basis of the conclusions of the Trial Chamber on the burial,

21 the false information by the driver and so on? The basis is just the

22 testimony of one witness, a Prosecution key witness, who testified in

23 public and that is Halil Ajanic. All of this, therefore, is based on

24 one testimony from which the Trial Chamber bases its conclusions and draws

25 its picture. What kind of a witness is Halil Ajanic? The Trial Chamber

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Page 185

1 says this is a reliable, sincere witness who did not try to conceal his

2 psychiatric difficulties. Psychiatric difficulties, why does

3 the Chamber mention that? Because we had brought an expert witness here,

4 Drazen Begic, a psychiatrist, an expert witness, and we gave him all the

5 medical records of Witness Ajanic, and we asked Expert Begic whether this

6 person, in this particular mental state, could be a reliable witness, and

7 Psychiatrist Begic says this person suffers from alcoholic psychosis which

8 implies hallucinations, all kinds of disturbed thoughts. He also suffers

9 from amnesiac syndrome, failure of memory, bad, weak concentration, and he

10 also suffers from debility, which is a degree of mental retardation,

11 making him uncritical and susceptible to influence. That is as much as

12 our expert witness psychiatrist said about this witness.

13 What are our objections to the decisions by the Trial Chamber?

14 The Trial Chamber rejected the expert's findings. The Trial Chamber found

15 that it was all right for -- that -- and found that this was a sincere

16 witness, regardless of his psychological problems. The Trial Chamber, who

17 are lawyers, cannot reach, and in that way, eliminate expert opinions

18 about the mental condition of a witness. According to the Trial Chamber,

19 this psychiatrist expert witness or his findings are not meritorious but

20 the findings of the Trial Chamber is meritorious.

21 I do not wish to go into why the Chamber disregarded Begic's

22 findings. The Trial Chamber stated that the -- that Dr. Begic did not

23 examine the witness, that he came to his conclusions based on the medical

24 documentation. He was given the diagnosis, he looked at it, he came here

25 and gave his opinion. The Trial Chamber was of the opinion that this was

Page 186

1 just done on the basis of documents and therefore did not find it

2 acceptable.

3 This is our second objection, a key witness from whom all of these

4 theories stem, who happens to be a psychologically sick person, according

5 to us, cannot have more weight and the Trial Chamber cannot disregard an

6 expert opinion unless there is another parallel expert witness that can be

7 used to support its view.

8 Another question which for us is also very important concerns

9 another error of the Trial Chamber, and that is the verification of Nenad

10 Harmandzic. We had a whole new situation where Nenad Harmandzic had

11 disappeared, and now during a mass exhumation in Mostar, allegedly his

12 body was identified on that occasion. No DNA analysis was carried out.

13 Identification was done without DNA analysis, and the conclusion presented

14 here to us by Dr. Zujo, a forensic expert, is that this was the body of

15 Nenad Harmandzic.

16 Why is this important? If this happens to be his body, then many

17 of these stories by witnesses can fit in on whether he was with Martinovic

18 or not. This is an important question, which is important because it can

19 be inserted into various parts of this whole story.

20 Very well. Zujo, this expert for -- a forensic expert said that

21 this was the body of Nenad Harmandzic. The Defence brought before the

22 Trial Chamber another expert, Dr. Josip Skavic, an expert who carried out

23 the largest number of identifications in Europe because he just happened

24 to be heading the teams in this country which had been waging war for a

25 number of years.

Page 187

1 We called expert Skavic to double-check Dr. Zujo's findings and to

2 say whether this identification was carried out properly or not. Skavic

3 said there is a large mistake which was done in the identification. The

4 identification cannot be reliable because Harmandzic was 1.92 metres tall.

5 When we take this body and measure the length of the bones, it was

6 established that the person in question was between 1.82 to 1.85 metres

7 tall. So there is a difference of 16 centimetres in these calculations,

8 and it has to be taken into account in deciding whether this was that

9 person or not. Skavic said that such a large difference in measurement is

10 something that indicates that it is not reliable to say that this was the

11 same person. There is a margin of perhaps three or four centimetres that

12 is tolerated but not one of 16 centimetres.

13 The Defence says all right, the identification was not conducted

14 properly. Let's put aside all of these testimonies and everything that

15 relates to the -- that body. This is the error of the Trial Chamber that

16 we are pointing out for the Appeals Chamber. The Trial Chamber said it's

17 all right, what Dr. Zujo said, but it's not all right what expert Skavic

18 said.

19 The Defence again asks itself how the Trial Chamber can decide on

20 an absolutely expert question such as the identification of a person, and

21 having heard two experts with two different opinions, how can the Trial

22 Chamber reach a meritorious decision on that? It did not meet its

23 obligations in deciding which of the two experts was right.

24 And this is actually the basis of all subsequent mistakes.

25 I would like to just mention three important mistakes in this

Page 188

1 basis of appeal, wrong documents, mistaken testimony by a witness, and

2 also testimony of expert witnesses regarding the identification.

3 JUDGE POCAR: I find myself a bit lost with your calculations as

4 to the identification. You mention 1.92 metres and then between 1.82 and

5 1.85 and then you made a difference of 16 centimetres. Do you have the

6 exact figures? Because --

7 MR. PAR: [Interpretation] Yes. This is quite possible, Your

8 Honour. I will give you the precise number.

9 Dr. Josip Skavic, expert witness of the Defence, brought into

10 question this identification claiming that this particular body was

11 between 1.82 and 1.85 metres tall. Nenad Harmandzic actually, when he was

12 alive, was 1.92 -- 1.92 centimetres tall.

13 THE INTERPRETER: 1.96, interpreter's correction.

14 MR. PAR: [Interpretation] So this mistake, from 196 to 182,

15 according to me is, let's see, oh, it's 14 centimetres. Yes, 14

16 centimetres. And from 1.95 to 1.96 it's 11 centimetres. That would be

17 it. My apologies, Your Honour, for making this mistake in my

18 calculations.

19 I will continue.

20 Isn't it absurd that in order to prove the killing of Harmandzic

21 the Prosecution has to dispute its own document? In order to prove that,

22 they have to disprove or dispute their own documents and their own

23 witness. In that case, what did the Defence do? It just brought two

24 experts, which were then eliminated by the Trial Chamber outside of their

25 area of competence, and this is why we would like to have Martinovic

Page 189

1 acquitted on this count.

2 Now I would like to move to a second incident described as the

3 incident with the wooden rifles. That is what we refer to during the

4 trial. These are Counts 2, 3, 4 and 5.

5 According to this item, the Trial Chamber decided that Martinovic

6 was guilty because on the 17th of September 1993, he was heading an

7 offensive by the HVO in the Bulevar Street and that under his command or

8 order, several detainees were given false wooden rifles and that they were

9 forced to walk along a tank in order to find where the enemy positions

10 were.

11 In reference to this count, the Defence claimed right from the

12 beginning that this incident actually happened in a different unit. It

13 did happen but in a different unit, and now Martinovic is being charged

14 with it for the simple reason because Vinko Martinovic was the only person

15 here from Mostar on trial at that time. That event did happen but it

16 happened in a different unit. Now, we have Vinko Martinovic in the

17 court-room, we have an incident, and we put them together. This was

18 something that the Defence stated at the time.

19 Why are we saying that? Again, we take the Prosecution document.

20 We don't have our own documents on this. According to Prosecution

21 documents, this action on the 17th of September, it says that Vinko

22 Martinovic did not head this action, he refused to, and it was led by a

23 different person. In this document, PP608, the action is described that

24 entire day what happened and so on. However, there is nothing there about

25 war prisoners, prisoners of war. There are no tanks. There is none of

Page 190

1 this that Martinovic is being charged with.

2 Further, in Prosecution document P601, item 1, it states that all

3 of those persons who came, who were brought on the 17th to Martinovic were

4 all regularly returned to the Heliodrom, and we don't have there story

5 given to us by the Prosecutor that some of them fled, some of them were

6 wounded and so on.

7 Prosecution document P601.1, as well as another one, P601, as well

8 as another one, P601.12, also says that.

9 The Trial Chamber asks me where was it that I actually found in

10 this document that it says that these prisoners of war were returned? I

11 have brought this document. I checked that in the records. It's P601.1.

12 It's a little bit difficult to find because these are log books with a lot

13 of pages, and I will tell you this is page 01535273 entitled the

14 17th of September, 1993. And in reference to Vinko Martinovic's unit

15 called Vinko Skrobo, it says, which prisoners of war were taken for labour

16 to him, and at the end it says which ones were returned, returned on the

17 27th of September at 1940 hours. So they were taken to Martinovic on

18 the 17th and were returned on the 27th of September at 1940 hours.

19 This second document that I referred to entitled -- or with the

20 number P55612.1 it says the prisoners were brought to Martinovic. And

21 then it says on the 27th of September, the remaining 12 detainees were

22 returned who had been held over for labour. I do not want to spend too

23 much time on this. The Appeals Chamber will have the opportunity to

24 peruse the documents. They asked for the reference, and now I have given

25 the reference.

Page 191

1 What are we trying to say? First of all, we are saying the event

2 did not occur in the unit. All the prisoners 245 that were brought to

3 Martinovic were returned and the wooden rifle story was transplanted to

4 the Vinko Martinovic unit and that is what we are stating.

5 The Trial Chamber did not accept this. We hope that the Appeals

6 Chamber will accept it. The Trial Chamber stated that they had witness

7 statements --

8 JUDGE POCAR: Judge Schomburg wanted to put to you a question.

9 JUDGE SCHOMBURG: Thank you very much, Mr. President.

10 Whilst you are just referring to documents, exhibits -- sorry that

11 I only come back now to the point in relation to the alleged killing. You

12 refer to a document D2/14 in this context, and according to the Registry

13 there was no exhibit admitted as Exhibit D2/14 or D214. To which document

14 are you referring, please? Thank you.

15 MR. PAR: [Interpretation] The document D2/14 has a different

16 number classified as P, I don't have it here, but this document was

17 admitted into evidence under a different number. I may perhaps look into

18 the matter over the break and then come back to you.

19 JUDGE SCHOMBURG: Thank you.

20 MR. PAR: [Interpretation] There is a different number and I will

21 do my best to find it.

22 Let us go back to the wooden rifles incident. The Defence

23 position is that the documents indicate that this incident did not take

24 place in our unit. Now, the Prosecution says we have witness statements

25 to that effect. And there are witnesses PP, J, OO, Q, and others, who

Page 192

1 testified as to the circumstances of this incident.

2 In paragraph 282, the Trial Chamber states that there are large

3 discrepancies in the witness statements themselves, and the Chamber is of

4 the opinion that they were probably involved in a similar event which took

5 place on that same day with the participation of prisoners. This

6 statement came as a particular surprise to the Defence. This was a

7 completely arbitrary inference drawn by the Trial Chamber. Nobody ever

8 maintained that there were several such events on the same day. The

9 Prosecutor called witnesses to testify only in relation to one event.

10 Since the testimonies differed and allegedly all these persons took part

11 in this incident, the Trial Chamber inferred that probably some of the

12 witnesses referred to another such similar incident transpiring on that

13 same day somewhere else.

14 This is exactly what the Defence claimed, that it had happened

15 elsewhere. To clarify further what our objections in relation to the

16 Trial Chamber inference are, how could the Trial Chamber base such an

17 inference that there were -- there must have been several similar

18 incidents transpiring on the same day simply on the differing witness

19 statements? Because some of the witnesses stated that there was another

20 such incident. This is another error that cannot be overlooked. We do

21 accept that there was one such incident which took place elsewhere but not

22 that there were several such incidents as inferred by the Trial Chamber.

23 The Prosecutor advocated such a thesis in order to patch up differing

24 witness statements by claiming that perhaps some of them might have been

25 elsewhere. However, we find this unacceptable and we have Prosecution

Page 193

1 documents attesting to that.

2 Now, why do these witness testimonies differ so much? We

3 presented matters going to the credibility of these Prosecution witnesses,

4 that these witnesses were being prepared by the secret police. We did not

5 simply fabricate this as a Defence team because this witness testified

6 against us. It wasn't on this basis that we claimed that the witness was

7 proofed by the secret service. At one point, when evidence was lacking in

8 support of the wooden rifles, the Prosecutor appeared in court-room

9 holding one such wooden rifle that they claimed that had been used during

10 the incident because allegedly one of the witnesses stated that they had

11 preserved a rifle. However, while testifying in court-room, he did not

12 want to say how he came by the rifle and where he kept it, and that is how

13 suddenly out of the blue a wooden rifle appeared in the court-room in

14 support of the Prosecution submissions.

15 That's where we mention the secret police as having come into

16 play. Then one day, OTP expert, Apolonia Bos, came to testify in relation

17 to this incident. She was asked about where she came by the rifle, and

18 she replied that she had received it from representatives of the secret

19 police and had originated from an unidentified witness. Our question at

20 the time was why don't we call this person to whom the rifle belonged to

21 testify in the court-room? Apolonia Bos stated that the person did not

22 want to testify unless some of her requests were met, like relocation into

23 a third country, different identity papers and so on. Therefore, one such

24 testimony of a Prosecutor -- Prosecutor's expert testifies to the

25 vagueness of the whole information. Had the Trial Chamber had the

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Page 195

1 sensitivity to notice these details, it would have come to the right

2 conclusion, rather than inferring that there must have been several such

3 incidents.

4 We contend this inference because we find it unacceptable.

5 Therefore, in relation to the wooden rifles incident, we

6 considered that the Trial Chamber erred significantly and that the

7 inference and the conviction should be reversed and the accused acquitted.

8 I have some further comments relating to Counts 2 to 8, and I

9 would therefore like to deal with the third ground of appeal, sentencing,

10 and then I might come back to some of these matters after the break.

11 On the matter of the sentence, which is our third ground of

12 appeal, we respectfully submit that the Appeals Chamber should acquit the

13 accused on all these counts. We appeal the sentence because we believe

14 that the Trial Chamber failed to properly evaluate the mitigating and

15 aggravating circumstances in relation to the accused; namely, the Trial

16 Chamber did not take into consideration as a mitigating circumstance his

17 voluntary surrender to the Tribunal. It failed to consider as a

18 mitigating circumstance the assistance Martinovic afforded to the captured

19 Muslims, Muslim neighbours, and his general attitude toward members of

20 Bosnian Muslim ethnicity. This was not considered as a mitigating

21 circumstance.

22 We also believe that the Trial Chamber erred in considering his

23 command role as an aggravating circumstance. To the question whether

24 Vinko Martinovic surrendered voluntarily to the ICTY, the Trial Chamber

25 replied in the negative. In our opinion, voluntary surrender entails an

Page 196

1 accused's will and actions to be taken to that effect. However, what also

2 needs to be taken into consideration are the general circumstances of the

3 accused at the time when he learns about the indictment. Martinovic was

4 in detention of the county court in Zagreb at the time when he learned of

5 the indictment issued by the ICTY. Now, the question arises as to whether

6 a person who is held in detention can voluntarily surrender to the ICTY at

7 all.

8 Now, the Defence, unlike the Trial Chamber's inference, is of

9 quite the opposite opinion. A detainee is in a position to clearly

10 express his will and take steps to facilitate his extradition to the

11 Tribunal, just as it can express his will not to respond to the summons of

12 the -- of a tribunal, and to hinder extradition. We have several such

13 examples in this particular judgement at hand, two such cases were

14 examined by the Trial Chamber for both accused, and they accused that none

15 of them voluntarily surrendered.

16 Now, Vinko Martinovic clearly expressed his will to voluntarily

17 surrender to the ICTY in The Hague by stating that he wished to be

18 extradited to The Hague at once upon learning of the indictment against

19 him by stating that he did not feel guilty, that he wanted to prove his

20 innocence before this Court without procrastinating his extradition.

21 The state attorney of the Republic of Croatia was opposed to Vinko

22 Martinovic's extradition to The Hague and appealed before the Supreme

23 Court in order to prevent his extradition. Vinko Martinovic also had the

24 right to appeal the extradition decision all the more so since the state

25 attorney of Croatia was opposed to his extradition.

Page 197

1 Now, what did Vinko Martinovic actually do? He stated that he

2 waived his right of appeal and asked that he be extradited to The Hague as

3 soon as possible. Therefore, under these circumstances, Vinko Martinovic

4 clearly expressed his will to be extradited into The Hague and clearly

5 undertook all the actions within his power to facilitate his extradition.

6 Now, what does voluntary -- what does constitute voluntary surrender, if

7 this does not?

8 Therefore, another matter that is very significant in this

9 respect. If voluntary surrender is regarded a mitigating circumstance,

10 the purpose of which is to encourage other accused to voluntarily

11 surrender, then it is in this context that Vinko Martinovic's example is

12 significant because the public at large in Croatia and Bosnia-Herzegovina

13 followed the entire matter through the media, whether he was going to go

14 to The Hague or not, and it was quite clear to the public that Martinovic

15 wanted to go to The Hague without any doubt. However, this Trial Chamber

16 found it doubtful.

17 I think it is quite clear that this should have been considered as

18 a mitigating circumstance in favour of the accused Martinovic.

19 Another important mitigating circumstance that was not even

20 considered by the Trial Chamber, namely Martinovic's attitude and

21 assistance afforded to Muslim prisoners and neighbours during the war.

22 The Defence called dozens of witnesses, Muslims, precisely to deny this

23 black-and-white image that was presented of him, and I have enumerated

24 these witnesses countless times. All of them were victims of persecution,

25 MA -- MB and so on. We have heard what treatment he afforded them. This

Page 198

1 is beyond any dispute, and this wasn't a matter disputed by the Trial

2 Chamber itself. The Trial Chamber simply concluded that these were

3 privileged persons who he decided to assist, whereas he did not assist

4 others.

5 Now, our reasoning is, if I am to be convicted because of those

6 who I did not assist, then I should be granted some credit for those who I

7 did provide assistance to. I do not wish to go back into what the persons

8 testified to, that there was a Muslim family that he concealed in the

9 cellar of his home from the Croatian army, and their testimonies as to how

10 he saved their lives. Unfortunately, I don't have the time to relay all

11 these matters here.

12 I have a question for the Judges now. I will end the sentencing

13 matter in five minutes now, and perhaps I could be allowed to finish this

14 before the break and then resume afterwards on other topics.

15 JUDGE POCAR: Proceed.

16 MR. PAR: [Interpretation] The Defence is of the opinion that there

17 exist very important mitigating circumstances such as the assistance

18 provided to Muslim prisoners, neighbours, some of whom testified before

19 the Tribunal here. In our opinion, the -- all these testimonies

20 constitute an important mitigating circumstance that has to be taken into

21 consideration.

22 On the issue of aggravating circumstances, the Trial Chamber erred

23 in finding that the command role of Vinko Martinovic was an aggravating

24 circumstance. The Defence holds that the mere fact of a person being a

25 commander cannot be an aggravating circumstance held against him,

Page 199

1 especially if he had already been convicted under 7(3). In the case of a

2 commander who really held command, it -- such an aggravating circumstance

3 could hold. However, a person holding a low commanding position cannot be

4 held responsible to the same extent as a general can. I believe that the

5 Trial Chamber erred in finding this as an aggravating circumstance and

6 that as such it cannot stand.

7 Now let us compare the sentences themselves. I wish to say that

8 the sentences passed down in the cases similar to this one prove that the

9 sentence passed in relation to Mr. Martinovic is an unfair one. I did not

10 wish to further elaborate on this. This can be found in our brief.

11 Another important remark, which is a novelty in a way: In the

12 sentencing procedure, the Trial Chamber erroneously evaluated Martinovic's

13 role. The role as evaluated by the Trial Chamber is exaggerated and hence

14 the sentence.

15 Now, why are we of this opinion? At the time of the trial against

16 Naletilic and Martinovic, they were presented as the persons who were

17 responsible for every evil that took place in Mostar. When the sentence

18 was passed for Martinovic and Naletilic, the Prosecutor came up with a new

19 indictment in relation to Mostar involving six Bosnian Croats in pleading

20 joint criminal enterprise. However, where is Martinovic in this

21 particular indictment? Well, he's no where to be found. Had they known

22 at the time of their trial what sort of a responsibility it all incurred

23 they would not have been given such harsh sentences.

24 The Prosecutor must have been preparing for this sentence for

25 seven or eight years. Now, Martinovic was given a sentence that is unfair

Page 200

1 and unduly and disproportionately harsh. Martinovic came here to receive

2 a fair trial and a fair sentence. And he has the same expectations in

3 relation to the Appeals Chamber. That is the only thing he requires, a

4 fair trial and a fair sentence. Our additional evidence that we wanted to

5 lead in the appeals -- at the appeals stage was excluded, and I know that

6 my client is dissatisfied because of it. However, we do have a fair trial

7 now and now we do expect an equally fair sentence.

8 Now, in our opinion, what sort of a sentence would that be? Well,

9 a sentence which follows from a conviction based on allegations proved

10 beyond any doubt, and that would be what I had to say in this part of my

11 presentation.

12 JUDGE POCAR: I thank you, Mr. Par. We will now break for 30

13 minutes.

14 Before doing so, I would like to tell the parties that I've been

15 informed that the redaction we made earlier in the record actually went

16 out to the public because the point was raised too late to -- we have only

17 30 minutes to redact before it goes to the public. So I would like to

18 urge the parties first to be careful in dealing with protected

19 information, and secondly, if they notice that some protected information

20 has been given to raise it immediately with the Bench in order that we can

21 redact it on time.

22 We break until five to 5.00.

23 --- Recess taken at 4.25 p.m.

24 --- On resuming at 4.59 p.m.

25 JUDGE POCAR: So we resume now the hearing.

Page 201

1 [B/C/S on channel 4].

2 MR. PAR: [Interpretation] I did not get an interpretation into

3 Croatian. I don't know if you were getting interpretation. Perhaps we

4 can try to translate. All right. If you understand me, that's fine,

5 then. We can just continue.

6 In this second part, I would like to respond to the questions that

7 the Chamber posed. In preparing for this hearing, there were two groups

8 of questions; one group referred to the imprecisions in the indictment

9 that we noted in our appeal. The second group of questions sought some

10 clarifications regarding certain points.

11 I would like to start from the questions relating to the things

12 that are not quite clear or indistinct points in the indictment relating

13 to paragraphs 143, 184, 417 and 408, as well as paragraphs 431, 434, and

14 453 from our appeals brief.

15 In all of these paragraphs, the Defence stated that the acts cited

16 in these paragraphs were not contained in the indictment. Our position

17 was that we were not charged and therefore could not respond. We were

18 asked by the Trial Chamber whether we had later received sufficient

19 information in order to understand what the charges were. That is at

20 least how I understood it. I would like to respond generally to all of

21 our objections and then perhaps return to some specific paragraphs.

22 In relation to each paragraph where the event was not cited in the

23 indictment, we believe that we were not charged for that particular event

24 or incident. I will go back to the specific paragraphs I mean.

25 Why do I think that? Why do we have this position and how did we

Page 202

1 receive this information? We are of this position because from our legal

2 practice, from the legal schools we come from, it states that the

3 indictment has to clearly state the charges. This is a very clear

4 situation for the accused as well as for us. There can be no dilemmas

5 there.

6 When we came to this Tribunal, we understood that this wasn't

7 quite like that, that there are some broad formulations in the indictment

8 and that we have to be very careful about what the charges are. However,

9 we never actually felt that each testimony by each witness can be part of

10 the indictment. This is something that we encountered only in the

11 judgement whereby each witness statement can be a kind of mini-indictment

12 brought into the statement and then if that should pass, it passes. This

13 is, as far as I'm concerned, something that I did not expect and it's

14 something of a surprise for me. Especially in events where there are

15 specific incidents. For example, the expulsion of the 29th of September.

16 If I have persecutions for the 13th, the 14th, I don't know what other

17 specific dates, perhaps that's not so important right now, I think that

18 when we are talking about the 29th of September, then I'm not charged for

19 that, especially if this is something that is mentioned sporadically by a

20 single witness. I don't know whether my arguments are right or not but

21 I'm just simply stating our views on this particular matter. And not only

22 did we view it like that, but this is also the way we explained it to our

23 client.

24 So the first point of departure was it's not in the indictment, I

25 do not consider myself to be charged. Then witnesses came who spoke in

Page 203

1 the court-room, and then we heard the Prosecutor say that testimony by --

2 or witness statements were provided in time, you could have prepared, we

3 wrote down to which counts of the indictment that referred to so you did

4 not really discharge your duties properly, and you did not pay attention

5 to that. Therefore, that is your failure.

6 It's perhaps a strategy by the Prosecution which brings the

7 Defence into a very difficult position. The Prosecutor stated that the

8 witness statements were provided in time. We were not given a witness

9 statement. We were given thousands of witness statements which, from the

10 very outset, 80 per cent of which they did not plan to bring to trial. We

11 were faced with tonnes of paper, and perhaps amongst those piles of paper

12 there was a witness statement that was planned to be used in the trial.

13 So first of all, when it is says [as interpreted] that the

14 information was received through witness statements, I don't believe that

15 that kind of warning or information was provided to us in the proper way,

16 because we were constantly buried under new witness statements. This went

17 on practically until yesterday. The Prosecution knows that the Defence is

18 in a weaker position. There is only two of us and papers kept arriving

19 and we had to sort through all of them.

20 However, for example, we were provided with a witness statement

21 who then becomes perhaps a key witness, turned into key witness from an

22 anonymous witness, and then it is stated that each count is covered by

23 particular witness statements. Witnesses here testify about everything,

24 however. They refer to each count in the indictment. So I am not in a

25 position to accept an argument that something has been clarified when, for

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Page 205

1 example, such and such a witness comes and that they will testify to all

2 counts of the indictment, or perhaps to 100 per cent of the indictment,

3 and then we have this witness come to the court-room, we listen to them

4 and they say, one day, I don't know whether this was in the fall or in the

5 spring, somebody beat me up, I don't know whether that was here or there,

6 I don't remember who that was with, I don't know any more whether

7 Martinovic was there or not, perhaps he was there, I heard -- well, as far

8 as I'm concerned, I don't consider that that witness is charging me of

9 anything. I cannot focus.

10 On the other hand, I have a very complex indictment, a very

11 complex indictment, containing hundreds of incidents. Well, not hundreds

12 of incidents but a large number of incidents. It's a cumulative

13 indictment with alternative charging. For one act of commission, there

14 are five different qualifications. How -- well, I, not I but the Defence

15 has to be focused. With killing, you have wooden rifles, you have this,

16 you have that, how can I think then that I am charged by a witness who,

17 for example, states that he was -- that some professor was beaten,

18 somebody says, well, I don't know if that's that professor. I don't have

19 the right information.

20 So I'm claiming three things: It was not in the indictment; I was

21 not informed in a timely manner that that's what I would be charged with;

22 and then even when a witness is brought here I'm not given elements in

23 order to put up a defence. I don't know the place. I don't know the

24 event. I can find nothing out from that witness in order to organise an

25 investigation. He doesn't tell me who he was with so I can look for those

Page 206

1 witnesses. Were you there on that day? It's not there. So -- and in

2 particular, what is a problem in all of that, it's just a small

3 indication, it's a small line, there is -- it's one or 200 metres long,

4 then there is another unit farther along, and then there is a third unit,

5 and witnesses are coming every day and they don't remember whether it's

6 this unit or that unit. But anyway, I don't want to tire you any further.

7 I believe that we were not informed in the manner that was proper.

8 I believe that it is not all right that I must consider witness statement

9 to be an indictment, and it's not all right for me to have to investigate

10 what I'm charged with up until the last day, which witness is charging me

11 with what? And these are the reasons why, in all of these counts we

12 believe that we were not charged. We could not have put up a defence

13 because we did not have the relevant elements.

14 I still have a few things to cover briefly.

15 Paragraph 143, order to transfer -- transform a private facility

16 to the Vinko Skrobo command post. This is just one document out of a

17 hundred that were seen here. The witness said one day I was repairing

18 something, I was cleaning and repairing a damaged building. I don't know

19 if we are talking about unlawful labour. Suddenly we find out that after

20 this witness, this building will just happen to have two command offices

21 there. I find out that I have finished indictment, and then in the

22 judgement, I read that Martinovic ordered that private facilities or

23 buildings be turned into military facilities, and we didn't feel that we

24 were charged in the way that it was presented there.

25 Paragraph 184, three incidents of mistreatment of prisoners. I

Page 207

1 also consider that I was not charged for this. Why? This is a typical

2 example when we cannot really put up a defence. We don't know when, we

3 don't know how, we don't know where, we don't know who, we don't have the

4 basic information. Why wasn't this in the indictment? Well, nobody can

5 specify that properly. This is really -- it's not possible to write an

6 indictment around this. Was the Prosecution -- were the Prosecution in a

7 position to do that, and this is clear to any reasonable man, they would

8 have done that, but how could they have written it when they don't have

9 the required elements that we seek? We don't know what we are accused of.

10 And then we have some kind of testimony here, and then ultimately it turns

11 out that we are charged for something like that.

12 This is absolutely unacceptable to me, all of these things. I

13 just felt that I was not charged for that.

14 Paragraph 417, unlawful transfer. We have the situation that I

15 mentioned. This is an event from the 29th of September, 1993. I don't

16 feel accused or charged with that event, but there is one witness who

17 came. He will tell us that he was expelled and transferred across the

18 lines. And then I have a charge for this. The Prosecutor said 600 people

19 were expelled across that line. Where are the witnesses? There was just

20 one witness. Where are these 600 people? For some counts, ten people

21 were brought. It's clear to everyone that 80 per cent of witnesses who

22 appeared here were quite irrelevant. They don't appear anywhere in the

23 judgement.

24 Anyway, what kind of a charge is this? 600 people were allegedly

25 expelled by Martinovic and then he's to be sentenced on the basis of one

Page 208

1 witness who provided the wrong testimony. Where did he make a mistake?

2 He made a mistake just like anybody else could make a mistake. He was in

3 a different place. He was not in the area of his unit. The witness made

4 a mistake and the Trial Chamber made a mistake. Why did the Trial Chamber

5 make a mistake? The witness said I was, we were expelled to a different

6 or transferred to a different part of town near the pulmonary hospital.

7 Let's remember that hospital. Martinovic held the line near the

8 health centre. The facility was called the health centre. These are two

9 different facilities, and they were in the areas of responsibility of two

10 different units. So the witness said, I was transferred to the pulmonary

11 hospital. I think, great, that is the Benko Penavic unit. What do we

12 care?

13 However, the Trial Chamber mixed up the terms, the pulmonary

14 hospital and the medical centre, and they drew their conclusion based on

15 that. According to the Trial Chamber, according to the place where they

16 were displaced, we conclude that this happened in Martinovic's area of

17 responsibility. This is a typical mistake and this is how we were charged

18 for the expulsion of 600 people.

19 Paragraphs 431, 4 --

20 THE INTERPRETER: The interpreter did not hear the number of the

21 two other paragraphs.

22 MR. PAR: [Interpretation] These are counts about the plunder of

23 Martinovic's soldiers and here is the proof. Systematic plunder, there

24 were three witnesses. On this count, there was some Witness F, who also

25 testified about a hundred different counts, wooden rifles, unlawful

Page 209

1 labour, practically everything in the indictment, and he also in a couple

2 of sentences he mentioned something about the -- actually, he focused on

3 the wooden rifles but in a couple of sentences he also talked about a

4 little bit of looting, plunder, and then this will appear in the

5 judgement.

6 Let's see how this actually happened. Let's just find this

7 particular point. Yes. This witness who according to his statement holds

8 Martinovic responsible for plunder. He says, well, I was with some

9 soldiers, we were in some place, I don't know which place, I don't know

10 the town, and so on and so forth.

11 And the Prosecutor asked him, did you see Martinovic there?

12 I did not.

13 Were these units -- soldiers from his unit?

14 Yes, I think there were.

15 Did he know about this?

16 He said, well, I really couldn't be sure. Well, of course he

17 couldn't be sure. Nobody could be sure. For example, such testimony we

18 had.

19 There was another witness, Witness OO. Witness OO: I don't know

20 any specific information. There was plunder somewhere. The soldiers were

21 somewhere but it wasn't checked, where, when, how, what? And then of

22 course there were other mistakes which are evident right away.

23 Witness F stated, I claim that soldiers from Martinovic's unit

24 took me for plunder and I went to plunder with them. Do you know the name

25 of the soldier who took you?

Page 210

1 Answer: Yes. That is a soldier named Zubac. I know him

2 personally.

3 Do you know where you were?

4 I do know.

5 Show it on the map.

6 He showed it on the map. It's an area called Aleksica Kuca.

7 And now let's take out the list of soldiers of Martinovic's unit.

8 There is no Zubac, there is no Zubac. There is a cook called Zradka Zubac

9 [phoen] but he probably didn't mean her. But in the area of Aleksica Kuca

10 which he indicated as the place where he went looting, which was under the

11 responsibility of Benko Penavic unit, there was a soldier called Mario

12 Zubac there and he probably meant him. And we did ask him during the

13 hearing, are you thinking of Mario Zubac?

14 He said, I don't know but he was Zubac.

15 However, Martinovic was convicted of that, that in Aleksica Kuca,

16 his soldier Zubac, a soldier he did not have, ordered plunder. These are

17 all these paragraphs where I believe that the indictment is imprecise and

18 indistinct, and I just simply feel that we are not charged in the proper

19 way. Even a layman could clearly come to this conclusion. I'm not sure

20 about the standards which we could apply here. This is talking about

21 these groups.

22 How much time do I have left? Very well, I still have five

23 minutes.

24 In relation to other questions, there was a question here, let us

25 explain, what did we mean when we said that cumulative charging requires

Page 211

1 the proof of intent. And perhaps we were unclear there. From the very

2 beginning, we were opposed to cumulative and alternative charging. We

3 know what the practice is and that this is accepted but we had to express

4 our position on this.

5 I do not want to elaborate too much on this, but let us just take

6 the example of killing, convicted of -- or charged with killing under 13

7 and 14 counts in the indictment and the other count was wilful killing.

8 The elements of this criminal act are the same. We have one killing, this

9 is my thinking, and we are prosecuting a person for two. And how do we

10 believe that this can be resolved when one single act implies the

11 commission of several crimes? We believe that the aggravated crime can be

12 prosecuted in that case. If in this specific situation the Trial Chamber

13 believed that there were conditions in order to convict under Article 5

14 and Article 2, we believe that it can convict only for the graver crime

15 and that the lesser crime is subsumed in the graver, more serious crime,

16 and we believe that this is very important. This is also important when

17 we are talking about the international nature of the conflict. We will

18 see whether it was proved the intent of participating in an international

19 conflict was proved. If this intent was not proved, please let's not then

20 take the cumulative approach, simply when this approach is taken, it

21 should not be taken if a more serious criminal act can include a lesser

22 criminal act.

23 Why do we insist on this cumulative aspect of charging? When we

24 are talking about expulsions and persecution, we have so many similar acts

25 here and we just don't know how to go about it. It's not so complicated

Page 212

1 regarding the legal qualifications but we have cumulative witnesses here.

2 We have Witness WW whom we considered as irrelevant. He piled up in his

3 statement so many things we didn't even know we were charged for. He

4 piled up a hundred of different acts, the commission of expulsion and I

5 don't know what else. We believe that cumulative charging leads to making

6 one actual event and one witness to a particular type of indictment and

7 then a kind of judgement or conviction that we simply cannot understand

8 where Martinovic would be charged for two murders when actually only just

9 one occurred.

10 Let me just see what else there is of these questions.

11 There was one question where the Trial Chamber -- well, perhaps I

12 could just say something that I feel important -- that is important about

13 alternative charging.

14 Why are we opposed to the alternative charging? These are also in

15 reference to items 13 and 14. The Prosecution charges in the alternative

16 killing, Count 13, or alternatively Count 16, cruel treatment, and

17 Count 17, the infliction of grave suffering. The indictment begins, we --

18 different arguments are brought out and then the Trial Chamber says in the

19 course of the proceedings, evidence is brought and then at the end of the

20 proceedings, there is alternative charging and that will stay.

21 Why do we think now about this alternative charging? We believe,

22 and we are requesting and we would like to see -- we would like to defend

23 our position. If the Prosecution left alternative charging until the end

24 of the proceedings, I believe that the Prosecutor is still in doubt about

25 exactly which criminal acts the accused committed. We believe that in

Page 213

1 that case the Trial Chamber cannot try the accused for the graver crimes.

2 It has to go in favour of the accused and try him for the lesser charges.

3 There has to be a legal standard. When the Prosecution is proceeding with

4 some kind of open doubt, then the Trial Chamber has to try for the lesser

5 crime. That is our position regarding alternative charging.

6 If I have no more time left, I am finished. I have stated all the

7 most important things that I wish to say, and I thank you very much for

8 your attention.

9 JUDGE POCAR: I thank you, Mr. Par.

10 [B/C/S on channel 4].

11 MR. FARRELL: Your Honour, the -- the translation from B/C/S into

12 English comes on channel 4. It appears that the English without

13 translation comes on channel 1. I don't know if that will assist.

14 JUDGE POCAR: Thank you.

15 Well, I was saying we can now move on to the response of the

16 Prosecution. Prosecution will have half an hour this evening to start the

17 response, and then the response will continue tomorrow morning.

18 MR. FARRELL: Thank you, Mr. President.

19 Your Honours, I will be responding to two of the grounds of appeal

20 that were argued this morning. I hope that I will finish my response to

21 the first one, which is international armed conflict, before we retire

22 today and then, if necessary, address the issue of Nenad Harmandzic, the

23 murder, tomorrow morning, and then my colleagues will address the other

24 issues that remain.

25 With respect to the ground of appeal relating to the international

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Page 215

1 armed conflict, I will address one issue that was raised by the Appellant,

2 and that's the factual claim in their brief that Mr. Martinovic did not

3 have any knowledge, awareness or intention required by this Tribunal's law

4 to be found guilty of Article 2 crimes.

5 I would raise one -- well, two preliminary questions. The first

6 one is the issue of the ground of appeal which in my submission appeared

7 to be a factual one, not a legal one, and that the issue raised now is as

8 a result of the intervening decision in the Appeals Chamber in the Kordic

9 and Cerkez case, and therefore I will at the end of my submissions on this

10 issue indicate that the parties, in particular the Prosecution request

11 this now, that the parties be permitted to brief this issue. It was not

12 in the brief of the Appellant, it was not in the Prosecution's response

13 brief. It wasn't an issue until the Kordic Appeals Chamber decision in

14 December of 2004. I will, in any event, address the issues in summary

15 form at this time to give you the Prosecution's position, but if I may say

16 so, it will be in summary form as this matter hasn't been briefed fully.

17 The preliminary legal question is, simply put, whether or not

18 there is a requirement for a contextual element of international armed

19 conflict for there to be a mens rea component of awareness. That

20 preliminary legal question is, according to the Appellant, answered in

21 paragraph 311 of the Kordic Appeals Chamber judgement.

22 If I could just, as background, indicate that the Kordic Appeals

23 Chamber judgement was based on submissions that were on the principle of

24 nullum crimen sine lege, and the decision was based on the principle of

25 nullum crimen sine lege.

Page 216

1 In that case, there was no argument on the mental element

2 necessary for international armed conflict. It wasn't briefed. In fact,

3 in the submissions by counsel for Mr. Kordic, on May the 17th, 2004, at

4 page 319 of the hearing, the argument put forward by the Appellant on

5 nullum crimen sine lege was that the offence under Article 2 could only

6 fall within the jurisdiction of the Tribunal if the offence was recognised

7 as a form of liability under customary international law as it existed at

8 the time the offence was committed. The Appellant did not argue that

9 there is a mental element requirement for international armed conflict.

10 The decision in Kordic, if accepted to stand for the proposition

11 put forward by my friend, essentially in the Prosecution's submission,

12 overrules previous judgements of this Appeals Chamber. The Tadic Appeals

13 Chamber essentially and implicitly, though not addressing the issue

14 directly, established the liability of Mr. Tadic on an objective standard.

15 In the Celebici Appeals Chamber decision, the Celebici Appeals Chamber

16 determined that international armed conflict was established objectively

17 and then determined that the regime of the Geneva Conventions found under

18 Article 2 applied and convicted the Appellants in that case as in Tadic

19 under Article 2 with no finding of a factual awareness of the

20 circumstances related to armed conflict.

21 As well, it's interesting to note that in the Kordic and Cerkez

22 Appeals Chamber, if you accept the Appellant's submission that this

23 created an awareness element, in paragraph 311, Mr. Cerkez was convicted

24 under Count 30 for Article 2 charges of the Statute, and he was convicted

25 for crimes committed in the municipality of Vitez, in the town of Vitez,

Page 217

1 in relation to the detention crimes in Vitez for which he was the

2 commander. As far as I could see, there was no findings by the Appeals

3 Chamber that Mr. Cerkez had knowledge of the factual circumstances

4 surrounding the nature of the conflict in terms of an international armed

5 conflict. At least in my review of the judgement I could not find

6 anything that would support the conclusion that the previous findings in

7 paragraph 311 required that factual finding, and that the Chamber then

8 found those factual findings to support the conviction which was upheld on

9 appeal.

10 Second, paragraph 311 in the determination of the -- what I submit

11 is an actual mens rea element was decided in the context of the principle

12 of nullum crimen sine lege. And it's the Prosecution's submission that

13 this is not a requirement of nullum crimen and that nullum crimen sine

14 lege encompasses essentially two components. First, the prohibition

15 against ex post facto laws, and secondly, the foreseeability and

16 accessibility of the law by the accused.

17 What's interesting is that the foreseeability and accessibility

18 requirement is an objective one. It's whether or not a person could have

19 known that the conduct was criminal and that the essence of the offence,

20 the very essence of the offence could have been foreseen. If nullum

21 crimen is satisfied by an objective element, I fail to see, in my

22 respectful submission, how nullum crimen would require a subjective

23 element going to the mens rea. The nullum crimen requirement is that an

24 accused must have reasonably known at the time that that conduct is

25 considered criminalised, not that the mens rea components have been

Page 218

1 established and that at the time he's committing the offence he must have

2 a certain awareness which the Prosecution must prove for a conviction.

3 Lastly I would note on this issue that even if Kordic was to stand

4 for the proposition that it overturned the implicit findings in both

5 Celebici and Tadic, without reasons and without referring to those

6 decisions, there is, with respect, at least I'm unaware of any support for

7 the proposition, that a perpetrator to be held liable is required to know

8 the -- as a context element, the character of the armed conflict.

9 Even looking to the ICC Statute, Article 8, Article 8 of the ICC

10 Statute specifically states in the introduction to the elements

11 that: "There is no requirement for awareness by the perpetrator of the

12 facts that established the character of the conflict as international or

13 non-international. Commentators on the elements of the ICC Statute have

14 indicated that requiring a perpetrator to know that the character of a

15 certain conflict and requiring the Prosecutor to prove such knowledge

16 would have been too high a threshold not required by existing law."

17 That's the book by Mr. Lee, Roy Lee, The International Criminal Court,

18 Element of Crimes and Rules of Procedure.

19 Another commentator, Mr. Knut Dormann, in his book Elements of War

20 Crimes under the Rome Statute of the International Criminal Court writes

21 that: "The requirement that perpetrator be aware of the international

22 character of an armed conflict was rejected by almost all delegations."

23 If leave is granted to brief this issue, the Prosecution will put

24 these matters and this literature and the supporting material before the

25 Court. If leave is not granted to brief this issue, further in written

Page 219

1 terms, the Prosecution still relies on its -- all its submissions it makes

2 today.

3 Third, the third point is that the Trial Chamber concluded that

4 there was no requirement of a mens rea component in relation to the

5 international nature of the armed conflict. In fact, as I'm sure you're

6 aware, in the Rule 98 bis decision it was raised by the Appellant at the

7 Rule 98 bis stage that there was no evidence to demonstrate that the

8 Appellant had an awareness or knowledge or intention in relation to the

9 international armed conflict. And in that decision, on motion for

10 acquittal of February 28th, 2002, the Trial Chamber said that it was not

11 required. And that was the Prosecution's position throughout the case.

12 So the characterisation that I may have interpreted from my friend

13 that the Prosecution's position in not presenting any evidence of

14 Mr. Martinovic's knowledge of the character of the armed conflict somehow

15 reflected that there was no evidence is, quite frankly, not the issue.

16 This Appeals Chamber in Blaskic has held that when there is an

17 error of law the Chamber itself becomes the trier of fact. Now though the

18 Court has cautioned against that obviously it has held in Blaskic that it

19 would look at all the evidence at a -- on a reasonable doubt standard. If

20 Kordic does stand for the proposition, which of course we submit it

21 shouldn't be interpreted that way, that there is now in the jurisprudence

22 a mens rea component, and that the Trial Chamber was in error, it then

23 falls upon this Chamber to determine whether on the evidence before the

24 Trial Chamber, there was sufficient facts to uphold the convictions under

25 Article 2.

Page 220

1 And in that regard, I will refer you now to the evidence that was

2 before the Trial Chamber and some of those findings in support of the

3 conclusion that they were -- both Appellants, that is -- were aware of the

4 factual circumstances of the international character of the armed

5 conflict. Of course, I'm sure Your Honours appreciate that that's only if

6 this Court finds that Kordic stands for the proposition that it's a

7 requirement.

8 I will now make submissions in relation to both Appellants, and I

9 just wanted to let my learned colleagues for Mr. Naletilic know as I

10 indicated earlier, that as the Defence for Mr. Martinovic raised this

11 issue and as the issue affects both of them, I've attempted to indicate

12 that I would refer to the facts at the hearing, and I have no objection if

13 the Court so leaves and if the Appellant so requires that they be given

14 the opportunity, that is counsel for Mr. Naletilic as well, to respond

15 shortly to the facts I will put forward, only as a matter of fairness

16 since they haven't addressed this issue because I'm raising it now in

17 relation to the Martinovic appeal.

18 Let me give you some of the background, some of the context

19 elements. The Court found at paragraphs 192 and 193, referring to 36

20 exhibits and 12 witnesses, the presence and direct intervention of the

21 Croatian army, that's the term HV, in Bosnia-Herzegovina and in

22 particularly in the area of Mostar in 1993. The Trial Chamber at

23 paragraph 193 said that the HV troops took part in the crimes committed

24 against the Muslims, including in Mostar. There are 14 different

25 witnesses who testified that a Croatian army Brigade known as the Tigers

Page 221

1 was in the Mostar region, including at the Heliodrom detention centre.

2 A number of witnesses testified that an HV Brigade known as the

3 Thunders were also in Herzegovina and in the Mostar region.

4 The Trial Chamber at paragraph 193 noted that several witnesses

5 testified that these HV units were actually stationed at the Heliodrom

6 detention centre during the relevant time periods in the indictment. And

7 I note the previous finding that some of the same victims who were taken

8 out by the Convicts' Battalion, including Mr. Martinovic's Brigade, were

9 also signed out at other times by the Croatian army units from the

10 Heliodrom.

11 I ask you to recall that both Mr. Naletilic and Mr. Martinovic

12 themselves personally went to the Heliodrom on numerous occasions and were

13 identified by witnesses being present there. This is in paragraphs 432

14 to 436 of the trial judgement. It's submitted that it's not logical that

15 the detainees at the Heliodrom would know of the fact that HV units and

16 that those HV units are stationed at the Heliodrom and are operating in

17 Mostar but the influential head of the Convicts' Battalion and his

18 subcommander in the Mostar region would be ignorant of this fact.

19 Let me take you through the judgement for a few moments,

20 recognising the time that I have.

21 If I can ask you to turn to page 193, or I'll simply cite to the

22 evidence and the findings, if you wish.

23 Paragraph 193 in the second sentence of the judgement found at

24 page 65 says the -- talking about the HV troops, says those HV soldiers

25 belong to different units and were based in different locations and at

Page 222

1 times took part in the crimes committed against the Muslim population.

2 If you turn to footnote 533, which is at least in my judgement on

3 the next page, it says Witness AE testified that early on the 9th of May

4 1993, Muslim civilians were arrested by soldiers wearing both HV and HVO

5 uniforms and insignias. A former member of the Convicts' Battalion,

6 witness Falk Simang, testified that HV soldiers took part to the evictions

7 of Muslims in Mostar together with the HVO. That's on the 9th.

8 You'll see in paragraph 534, sorry, footnote 534, the Court also

9 notes halfway through that footnote an exhibit, PP373, according to which

10 the HV participated in the conflict in Mostar on May the 9th, 1993, and

11 lists the exhibits in support of that finding.

12 Now, if I can ask you to turn to the Court's finding related to

13 the attack on May 9th, the one they've just referred to, if I can ask you

14 to turn to paragraph 145 of the judgement. Paragraph 145 talks about two

15 witnesses who were members of the Convicts' Battalion, and the operation

16 in Mostar on the 9th of May. The last sentence reads: "According to

17 witness Ralf Mrachacz, Mladen Naletilic had command authority over the KB

18 during all operations in Mostar."

19 Now, if I can take you to footnote -- the footnote 427, at the

20 very, very end, the last sentence: "The Trial Chamber finds that the

21 testimonies of witnesses Falk Simang and Ralf Mrachacz reliable and

22 credible."

23 Now, let's look at footnote 428 in relation to the testimony of

24 these two witnesses who have been found reliable and credible. Witness

25 Falk Simang also testified about a second operation in Mostar. He states

Page 223

1 that Mladen Naletilic assigned him to a group of BH Croats with whom he

2 marched into Mostar to cleanse one side of the city. He further testified

3 that: "All units who were under General Tuta's order plus from the HV

4 took part in the operation and that the Supreme Commander for us was

5 General Tuta."

6 The Court has found in my respectful submission that not only were

7 there troops in Mostar, not only were they Croatian troops stationed at

8 the Heliodrom which in the Prosecution submissions one could draw an

9 inference of knowledge but the Court actually found that they were

10 operating in conjunction with the Convicts' Battalion and in one operation

11 under Tuta, General Tuta's command.

12 There were other relevant findings, and I won't take you through

13 the judgement to them; I'll just note them. At paragraph 199 of the Trial

14 Chamber judgement, footnote 548, the witness Mrachacz confirmed that most

15 of the Convicts' Battalion equipment was coming from Croatia. Now, I'll

16 ask you to recall that Mrachacz was a mercenary who was a member of the

17 Convicts' Battalion. He didn't speak the language particularly well, and

18 he was in knowledge accepted by the Trial Chamber as credible, that he

19 knew that the equipment was coming from Croatia and it would be somewhat

20 incredible that a soldier of the Convicts' Battalion would know about it

21 but the commander of the Convicts' Battalion and his subcommander would

22 have no idea.

23 In footnote 553, again referring to Mrachacz's testimony, Mrachacz

24 testified that as a member of the Convicts' Battalion he was paid in

25 Croatian money that was brought from Croatia by Naletilic. Exhibit P327,

Page 224

1 (redacted), it states that Naletilic

2 asked Boban and Tudjman for permission to create his own anti-terrorist

3 unit.

4 And lastly, the Prosecution in its closing brief referred to

5 Exhibit P558, which was a handwritten letter apparently from Naletilic to

6 the Croatian Minister of Defence, Gojko Susak, requesting that certain

7 soldiers be permitted to join him in action.

8 It's respectfully submitted that the only reasonable conclusion on

9 not only the evidence but the facts as found would be that if you

10 determine it that it's a requirement, the evidence is conclusive that

11 Mr. Naletilic had the awareness of factual circumstances, and I note that

12 the Kordic Appeals Chamber judgement doesn't indicate what is meant by

13 factual circumstances, whether it's the factual circumstances or just some

14 factual circumstances. It uses as an example the involvement of troops

15 from another country. As you're aware, international armed conflict can

16 be determined on two bases, both the involvement of troops but also

17 overall control, and in this case, there is sufficient evidence to show on

18 both aspects that Mr. Naletilic was involved -- I'm sorry, was aware.

19 If I could in the last five minutes try and finish in relation to

20 the facts against Mr. Martinovic. Once again, I'm sorry it appears the

21 court reporter wasn't getting my submissions.

22 I'm sorry, it was in B/C/S, which probably isn't me as my language

23 skills aren't that good.

24 May I proceed?

25 JUDGE POCAR: Is that okay now?

Page 225

1 MR. FARRELL: Thank you, Mr. President.

2 As I said, I'd ask that you please take into consideration all my

3 previous submissions and the previous findings that I've already referred

4 to. I will now only address specifically additional ones in relation to

5 Mr. Martinovic.

6 Start by recalling a finding of the Trial Chamber at

7 paragraph 195, and at paragraph 195 the Trial Chamber found that the

8 Republic of Croatia in fact organised the sending of the vast majority of

9 the HV troops in Bosnia-Herzegovina. Now you may recall that Witness

10 Simang, Witness Knudsen and Witness QQ were all sent from Croatia and they

11 all ended up in the Convicts' Battalion, and two of them ended up in

12 Mr. Martinovic's battalion.

13 Witness Knudsen testified, at transcript pages 5591 to 5599, that

14 he was in Zagreb with Witness Q and that they were approached about going

15 to Bosnia. They had been previously been involved in conflict including

16 in Bosnia. They were told to see a gentleman by the name of Branko Barbic

17 who they contacted. Mr. Barbic is a military attache for the Parliament

18 of Croatia. They went and saw Mr. Barbic and they met him at the Croatian

19 parliament. Witness Allan Knudsen indicated that he took them into his

20 office at the Croatian parliament and upon deciding to send them to

21 Mostar, he gave them a letter and that letter was that all units in

22 Croatia and Bosnia were to help them to get to Mostar where they were to

23 join the HVO. In fact, Mr. Knudsen testified that the HV army in Croatia

24 provided accommodation and transportation to get them there.

25 Upon their arrival in Mostar, which is in the beginning of

Page 226

1 September, Mr. Knudsen produced the signed document from Branko Barbic

2 from the Parliament of Croatia to Vinko Martinovic, and as Witness QQ

3 testified, he wasn't sure that Mr. Martinovic wanted to accept them at

4 first but on the basis of the document that he was given, he accepted

5 them. In fact, as a result they were assigned an apartment in Mostar.

6 Mr. Knudsen also testifies that in mid-September he was injured

7 and went back to Denmark. After his recovery he returned in October,

8 returned to the Croatian parliament, met with Mr. Barbic, received a

9 letter from him which allowed him to return and returned to

10 Mr. Martinovic's brigade. The second time he went back he kept the

11 letter, and that letter is Exhibit 658. And the letter from Mr. Barbic is

12 addressed to both the Croatian army and the Bosnian Croat army, and it

13 states that Mr. Knudsen is to be sent to one of "our" units in Mostar.

14 It's submitted it's obvious that Mr. Martinovic, in light of the

15 contextual evidence I've referred to and the involvement of the HV in

16 Mostar, their operations on the 9th, their fact that they are at the

17 Heliodrom or Mr. Martinovic sends his troops -- soldiers to collect

18 prisoners and the fact that he's there himself on occasion is overwhelming

19 evidence that he was aware of the troops in Mostar and their involvement

20 in the Bosnian Croat war.

21 As you know, the Court concluded that Mr. Martinovic was involved

22 in the action on May the 9th and was carrying out evictions. The HV units

23 in combat in Mostar in May and there were HV soldiers involved in the

24 evictions. The Court doesn't find to those evictions are the same ones

25 that Mr. Martinovic was involved in, to be fair, but just the evictions in

Page 227

1 May.

2 I also note that in relation to the HV units stationed at the

3 Heliodrom, the Heliodrom logbook, Exhibit P601.1, has an entry for the

4 17th of September 1993. That's the day when detainees were removed for

5 the purposes of forced labour. The Court found that was the date of the

6 wooden rifle incident.

7 In the logbook there is an entry where detainees were taken by the

8 Vinko Skrobo Brigade, which is Mr. Martinovic's brigade, and the next

9 entry below has an entry that the HV Brigade, the Tigers, are signing out

10 detainees for forced labour on the same day. Clearly indicates that they

11 are involved at the same time, at the same place.

12 Witness OO testified at transcript page 5939 that while he was

13 engaged in forced labour at Santiceva Street, which is the street that's

14 not in Mr. Martinovic's zone of responsibility but in the next one, that

15 there were HV units stationed at that area of responsibility. If there

16 are HV units stationed at the area of responsibility close to

17 Mr. Martinovic's in a military operation, I'd submit that it's

18 inconceivable that he wouldn't know who the troops were that were beside

19 him.

20 Mr. Knudsen also testified that he saw HV Croatian army vehicles

21 in front of the headquarters of Vinko Martinovic. That's at

22 paragraph T5662. And also Mrachacz testimony I mentioned earlier is

23 applicable, which is that the Convicts' Battalion equipment supplies and

24 salary came from Croatia, and the Convicts' Battalion included

25 Mr. Martinovic.

Page 228

1 So on the basis of that evidence, it's submitted that the only

2 reasonable conclusion is that they both were aware of the factual

3 circumstances. The Prosecution of course maintains its original

4 position: (1), that it's not a requirement; and (2), that if the Court in

5 Kordic held it is a requirement, that based on the Aleksovski Appeals

6 Chamber decision, which indicated where a decision is made per incuriam,

7 that it is open to this court to reconsider it on the basis that there are

8 cogent reasons. In my respectful submission, if the Kordic Appeals

9 Chamber judgement is interpreted as my friends have interpreted it, as

10 there are no reasons given for the creation of a mens rea element, as the

11 case implicitly overturns the findings in Tadic and Celebici, as there

12 were no submissions on this issue by the parties, I would respectfully

13 submit that the parties in this case be permitted to brief this issue as

14 it was raised for the first time during oral submissions.

15 Thank you for your patience. I see I'm just a little bit over.

16 That ends the submissions.

17 JUDGE POCAR: I thank you, Mr. Farrell.

18 I have found there was something to redact. A document was

19 mentioned that was under seal.

20 MR. FARRELL: Thank you. My apologies.

21 JUDGE POCAR: We will take care of that. This will conclude the

22 hearing for today.

23 We will now adjourn and continue tomorrow morning at 9.00 with the

24 continued response by the Prosecution. They will be followed by the reply

25 by Martinovic. And then we will continue according to the Scheduling

Page 229

1 Order of 16 of September 2005.

2 The hearing stands adjourned.

3 --- Whereupon the hearing adjourned at 6.00 p.m.,

4 to be reconvened on Tuesday, the 18th day of

5 October, 2005, at 9.00 a.m.