1 Friday, 2 June 2006

2 [Appeal Proceedings]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 9.07 a.m.

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

7 Madam Registrar, please call the case.

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

9 IT-95-9-A, the Prosecutor versus Blagoje Simic.

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

11 I would like to know whether Mr. Simic is able to hear and to

12 follow the proceedings in a language that he understands. Thank you,

13 Mr. Simic.

14 I will now ask for the appearances starting with the Prosecution.

15 MR. KREMER: Thank you, Your Honour. Peter Kremer appearing for

16 the Prosecution with Steffen Wirth and Barbara Goy. Kim Fischer, our case

17 manager, is also assisting.

18 JUDGE GUNEY: [Interpretation] Thank you. Let me now turn to the

19 Defence of Mr. Simic.

20 MR. PANTELIC: Good morning, Your Honours. Igor Pantelic, Defence

21 counsel for Dr. Simic, and my colleagues will present themselves. Thank

22 you.

23 JUDGE GUNEY: [Interpretation] Thank you.

24 MR. MURPHY: Good morning, Your Honour. Peter Murphy, also

25 representing Dr. Simic. And with us today we also have

1 Ms. Tatjana Cmeric, and Mr. Jason Moore, an attorney from Houston, Texas

2 in the United States. Your Honour, they have been -- they were involved

3 with the case at the trial stage and have been assisting on a pro bono

4 basis in the appeal. We thought it would be appropriate for them to be

5 hearing for the hearing.

6 JUDGE GUNEY: [Interpretation] Thank you very much. We find it

7 equally appropriate for them attend the hearing today. Thank you.

8 The Appeals Chamber is sitting today to hear oral arguments of the

9 parties in the appeal lodged by Mr. Simic. I will briefly summarise the

10 grounds of appeal raised before the Appeals Chamber in this case, and I

11 will outline the way we shall proceed today.

12 Mr. Simic has appealed the judgement rendered on the 17th of

13 October, 2003, by Trial Chamber II made up of Judge Mumba, the Presiding

14 Judge, Judge Williams, and Judge Lindholm. In the judgement, the Trial

15 Chamber found Blagoje Simic guilty of persecutions, count 1, a crime

16 against humanity; for acts of unlawful arrest and detention of Muslim and

17 Croat civilians in Bosnia; for acts of cruel and inhumane treatment,

18 including beatings, torture, forced labour, assignment -- forced labour

19 assignments, and confinement under inhumane conditions; and for acts of

20 deportation and forcible transfer. Mr. Simic was sentenced by a majority

21 to a term of 17 years of imprisonment.

22 Let me now move to the object or to the subject of the appeal.

23 Mr. Simic filed his appeal against the trial judgement on the 17th of

24 November, 2003. He was then granted leave to file an amended notice of

25 appeal on the 22nd of September, 2004.

1 Mr. Simic has raised 16 grounds of appeal, and I will now

2 summarise them briefly. Under his first and second grounds of appeal,

3 Mr. Simic contends that the Trial Chamber erred by convicting him for

4 participation in a joint criminal enterprise since this form of

5 responsibility had not been pleaded appropriately.

6 Under his grounds three to seven, Mr. Simic challenges the factual

7 and legal findings of the Trial Chamber regarding the existence of a joint

8 criminal enterprise, the aim of which was the persecution of the non-Serb

9 population of Bosanski Samac, his intent to participate in this

10 enterprise, and his contribution to the common criminal purpose.

11 Under his grounds of appeal eight to 12, Mr. Simic has challenged

12 the factual findings of the Trial Chamber related to underlying acts of

13 persecutions. In other words, acts of unlawful arrest and detention, acts

14 of cruel and inhumane treatment including beatings, torture, forced

15 labour, and confinement under inhumane conditions.

16 Under his 13th and 14th grounds of appeal, the appellant alleges

17 errors of law and fact related to the acts of deportation and forcible

18 transfer as a crime against humanity, persecution.

19 Under his 16th ground of appeal, Mr. Simic contends that the Trial

20 Chamber erred by refusing to grant him access to medical records of

21 Witness Steven Todorovic filed under seal in the Todorovic case.

22 Finally, under his 18th ground of appeal, Mr. Simic challenged the

23 prison sentence passed against him.

24 The Appeals Chamber would like to recall that in his appeals

25 brief, Mr. Simic stated that he was withdrawing his 15th and 17th grounds

1 of appeal.

2 The Prosecution has submitted that all grounds of appeal raised by

3 Mr. Simic should be denied.

4 As for the proceedings today, in today's hearing the parties can

5 submit their grounds of appeal in the order they see fit and most

6 appropriate. However, I would like to remind the Prosecution and the

7 Defence of Mr. Simic that we invited them to develop a number of issues in

8 the -- in the Scheduling Order dated 5th of May, 2006, and I'm not going

9 to repeat the contents of this scheduling order.

10 I would now like to recall the standards of review applicable to

11 errors of law or fact raised on appeal. The appeal is not a de novo

12 trial, and the appellant cannot just repeat the arguments already

13 submitted at trial. Under Article 25 of the Statute, the arguments raise

14 the by the appellants should be limited to errors on a question of law

15 invalidating the decision and to errors of fact which have occasioned a

16 miscarriage of justice. Furthermore, the appellant has to submit specific

17 references with regard to supporting elements to its submissions.

18 The hearing of today will be organised according to the Scheduling

19 Order, 5th of May, 2006. First of all, the Defence will part with its

20 submissions between ten past nine and 10.40, and then we'll have a

21 half-hour break, and the Defence will be in a position to continue its

22 submissions until ten past twelve. Then the Prosecution will submit its

23 response for 45 minutes. After the lunch break, between five to one and

24 2.30 p.m., the Prosecution will continue its submissions from 2.30 p.m.

25 to a quarter past four. After a 30-minute break, the Defence will have

1 one hour, from a quarter to five to a quarter to 6.00 p.m. in order to

2 reply. Finally, Mr. Simic will be invited to take the floor if he wishes

3 to do so for a short statement that should not exceed 15 minutes.

4 It work extremely useful for the Appeals Chamber if the parties

5 submitted their arguments in a clear, ordered, and concise manner. At any

6 moment the Judges will, if necessary, interrupt the parties to put

7 questions to them, or they might raise issues following each one of the

8 submissions. If there aren't any questions related to the way today's

9 hearing will be organised, I would now like to ask the Defence to make its

10 submissions.

11 [In English] You have the floor.

12 MR. MURPHY: Mr. President, Your Honours, counsel, distinguished

13 members of the Office of the Prosecutor, we have heeded the remarks of the

14 Appeals Chamber, and we do intend at the hearing today to be very concise.

15 So far as the appellant is concerned, we doubt very much whether we will

16 need the amount of time generously allocated to us by the Appeals Chamber,

17 because it will be our submission that this case really comes down in

18 essence to one or two very important principles which are important not

19 only for justice to be done to this appellant, Dr. Simic, but also for the

20 jurisprudence of the Tribunal in a wider context.

21 As you observed, Mr. President, many of the grounds advanced by

22 Dr. Simic are at least partly factual in nature. We are mindful of the

23 standard of review. Indeed, in our -- the first few paragraphs of our

24 brief we dealt with the law on that subject. And to be candid, we do not

25 think that it is necessary to take up the time of the Appeals Chamber by

1 going into detail as to those grounds. We have presented them in some

2 detail. The Prosecution has also responded in considerable detail with

3 regard to the factual findings and the evidence. And so it will be our

4 intention today to focus exclusively on the issues brought to our

5 attention in the Appeals Chamber's order of the 5th of May, and I hope it

6 will be convenient for the Appeals Chamber if we proceed in exactly the

7 order which has been set out on page 3 of the order of the 5th of May,

8 because it seems to us that that is indeed a logical order and that these

9 grounds do follow one from the other in a logical sequence.

10 And therefore, we will be focusing today on two issues. The first

11 one, broadly stated, being the state of the pleadings, the notice given or

12 not given to the appellant in five successive versions of the indictment,

13 not one of which contained the words "joint criminal enterprise," a

14 pre-trial brief, not one page of which referred to a joint criminal

15 enterprise, and even an opening statement that did not provide notice of a

16 joint criminal enterprise. It will be our position that despite the

17 number of times that the Appeals Chamber has admonished the Prosecution

18 that proper notice must be given to the accused. That was not done in

19 this case until a very late stage of the trial. Now, that contention,

20 it's right to say, is not undisputed. The Prosecution has obviously a

21 different view than we do about that, which they will tell you about when

22 their turn comes, but it is our contention that what happened in this case

23 is nothing less than this: That the first time when the appellant

24 Dr. Simic was made aware that he was facing a charge of joint criminal

25 enterprise as opposed to the charge of aiding and abetting, which he had

1 been led to expect, was when the Prosecution replied to his motion for a

2 verdict of acquittal made under Rule 98 bis at the conclusion of the

3 Prosecution's case. And it was not until closing argument that the

4 Prosecution first used the expression that Dr. Simic had been at the apex

5 of a joint criminal enterprise, a fact which the Trial Chamber then in

6 paragraph 994 of their judgement used as the basis for convicting

7 Dr. Simic and imposing a sentence of 17 years upon him.

8 And it is our position, Your Honour, which I will state with

9 absolute candor, that not only is that state of affairs completely

10 unacceptable in terms of fairness, but that this is actually the worst

11 case that this Appeals Chamber has ever been confronted with in that

12 regard and that the time has come when this Appeals Chamber should, with

13 all due respect, express itself in such forcible terms that this will not

14 happen again.

15 Time after time in a succession of cases, Kvocka, Kupreskic,

16 Krnojelac, Blaskic, Krstic, the Appeals Chamber has criticised the

17 Prosecution for failing to observe the rules, for failing to give adequate

18 notice, and yet we're here again discussing this same issue. And I know

19 I've taken that out of chronological sequence, but the fact is that this

20 is a case that really, compared with the facts of those cases is far

21 worse. And so we will submit at the end of the day that it is appropriate

22 now for the Appeals Chamber not only to take the opportunity to restate

23 the law as you have with respect so many cases in the past, but also to

24 take this opportunity to send a message to the Prosecution that the rules

25 cannot be flouted in the casual manner which they have come to expect.

1 We will have occasion to see in the course of argument today that

2 even the Trial Chamber in this case told the Prosecution that they had

3 failed to exercise the degree of diligence, which was to be expected in

4 giving notice to the accused. It said that at page 155 of the judgement.

5 And yet when confronted with this by our appellate brief, what was their

6 response? At page -- at 2.3, paragraph 2.3 of their response, they said

7 the pleadings are perfectly proper, and that has been their position from

8 first to last.

9 As we will see today, Your Honours, the pleadings in this case

10 were not perfectly proper. They were, in fact, such that the accused had

11 no real notice of the true case against him, but worse than that, was in a

12 sense actively misled into thinking that he was defending against a

13 different case, namely that of aiding and abetting.

14 Your Honours, the first issue that you invited us to deal with in

15 the order of the 5th of May was to explain until what stage of trial

16 proceedings they consider that a defective indictment may be cured in

17 order to put the accused on notice of the concrete charges against him and

18 the facts underpinning them in such a timely manner that he is able to

19 prepare his defence. And I turn now firstly to consider that issue. And

20 as I do so, Your Honour, and I know you have instructed us not to repeat

21 simply what's in our brief and I don't want to do that. But I think it is

22 pertinent to -- to point out to the Trial Chamber exactly what the

23 chronological sequence of events was in this case. I would like

24 Your Honours to see the time frame that we're talking about here and how

25 the events unfolded.

1 At this point I experience, Your Honours, some sense of

2 nervousness, because for the first time being roughly of Your Honours'

3 generation I'm going to confront myself with the marvels of technology in

4 the courtroom and try to give Your Honours a visual presentation of what

5 it is that we are talking about here. If you would bear with me here for

6 one moment.

7 Well, I think I'm going to require the assistance of the technical

8 people, Your Honour. They seem to have disabled my mouse in some way.

9 I'm still not getting it on the court screen.

10 Well -- can we ask one of the technical people to come in? Thank

11 you. I'll pause, Your Honours, so I can get some technical help. It's

12 like any show. It worked in rehearsal, and of course on opening night it

13 doesn't. But what the time line is going to show -- here we are. Help is

14 on the way, I think.

15 I'll do it the old fashioned way, while the technician is trying

16 to help.

17 This is the chronology of events: The original indictment in this

18 case was confirmed as long ago as the 21st of July, 1995, and it

19 subsequently went through a number of amendments, the first one being in

20 August of 1998, and the second be just a short time after that in December

21 1998. Now, at that stage of the proceedings with the Second Amended

22 Indictment it is common ground between the Prosecution and the Defence, I

23 think there is no dispute at all, that at that point there was no language

24 of any kind in the indictment -- ah, there we are. Thank you very much.

25 Your Honour, I'm very grateful to the technical department, and

1 now you'll be able to see visually something of what we're talking about.

2 On the screen there you'll see as I mentioned the confirmation of

3 the first indictment, and I've -- all this procedural history the Trial

4 Chamber meticulously set out in its judgement. I've shown you the

5 paragraph references there.

6 We had the first amended indictment, as I mentioned, and a Second

7 Amended Indictment both in 1998, and as you see, there is no language

8 there of any kind -- Your Honour has it? Good. It's difficult, Your

9 Honour, I know, in this age of modern marvels.

10 We had two amendments. It's common ground really between the

11 Prosecution and the Defence that at that point there was no language at

12 all in the indictment relating to joint criminal enterprise whether

13 specifically or by any other language such as acting in concert or common

14 purpose or anything of that kind.

15 Moving on, we see that -- and this is an important detail, that

16 in December of 1998, the case at that point was assigned not to the Trial

17 Chamber that finally held the trial but to a Pre-Trial Chamber consisting

18 of Judges May, Bennouna and Robson. I think Judge Vaz was substituted at

19 some point. In May 1999, we had the first of two Pre-Trial Conferences.

20 We now I ask Your Honours to notes in 1999, almost four years after the

21 confirmation of the initial indictment and still no mention is made at

22 that Pre-Trial Conference to give the accused any notice of the true

23 nature of the Prosecution's case.

24 In December of 2000, so now more than five years after

25 confirmation of the initial indictment, a very important event. One of

1 the co-accused Steven Todorovic changes his plea to one of guilty, offers

2 to cooperate with the Prosecution, and indeed eventually testifies as a

3 Prosecution witness at the trial. So I think we can infer with some

4 degree of safety that sometime in that period the Prosecutors had spent

5 some time talking to Mr. Todorovic, interviewing him, and gaining access

6 whatever he knew. So now we have five years of Prosecution investigation

7 plus access to information from one of the accused whom Judge Lindholm,

8 incidentally, in his dissenting opinion, referred to as the principal

9 architect of the events that had taken place in Bosanski Samac.

10 So it might have been expected that now the Prosecution would be

11 in a position finally to say to the Defence, "We now understand, although

12 albeit five years later, we now understand what the case is about. You,

13 Dr. Simic, were at the apex of a joint criminal enterprise, and here is

14 an indictment that reflects those facts and gives you notice of the

15 charges that you are going to face at trial." What actually happens is

16 somewhat different.

17 We've now gone to the next slide. In April of 2001, the

18 Prosecution files its pre-trial brief. Now, with respect to this

19 pre-trial brief, the -- the Trial Chamber made a comment, eventually, at

20 152 of the judgement, and I would like to read to Your Honours briefly.

21 We actually set this out at paragraph 18 of our brief, but because it's of

22 some importance, I would like to take a moment to read. This is the Trial

23 Chamber's evaluation of the Prosecution's pre-trial brief. It says this,

24 and I begin the quote: "The Prosecution in its pre-trial brief did not

25 refer specifically to a joint criminal enterprise

1 or any of its possible scenarios or to any of the material basis upon

2 which it is based. While it does contain some mention of the role of the

3 accused, the information is very general and largely a repetition of what

4 is in the amended indictment. The Prosecution pre-trial brief seemed,

5 rather, to be directed at a discussion of the elements of aiding and

6 abetting."

7 I'm sorry, I'm pausing because Judge Vaz may ... Thank you, Your

8 Honour. I'll continue with my quotation.

9 "The Prosecution pre-trial brief seemed, rather, to be directed at

10 a discussion of the elements of aiding and abetting. The matter was not

11 clarified at the Pre-Trial Conference, neither did the Prosecution refer

12 in its opening statement to any form of joint criminal enterprise."

13 That was the Trial Chamber's evaluation of the pre-trial brief,

14 and on reading it it's difficult to disagree.

15 We then move, Your Honour, to what I suspect may be the most

16 contentious issue with respect to the indictment and one which I approach

17 with a certain degree of diffidence. And this is now on the next slide.

18 On the 24th of April, 2001, the Prosecution made a moment for

19 leave to amend the indictment yet again. Now, in the Prosecution's

20 response brief, they asserted that it was this indictment that finally

21 gave notice to the appellant of what the case against him really was.

22 Now, it did not contain the language "joint criminal enterprise," but it

23 contained language which the Prosecution says is the legal equivalent. It

24 referred to acting in concert, it referred to common purpose once, I think

25 reach. But in saying that, I have to tell Your Honours that as we are

1 here today, I believe I'm right in saying that we really don't know what

2 the content of that third amended indictment was, because if you go to the

3 judicial database and retrieve the third amended indictment, indeed as the

4 Prosecution contend it did contain that language, but if you go to the

5 public website of the Tribunal, you'll find a completely different version

6 of the third amended indictment that does not contain any language of that

7 kind at all and is, in fact, in regard to the issue of joint criminal

8 enterprise, is the same exactly as the Second Amended Indictment, i.e., it

9 doesn't refer to it in any manner.

10 This is a very puzzling circumstance, and I'm not sure that I can

11 shed very much light on it, and I'm not sure that the Prosecution at this

12 remove of time can either, but I have to tell you, Your Honours, that

13 there is something very disquieting about this, because I want to take a

14 moment to read a short passage from the motion filed by the Prosecution

15 which resulted in the decision of the 15th of May to grant leave to amend,

16 and this is what was said: It pointed out that Mr. Todorovic had chained

17 his plea, and so they wanted to amend to remove the charges against Mr.

18 Todorovic. And then paragraph 5 of the motion said this: "The charges

19 against Blagoje Simic," this appellant, "Miroslav Tadic and Simo Zaric

20 remain the same as those in the Second Amended Indictment."

21 Paragraph 6 said: "In regard to Blagoje Simic, it said that the

22 charge of command responsibility under 7(3) was being withdrawn." And

23 then it concluded with the following statement, and I ask Your Honours to

24 pay particular attention to this in paragraph 8 of the motion: "Since the

25 only changes to the indictment are the dismissal of counts and the 7(3)

1 responsibility of Blagoje Simic, there is no need to resubmit confirmation

2 material to the Confirming Judge."

3 And in the decision granting leave to amend -- now, remember,

4 Your Honours, please, we're still before the Pre-Trial Chamber now, not

5 the four Judges who heard the trial. The order signed by Judge Robinson

6 says: "Considering the proposed amendments to the indictment and the

7 reasons given in support thereof, considering that the amendments relate

8 solely to the dismissal of counts and the deletion of charges of

9 responsibility, grants the motion and accepts the filing of the third

10 amended indictment as corrected."

11 Now, we done not know in what circumstances two versions of the

12 third amended indictment are in circulation. The motion that I've just

13 referred to was signed by an attorney, a lawyer who is no longer with the

14 Office of the Prosecutor, and frankly, Your Honour, it is a bewildering

15 circumstance, but it is also, in my submission, a very serious matter and

16 one that gives rise to enormous disquiet. What was the content of the

17 third amended indictment?

18 It seems perfectly clear from the decision signed by the Pre-Trial

19 Chamber that what they thought was happening was that the only changes

20 were the deletion of charges to reflect the plea of guilty of

21 Mr . Todorovic and to withdraw the command responsibility allegations

22 against this appellant Dr. Simic. And yet in some manner another version

23 of that amended indictment containing language said to support the

24 allegation of joint criminal enterprise found its way to the three -- the

25 three new Judges to whom the case was assigned for trial.

1 And what is particularly serious about this, Your Honours, and I

2 come now to -- to move on to the next slide, and you'll see that towards

3 the right of that slide during trial, three months into trial now,

4 December 2001, leave is granted to amend the indictment again, the 20th of

5 December. It contained, actually, a number of amendments, quite

6 substantive amendments, but the one that we focus on is really concerned

7 again with the language "acting in concert together," and what the

8 Prosecution did -- were allowed to do was to amend the indictment to

9 insert that language in a number of different places in the indictment to

10 make it abundantly clear that was going on.

11 And I will read to the Court if I may only one footnote from that

12 decision, footnote 11 on page 7 of the decision, which says this, and it's

13 an interesting comment: "At the commencement of the present proceedings

14 on 11 September 2001, all four defendants were asked to plead to the third

15 amended indictment in the presence of their counsel. The Chamber noted

16 that the third amended indictment which was filed and approved by the

17 Pre-Trial Chamber is the one on which these proceedings are based."

18 And so the question arises, among many other things, what would

19 the Trial Chamber have done had they known -- whether they did know or

20 not -- what the state of their knowledge is we don't know, but what would

21 the Trial Chamber have done in regard to that motion to amend if they had

22 known that the Pre-Trial Chamber thought it was approving a third amended

23 indictment whose only significant was that it deleted charges against the

24 accused? And let three months into trial, and this now is where I come --

25 Your Honour, have been patient with me in reciting this chronology, but I

1 hope you understand now why I do it, because when we consider the question

2 what is the latest stage at which the defective indictment can be cured, I

3 invite you to look at what happened in this case. Three months into

4 trial, because of the failure of the Prosecution, and we're now over --

5 we're now over seven years -- six years, rather, from the confirmation of

6 the first indictment, they've had access to Steven Todorovic and six

7 years, three months into trial we're amending the indictment once again,

8 and now it has "acting in concert," written all over it but still not --

9 nobody has taken a pen, even at this late stage, and writing the

10 words "joint criminal enterprise" somewhere on that indictment. And that

11 is -- Your Honour, that is why I say these rules that the Appeals Chamber

12 has emphasised so often are not academic in nature. These are the most

13 practical rules, because faced with the task of defending an accused in

14 these complex proceedings that this Tribunal deals with, one of the few

15 things that the Defence has to work with and must work with is a knowledge

16 and understanding of what exactly the case against the accused is.

17 Finally, we see that on -- in May of 2002, another accused, Milan

18 Simic, not to be accused with this appellant, no relation, entered a plea

19 of guilty. His case was separated from the rest of the case. And, Your

20 Honour, one of the ironies, one of the anomalies Your Honours have picked

21 up I'm sure by now, another result of the Prosecution's failure to plead

22 its case properly was this: That during the trial two accused pleaded

23 guilty and were sentenced and on what basis were they sentenced? Not on

24 the basis of being a joint criminal enterprise, because nobody knew at

25 that point that was the Prosecution's case, really. And if you look at

1 the sentencing proceedings, certainly against Steven Todorovic, there is

2 no suggestion that he was part of a joint criminal enterprise, and yet in

3 relation to this appellant, whose only fault was that he maintained his

4 plea of not guilty throughout the trial, by the time the trial ends he is

5 not only in a joint criminal enterprise but he's the apex of it as we can

6 see.

7 And it's not until the Prosecution's response to the 98 bis

8 motion, September 2002, a little over seven years from the confirmation of

9 the original indictment that finally, finally the Prosecution reveals the

10 truth and says, "Well, our case is really one about a joint criminal

11 enterprise," and then during closing argument they finally say that

12 Dr. Simic was the apex of that joint criminal enterprise and language

13 which the Trial Chamber adopts and makes a part of its judgement and uses

14 as the basis for convicting Dr. Simic and also to sentencing him to 17

15 years' imprisonment. And I'll remind -- we'll come back to this later,

16 but I remind the Appeals Chamber that Dr. Simic was not charged with

17 personally committing any crime. The witness Steven Todorovic who

18 admitted to personally committing a number of horrendous crimes in his

19 capacity as chief of police for the municipality received a sentence of 10

20 years' imprisonment.

21 So, Your Honours, I have -- I'm sorry, I can't remember at what

22 time we were supposed to take the break. Have I overrun my time. 10.40.

23 No, I haven't.

24 So, Your Honour, we -- I come back, then, to the question that the

25 Appeals Chamber has raised: What is the appropriate time, the appropriate

1 stage at which a defective indictment can be cured?

2 We have we -- do have a submission on that, Your Honours, of a

3 fairly definite nature, and it's based upon the fact that a certain

4 reality -- as Your Honours all know being experienced Judges, particularly

5 at this Tribunal, every case that is tried in this Tribunal is of a very

6 complicated nature, hundreds of witnesses, thousands of documents, and

7 pre-trial preparation involves work behind the scenes. As you know, this

8 is an adversarial form of trial. The Defence is responsible for

9 conducting its own investigation. We have to employ investigators to

10 interview witnesses. We have to go and look for documents. It's an

11 enormous amount of work, and all this work has to be accomplished not on

12 the eve of trial but -- but significantly before trial. It's too late

13 when the trial starts. Your Honours know this. When the trial begins in

14 this building, the Defence day after day has to prepare cross-examination.

15 The Prosecution continually will give us further disclosure which we have

16 to digest, and it all gets caught up in frenetic activity. There is no

17 time at that point to sit back and calmly reflect on the strategy. That

18 has to be done prior to trial, it has to be done significantly prior to

19 trial.

20 The issue of whether we were prejudiced, the Trial Chamber, you

21 will recall, having -- while it criticised the Prosecution for its

22 pleadings, said at the same time that there was really no prejudice to the

23 Defence. I think this is at page 155 of the -- of the judgement. The

24 Prosecution jumps on that bandwagon and says, well, of course there was no

25 prejudice. This is at page -- at paragraphs 249 and continuing of the

1 response brief. They say, well, there was no prejudice because, after

2 all, once Dr. Simic found out what nature of the case was, he could have

3 then had witnesses recalled for further cross-examination, or he could

4 have gone out and found further witnesses of his own, or he could have

5 asked for further time to prepare his Defence. The Prosecution overlooked

6 that we did that, actually. We made a motion for that at the close of the

7 Prosecution's case and were denied further time.

8 But Your Honours are all experienced Judges. You know that

9 argument is naive. It's not simply a matter of, well, let's hurriedly

10 revamp our cross-examination because now it's a joint criminal enterprise

11 instead of aiding and abetting. We can't just suddenly take a different

12 tack with a witness this cross-examination and hope that that is going to

13 be effective. If it's a joint criminal enterprise case, we have to know

14 that before trial so that we can investigate it, prepare a

15 cross-examination on a more thorough basis, bring other witnesses,

16 including many of the alleged participants in the joint criminal

17 enterprise who were never called. And the Defence of Dr. Simic was

18 prejudiced at the most fundamental level at a time when it was far too

19 late for him to do anything about it.

20 So what is the rule that we should adopt? Your Honours, I

21 respectfully submit this, and it would be a workable and practical rule,

22 that the Prosecution at the latest should generally plead the case with

23 precision not later than the pre-trial brief. Not later than the

24 pre-trial brief. In other words, when we look at the indictment and we

25 look at the pre-trial brief together, we should at that point be able to

1 say, all right, we now understand what the case is about.

2 The Trial Chamber did in fact, I think, come to a similar

3 conclusion themselves. They seemed to be saying also that if a

4 combination of the indictment and the pre-trial brief were to give

5 sufficient notice that that would be acceptable, and I think that was the

6 basis upon which they ultimately instructed the Prosecution to amend

7 resulting in the fourth amended indictment and finally a fifth amended

8 indictment. But there were two problems with that.

9 Firstly, based on the passage that I've already read to

10 Your Honours, the Trial Chamber itself found that the Prosecution's

11 pre-trial brief did not in fact contain any information about a joint

12 criminal enterprise and that they had not taken any steps to correct it

13 either at the Pre-Trial Conference or during opening statement.

14 And the second problem was that the -- the indictment was amended

15 far too late. We would say that the only amendment that this Appeals

16 Chamber can really rely upon as stating the case is the fourth amended

17 indictment. The Prosecution's going to tell you, well, the third amended

18 indictment is enough and that was before the trial began. But

19 Your Honours have to ask that question, what was the third amended

20 indictment, and the answer is we don't know. We don't know. Because

21 whatever that indictment said or was intended to say I fear may have

22 vanished with the Prosecution personnel responsible for that motion.

23 And that's our basic position, that the Prosecution should believe

24 its case in accordance with the principles that Your Honours have laid

25 down in numerous other cases. The Krnojelac case that we set out in our

1 brief being a good example of that where Your Honours' Chamber put it if I

2 may say so perfectly, that the Prosecution must do two things. Firstly it

3 must plead the case with precision. It must tell the accused exactly what

4 the case is that he must meet and it must do that at the latest, at the

5 latest by the start of trial. And, Your Honours, as a general principle I

6 don't think that could be improved upon. The only gloss that we offer to

7 that is that if Your Honours lay down that it should be in the pre-trial

8 brief, that then sets a benchmark for knowing at exactly what stage we can

9 expect to know. It would be fair to the Prosecution, because by the time

10 they get to the pre-trial brief, they've had time to reflect upon the true

11 nature of the case. They've had time to conclude their investigation,

12 perhaps. And as far as the Defence is concerned, that's really the stage

13 at which we begin to know what the detail of the case is, when we receive

14 that brief. And we submit, Your Honours, that that would be a practical,

15 workable rule that could be applied.

16 And no doubt the Trial Chamber would retain a discretion, as it

17 always does, in a particular case, to say that even if the Prosecution did

18 not meet that standard and the pre-trial brief is not as clear as it

19 should be, perhaps the Trial Chamber could then direct a further amendment

20 of the indictment or say to the Prosecutor, "Look, you know, we'll have a

21 Pre-Trial Conference. At that point you must make it absolutely clear."

22 As Your Honours know the practice seems to be to have the Pre-Trial

23 Conference immediately before the start of trial, so this could present a

24 difficulty, but there might be -- there might be times when the Trial

25 Chamber looking at the way the case is pleaded says, "We will, we think

1 that overall the Prosecution has done an adequate job, and if you clarify

2 it a little bit more at the Pre-Trial Conference then that will be

3 sufficient." The Trial Chamber of course, must retain some degree of

4 discretion. But it's necessary for Your Honours to adopt a general rule.

5 You have asked us what it is, and that would be our response.

6 Your Honours, may I pause and ask whether the Appeals Chamber has

7 any questions as to that submission or anything that I may have said up to

8 this point.

9 JUDGE GUNEY: [Interpretation] Judge Schomburg has a question.

10 JUDGE SCHOMBURG: I have one question referring to the question of

11 prejudice. In our Rule 7(1), you can read all the modes of liability. I

12 think you will accept that all these modes were accumulatively included

13 already in the first indictment. Is it true that joint criminal

14 enterprise is nothing else but an interpretation of committing a crime

15 and, therefore, your client was put on notice already by the first

16 indictment? And what is the prejudice? What could the Defence have done

17 had it known beforehand that the case was not committed as foreseen in the

18 Statute but the interpretation as joint criminal enterprise?

19 So I'm still not convinced what is the prejudice to your client.

20 Thank you.

21 MR. MURPHY: Your Honour, the prejudice is this: That joint

22 criminal enterprise is -- is an entirely different mode of spot with its

23 own particular requirements which have been laid down, as Your Honour

24 knows, in a sequence of cases by this Tribunal starting with the Tadic

25 case analysing joint criminal enterprise in a somewhat complicated way

1 but dividing it into three categories of joint criminal enterprise. And

2 one of the problems that arises when one using the phrase "joint criminal

3 enterprise," as Your Honour knows, that is really a shorthand for a number

4 of different possible factual and legal scenarios. Depending upon which

5 type of criminal enterprise we're talking about, the basis on which the

6 case is put is going to be very different. And so what we have to do on

7 the Defence side when we receive an indictment is -- is to try and

8 identify what the scope of the alleged joint criminal enterprise is.

9 It's very important, Your Honour, not just on the basis of

10 liability but on the basis of what sentence may ultimately be imposed on

11 the accused. If -- in this case, for example, not only was it said

12 eventually that Dr. Simic was a participant in the joint criminal

13 enterprise, but he was said to be the apex of it, a fact that made a huge

14 difference. So what we have to do on the Defence side, Your Honour, is to

15 say well, what is the scope of this joint criminal enterprise?

16 Let me give Your Honour an example that may be pertinent and we

17 put this in our brief, both in the original brief and the reply brief.

18 The -- in this Tribunal, as Your Honour notes -- I'm sorry,

19 Your Honour. I don't know whether.

20 The phrase "joint criminal enterprise" as it applied to the

21 Bosanski Samac case turned out to be rather strange. Your Honour knows

22 that in most of the cases where that has been an issue with Serbian

23 accused, it has all really been a question of the so-called vertical joint

24 criminal enterprise coming down from the leadership of the Republika

25 Srpska in Pale through Mr. Karadzic, Mrs. Plavsic, Mr. Krajisnik, and so

1 on, filtering down to the local level. And Your Honour knows that -- for

2 example, we have documents such as the famous Variant A, Variant B

3 document.

4 Now, early on in this case it could have been supposed, perhaps,

5 that somebody reasonably looking at this case from the Defence standpoint,

6 let's say that we've been given notice it was a joint criminal enterprise

7 case, we could have said, ah, well, in that case then we must look for

8 evidence that we are being connected to the Pale leadership, that

9 Dr. Simic, for example, was getting instructions from Radovan Karadzic

10 rather like Dr. Stakic may have been, and that was going on. And we would

11 have then gone out, conducted an investigation along those lines thinking

12 that we were defending Dr. Simic for a case of that magnitude.

13 JUDGE SCHOMBURG: Just to interrupt you. Isn't it true that

14 during the trial this was a highly disputed question, whether there was a

15 link between the Variant A, Variant B, and the concrete conduct of

16 Mr. Simic? And therefore, I put the question to you that the Trial

17 Chamber declined to say that there is a link established between these

18 events in Pale and that it has been separate from these events in Pale,

19 and therefore my question.

20 MR. MURPHY: Exactly. Your Honour, that's exactly my point. We

21 were faced then the then-Trial Chamber -- then the trial counsel is faced

22 with the reality that the allegation is completely different. And this

23 could have been found out because originally Bosanski Samac was a

24 municipality contained in the Plavsic-Krajisnik indictment. It was

25 deleted from that. And the Prosecution's theory ultimately, as it turned

1 out at the end of the day, was that this was a local conspiracy, what I

2 think we've called a horizontal conspiracy or joint criminal enterprise

3 not involving the leadership outside the municipality at all, which --

4 which -- but simply all the people on the ground, so to speak,

5 Mr. Todorovic, the paramilitaries, the 7th Tactical Unit, everyone who was

6 accused of committing crimes in the municipality, and then Dr. Simic

7 as the Trial Chamber was fond of saying, the most important and

8 influential man in the town, the municipality, is left at the apex.

9 But, Your Honour, when did we find this out if I may ask

10 rhetorically? We found this out certainly at the time when we get a

11 response to the 98 bis motion. If you want to be charitable to the

12 Prosecution, let's say at the time of the fourth amended indictment, but

13 that's really already three months into trial.

14 Now, Your Honour, from an academic point of view, one can -- one

15 can say, well, there's no prejudice because somehow Defence counsel can

16 then turn round and start conducting this new case, but, Your Honours,

17 that's not how it works in the complex world we live in today. You can't

18 prepare a case going to trial thinking that the case is one thing and then

19 it turns out to be another. Your Honour, it's not realistic, and

20 really -- and, Your Honour, at the end of the day not only is it

21 unrealistic, but it's a matter which the Prosecution could so easily have

22 dealt with, so easily have dealt with. After all those years of

23 investigation, after getting the benefit of Mr. Todorovic's knowledge

24 about what went on, Your Honour, they could so easily have remedied this.

25 JUDGE SCHOMBURG: Thank you.

1 JUDGE GUNEY: [Interpretation] Mr. Murphy, Judge Shahabuddeen also

2 has questions for you.

3 Judge Shahabuddeen, you have the floor.

4 JUDGE SHAHABUDDEEN: Mr. Murphy, just to clear my mind, are you or

5 are you not saying that JCE is a kind of mantra and that the Prosecution

6 cannot rely on JCE unless it uses that term in the indictment?

7 MR. MURPHY: Your Honour, I can -- I would not take that position

8 because the phrase "joint criminal enterprise" is, as perhaps I hinted in

9 response to Judge Schomburg's question, no more than an umbrella phrase

10 for different modes of responsibility, which can take quite a wide variety

11 of forms. And one has to say that it would be perhaps possible to plead

12 an indictment with -- with sufficient particularity without using those

13 exact words as long as the indictment made clear, however, what the

14 elements were that the Prosecution alleged.

15 Now, in this case, as I understand it, it may be that I will be

16 corrected at a later stage, but I think the Prosecution's argument here is

17 not so much that those facts were pleaded, and the Trial Chamber certainly

18 didn't think they'd been pleaded, but that by introducing thinks

19 synonymous language acting in concert or common purpose the Prosecution

20 could cure the defect.

21 Your Honour, I don't for a moment suggest that the defect cannot

22 be cured, nor do I suggest that it is strictly necessary to include those

23 specific words, but what is necessary is for the Defence to be left in no

24 doubt as the substance of the allegations. Your Honour, not even the

25 Trial Chamber thought that that had happened, because they took pains more

1 or less to order the Prosecution to amend the indictment twice during

2 trial to get the language right, and it was only at that point they said

3 in the judgement, "Now when these amendments have been made when we read

4 this together with the Prosecution brief defect as that may have been, we

5 can say that the case has at last been pleaded." Your Honour, that was

6 their position.

7 So I would say in answer to Your Honour's question no, it is not

8 strictly necessary, but clearly adequate language must be used.

9 JUDGE SHAHABUDDEEN: Let me ask a follow-up question like this: I

10 am perplexed in mind by a question concerning the degree to which an

11 accused person must be involved in the criminality executed by a group

12 before you can arrive at the conclusion that it is necessary or not

13 necessary to rely on JCE. What I mean is this: Is it necessary, from a

14 Prosecution point of view, to rely on the JCE theory whenever it is sought

15 to make the accused liable for a crime committed by a group of people? Is

16 it not useful to distinguish between two scenarios, one involving JCE in

17 which the accused's will is involved in the will of the group; and two, a

18 case in which you can see the crime is committed entirely because of the

19 will of the accused? In that case uses the group merely so to speak as

20 his instruments. In that second case is he not acting independently to

21 execute his criminal intent mainly making use of the members of the group

22 as the instruments of his actions?

23 MR. MURPHY: I think with respect that Your Honour is exactly

24 right. It's well established, of course, that there can be formed of

25 co-perpetratorship which are distinguishable from joint criminal

1 enterprise, and that is one reason why it's our submission that you don't

2 necessarily cure the defect by simply using language like "acting in

3 concert," because standing alone, that is ambiguous. And as Your Honour

4 says, there can be different forms of committing. And I do agree with

5 Your Honour, respectfully, that, yes, it is possible for the Prosecution

6 to plead precisely a form of commission of certain offences simply by an

7 individual accused possibly with the cooperation or directing others.

8 The only difficulty with that, Your Honour, is then at some point

9 we get in danger as I believe the Trial Chamber did here, and this is

10 really coming to -- moving to another ground, of confusing individual

11 responsibility with what is in effect a form of command responsibility,

12 because once you start talking in terms of one accused controlling a group

13 or directing a group, then of course you have to ask the question, well,

14 was there a line of command, and would it be more appropriate then to

15 charge the accused in that way?

16 I do think, Your Honour, and Your Honour used the term "mantra,"

17 and I think that that is an apt observation. I think it's become perhaps

18 a little too easy today for the Prosecution simply to recite that mantra

19 and hope that that will cover up the absence of precision in defining what

20 it is the accused is actually charged with -- with doing. And I think

21 that was part of the problem here, that even when it was finally revealed

22 that our case was one of joint criminal enterprise, the question that the

23 Trial Chamber faced was what exactly was Dr. Simic's contribution? And as

24 Your Honour knows, the Trial Chamber as a result of that became somewhat

25 confused between individual responsibility under 7(1) and what was

1 effectively a hybrid form almost amounting to 7(3), even though Dr. Simic

2 was not charged with 7(3), and that was a problem.

3 JUDGE SHAHABUDDEEN: Thank you.

4 MR. MURPHY: Your Honour, my colleague, Mr. Pantelic, would like

5 to add a word.

6 MR. PANTELIC: Yes, Mr. President.

7 JUDGE GUNEY: [Interpretation] Yes. So before these few words,

8 Judge Liu would like to ask a few questions.

9 MR. MURPHY: Yes.

10 JUDGE LIU: Thank you, Mr. President.

11 Mr. Murphy, I just want to know when exactly did you realise that

12 your client has been prejudiced by the deficient pleadings of the

13 Prosecution? From your submission I understand that if not at the

14 submission of the third amended indictment but at least after the Rule 98

15 bis response that you should have realised that your client was charged

16 with the participation in a joint criminal enterprise.

17 I just want to know what did you do at that stage to cure that

18 defect? Did you raise this issue to the Trial Chamber, make some

19 objections to the deficient indictment, or change of the strategy, as you

20 put it, or calling some witnesses, or even request for a retrial of this

21 case? Because as an experienced lawyer, you know that you could not hold

22 any objections until the appeal stage. It should have made it immediately

23 at that time.

24 MR. MURPHY: Your Honour, this may be a good moment, since Mr.

25 Pantelic was at trial and I was not, it may be a good moment for me to ask

1 Mr. Pantelic since you wish to address, and observations too, answer

2 Your Honour's question because he's probably in a better position than I

3 am to deal with that.

4 MR. PANTELIC: Thank you.

5 JUDGE GUNEY: [Interpretation] Mr. Pantelic, just a brief question

6 first for Mr. Murphy, one last question.

7 Mr. Murphy, I have a question. I want to get some information.

8 You said that after the presentation of the Prosecution case Defence

9 requested for some more time, some additional time before presenting its

10 own case. This request, as you say, was denied, but did that have to do

11 with the fact that the -- did it have to do with the mode of

12 responsibility? Did that have to do with the mode of responsibility that

13 your client was accused for?

14 MR. MURPHY: Again, Your Honour, let me defer to Mr. Pantelic on

15 that because he was involved at that stage and knows the basis. I can

16 tell Your Honour that the motion was made and I know that it was denied.

17 We did reflect that in our -- in our reply brief, but Mr. Pantelic can

18 perhaps give both Your Honour and Judge Liu more full answers to those

19 questions. It may be more useful than my trying to do so.

20 JUDGE GUNEY: [Interpretation] Thank you very much. Mr. Pantelic,

21 you have the floor and I'm sorry you had to wait.

22 MR. PANTELIC: Than you, Mr. President. And in addition to what

23 my learned colleague, friend Professor Murphy said, and in response to the

24 questions raised by Honourable Judge Schomburg, Honourable

25 Judge Shahabuddeen, Honourable Judge Liu, and you, Mr. President,

1 Honourable Judge Guney. I will try to summarise that.

2 The position of the Defence in this case was that this case was

3 looked in its entirety with several elements. In general terms, these

4 elements are the indictment, pre-trial brief, pre-trial conference,

5 opening statement, list of witnesses, and the process of the trial in

6 narrow form with all witnesses and all exhibits.

7 The understanding of the Defence in this particular case was based

8 on the, of course, general words of the indictment and specific language

9 of Prosecution pre-trial brief, paragraph 33, where the theory of

10 Prosecution case was, that they will prove that the accused were directly

11 involved or aided and abetted by, inter alia, offering practice Kale

12 assistance, providing psychological and moral support or encouragement to

13 the perpetrators of the crime.

14 The Prosecution theory was that in Samac several individuals

15 committed the crime of persecution on a larger scale with the material

16 facts as follows, and I will respectfully remind this Chamber about this

17 particular fact: The Prosecution stated that before the war 17.000 of

18 non-Serbs lived in the municipality of Samac, and after the Dayton Peace

19 Accord, own 300 of them left. So their theory of the case, which was

20 precisely explained in the indictment and also in pre-trial brief in

21 paragraph 117, was that my client and the other co-accused with the other

22 individuals perpetrated large scale of persecution. More than 16.000 of

23 non-Serbs were forced by the alleged act of these individuals to leave the

24 municipality.

25 At the end of the day, in our judgement, I believe it's paragraph

1 33, the Trial Chamber found that -- "The Trial Chamber is of the opinion

2 that in the source of the materials by them," et cetera, et cetera, "do

3 not allow for conclusion to be drawn regarding ethnic cleansing or the

4 forcible displacement of the people or the movements of the people for

5 other reasons during the indictment as pleaded in paragraph 28 of the

6 amended indictment."

7 Our understanding and our work as the Defence during trial was to

8 try to prove the innocence of our clients. The Prosecution case failed in

9 material terms. It failed because theory of 16.000, more than 16.000

10 non-Serbs, which were allegedly expelled simply doesn't exist.

11 And in response to the issue regarding the concept of various form

12 of 7(1) responsibility, I would like to emphasise the issue. We see here

13 after all these years that the Prosecution office very oftenly -- very

14 often use the concept of joint criminal enterprise. I found it somewhere

15 in the library in one of the books I read in regard to this case that --

16 well, it's a case in some other jurisdiction, of course, and the author

17 said that the concept of joint criminal enterprise is a darling of

18 Prosecution, because whenever they don't have a possibility to fit certain

19 form of responsibility, they are pleading on the theory of joint criminal

20 enterprise.

21 In addition to that, the undisputable fact in our case is that

22 the Prosecution theory of persecution in Bosanski Samac at the scale I

23 explained was linked with the Variant A and B and top level of the

24 administration of Republika Srpska and they failed in our case thanks to

25 the certain success, work of defence, they failed with this theory also.

1 So what they invented with Trial Chamber, they invented sort of village

2 joint criminal enterprise, Samac with a population of a couple of

3 thousand people. So they said, "No, we don't have overall system of

4 joint criminal enterprise. We have horizontal, local level," which is,

5 with all due respect, Your Honour, here in the jurisprudence of this

6 Tribunal is absolutely legally unaccented, unacceptable.

7 Now, with the notice of response to acquit the in accordance with

8 Rule 98, well, at the very beginning the understanding of the Defence was

9 that the -- Dr. Simic was the sort of alleged aider and abettor of the

10 crimes committed by the others in Samac case. That was our understanding

11 in accordance with the language of indictment, in accordance with the

12 language of pre-trial brief, in accordance with the Prosecution's

13 submission at the pre-trial conference and opening statement.

14 So at the moment when Prosecution case was over, out of the blue

15 we found that they rely on JCE concept after their case.

16 I'm asking the question: Being in possession of very detailed

17 statement of one of the co-accused and the star witness of the

18 Prosecution, Mr. Todorovic, because he pleaded guilty in year 2000, and

19 now 2001 when we filed this motion for acquittal, why the Prosecution did

20 not use certain elements of his statement and rephrase the word -- words

21 of the indictment and properly pleaded its theory? And in addition, why

22 the Prosecution did not call as the witnesses high-ranking members of the

23 military unit operating in the region of Samac, which is also in

24 accordance with the finding of Trial Chamber are members of so-called

25 local level joint criminal enterprise. Or why the Prosecution did not

1 find certain material, evidence, or a witness statement from the

2 paramilitary units? Because it is well known that Office of the

3 Prosecutor conducting dozens of parallel cases, I'm sure that among all

4 these cases they could find certain material facts and evidences

5 regarding the theory of its case.

6 And finally, Your Honours, I would like to summarise. The

7 understanding of the Dr. Simic Defence was that we are defending our

8 client in its capacity of aider and abettor of certain group in Samac and

9 also without any particular knowledge of the theory of Prosecution case

10 during its case, because all the witnesses and material facts and exhibits

11 presented by the Prosecution during its case were so-called crime base

12 witnesses. None of these witnesses even directed its case towards the

13 issue of concept of joint criminal enterprise.

14 And I would like to thank you for your attention, Your Honours,

15 and I'm free to respond to any of your additional questions.

16 JUDGE GUNEY: [Interpretation] We have a question from Judge Vaz.

17 Judge Vaz, you have the floor.

18 JUDGE VAZ: [Interpretation] Thank you very much, Your Honour.

19 I would like to ask the Defence whether throughout the various

20 amendments of the indictment the list of Prosecution witnesses also

21 changed. Were there changes in the list, and did that cause prejudice to

22 the Defence?

23 I would also like you to specify the following: You are telling

24 us that it's only after the presentation of the Prosecution case that the

25 Prosecutor raised the theory of the joint criminal enterprise. Please

1 tell us in what way, in going from aiding and abetting to joint criminal

2 enterprise, please tell us this disturbed your own defence strategy.

3 MR. PANTELIC: Yes, Your Honour. I would give you a very precise

4 answer. We did not have any additional list of witnesses or exhibits

5 during the Prosecution case in terms of its potential theory of joint

6 criminal enterprise. So we only got the list of witnesses and exhibits

7 regarding the so-called standard of crime base witnesses, victims. Only

8 one of the co-accused who pleaded guilty, Steven Todorovic, was introduced

9 at the end, almost the end of Prosecution case, and also without any word

10 of possible development of the Prosecution theory regarding the joint

11 criminal enterprise.

12 In response to your question regarding the Defence strategy about

13 the Defence case in light of possible shifting of the case of Prosecution,

14 my answer is very simple. The Defence was not disturbed at all with the

15 position of the Prosecution because it was too late for them to shift the

16 and to change the theory. So we were simply presenting our case in -- at

17 our best ability to defend our client in the sense of our understanding of

18 the case, and we knew very well that in accordance with the jurisprudence

19 of this Tribunal and some findings of Appeals Chamber that we shall be

20 here at this stage in appeals proceedings that we shall clarify all these

21 issues.

22 I mean, I would like also to make certain reference to Kupreskic

23 Appeals Chamber decision. Well -- and in addition, what my learned

24 friend, Professor Murphy said, we have to respect certain rules, and we

25 have rules here in order to bring justice and to respect justice. It is

1 absolutely unacceptable knowing that all these years passed and suddenly

2 in last couple months this theory was shifted. So as I said, during

3 Defence case, we tried to defend our client in our understanding in light

4 of the exhibits, in light of the witness statements during Prosecution

5 case, and in light of our strategy of cross-examination of these witnesses

6 during Prosecution case in his capacity as alleged aider and abettor of

7 the crime of persecution, because these words "acting in concert

8 together," included only were limited by the direction of Trial Chamber to

9 count 1, which is persecution.

10 And finally in our further submission we shall come to the issue

11 of mens rea and some other elements that we want to bring to your

12 attention, Your Honours.

13 JUDGE GUNEY: [Interpretation] Thank you, Mr. Pantelic. Sorry.

14 Judge Schomburg would like to ask you a question.

15 JUDGE SCHOMBURG: [Interpretation] Thank you very much,

16 Mr. President.

17 The first question, was it not by the direction of the Trial

18 Chamber but based on the fifth amended indictment that joint criminal

19 enterprise as it reads particularly in paragraph 33 of the indictment,

20 the last sentence that joint criminal enterprise was admitted indeed by

21 the Prosecution in relation to count 1 only. But the more important

22 question for me so the following: Did you ever during trial ever object

23 to the presentation of a fifth amended indictment as you say at the late

24 stage of the proceedings on the basis of being prejudiced by this fifth

25 amended indictment before the beginning of the Defence case? Did you

1 take any steps, for example, to ask for additional time for the

2 preparation of the Defence case or rehearing of witnesses having already

3 been heard during the Prosecution case? Thank you.

4 JUDGE GUNEY: [Interpretation] Mr. Pantelic, I see that the time

5 has come for a 30-minute break. Therefore, it might be better for you to

6 respond when we convene again after the break in 30 minutes.

7 We will resume at ten past eleven. The hearing stands adjourned.

8 --- Recess taken at 10.43 a.m.

9 --- On resuming at 11.15 a.m.

10 JUDGE GUNEY: [Interpretation] Mr. Pantelic, you have the floor to

11 answer the questions put to you by Mr. Schomburg. Can you please focus on

12 the substance of the question. Thank you.

13 MR. PANTELIC: [Interpretation] Thank you, Mr. President. [In

14 English] The question posed by Honourable Judge Schomburg, I would like to

15 say that the Defence objected to the fourth amended indictment, which was

16 by the end of 2001, in the middle of Prosecution case. It was the

17 beginning of December. And the decision on the Prosecution motion for

18 leave to amend the indictment was issued by -- on December 20, 2001. In

19 paragraph 30 of this decision, the Trial Chamber denied Defence request

20 for adjournment in light of the new elements of -- elements of Prosecution

21 theory of the case.

22 In addition to that, I would like to emphasise that the

23 Prosecution did not after the amendment of fourth -- issuance of fourth

24 amended indictment in December 2001 did not provide any additional or a

25 different list of witnesses or exhibits or proofs for its alleged theory

1 of joint criminal enterprise. So the Defence proceeded on the same line

2 of understanding of Prosecution case until the end of its case,

3 Prosecution case, and finally the Defence designed its defence case in

4 accord wants understanding of the elements and the theory of the

5 Prosecution case up to the end of the trial. Yes.

6 JUDGE SCHOMBURG: May I just ask. I asked in relation to the

7 leading instrument of this case, that is the fifth amended indictment, and

8 you answered in relation - correct me if I'm wrong - in relation to the

9 fourth amended indictment.

10 MR. PANTELIC: Yes, Your Honour. In fact, fifth amended

11 indictment was issued on -- on May 30 of 2002, when the other co-accused,

12 Mr. Milan Simic pleaded guilty. So it was simply the deletion of his fame

13 and charges against him. It's just technical matter. But the more

14 important form that we are relying on is -- and the issue is the fourth

15 amended indictment in December 2001.

16 So fifth amended indictment, as you see, dealing only with three

17 co-accused, Mr. Blagoje Simic, Miroslav Tadic, and Simo Zaric. This

18 started in 2001 with four co-accused and the fourth was Milan Simic

19 president of the Executive Board of Municipal Assembly.

20 JUDGE SCHOMBURG: Thank you.

21 MR. PANTELIC: Thank you.

22 JUDGE SHAHABUDDEEN: Mr. Pantelic, may I ask you for clarification

23 of one small point. You did say that Defence objected to the fourth

24 amended indictment, but you went on to speak as if the concern of the

25 Defence was with an adjournment. Now, what was the position of the

1 Defence? Did the Defence object to the fourth amended indictment, or did

2 the Defence simply ask for an adjournment?

3 MR. PANTELIC: Yes, Your Honour. The Defence objected officially,

4 and at the same time, due to the new elements of Prosecution case, we

5 asked for adjournment of at least three months, and Trial Chamber denied

6 our motion. Thank you.

7 JUDGE GUNEY: [Interpretation] Mr. Pantelic, there aren't any other

8 questions for you at this time. You now have until ten past twelve to

9 proceed with your submissions.

10 You have the floor, Mr. Murphy.

11 MR. MURPHY: Interpretation] Thank you, Mr. President.

12 [In English] Your Honours, returning to the order of the 5th of

13 May, the second and third questions are really matters which the Appeals

14 Chamber addressed to the Prosecution, and therefore I will defer any

15 observations on those matters until Mr. Kremer and his colleagues have had

16 the opportunity to -- to deal with those. And I would like to turn, if I

17 may, to the fourth, fifth, and sixth issues, which I think are fairly

18 closely related, where Your Honours raise, firstly, two questions about

19 modes of liability, and then lastly a question relating to sentence. And

20 if I could characterise these questions that you have put to us and try to

21 combine them, and I hope that I will not misrepresent them, the issues

22 that we are asked to deal with are, I think really these: If -- if the

23 Appeals Chamber were to consider this case not on the basis of joint

24 criminal enterprise but on some other basis which does -- which was

25 correctly pleaded in the indictments and the pre-trial brief, what would

1 that mode of liability be? What would be the appropriate mode of

2 liability? And can that supported by the findings of the Trial Chamber?

3 And if it can, lastly, what would be the impact on the sentence that was

4 imposed on Dr. Simic? And I think that I can address these three matters

5 fairly concisely together.

6 In our brief, our appellate brief, Your Honours, we -- we dealt at

7 some length with the Trial Chamber's conclusions about Dr. Simic's

8 liability. This is really now coming in a sense to the fourth ground of

9 appeal as to the basis upon which Dr. Simic was convicted. And without

10 going into detail, because I think we did in our brief in paragraph 42

11 give Your Honours a complete list, as we see it, of the relevant findings

12 made by the Trial Chamber, and I needn't go through all of those, but we

13 summarise the position in this way: We said that essentially what the

14 Trial Chamber did, and one can see it in all of these findings, was make

15 three overarching findings regarding Dr. Simic from which they then

16 proceeded to identify a form of liability. This is at paragraph 41 of our

17 brief.

18 Firstly, they said, well, Dr. Simic was the highest ranking

19 civilian official in the municipality of Samac.

20 Secondly, that despite being in that high-ranking position, he

21 failed to commit the commission -- to prevent the commission of crimes by

22 others, meaning, I think, Todorovic, the paramilitaries, and so on.

23 But thirdly, at the same time, the Trial Chamber conceded that

24 Dr. Simic had in fact no control effectively over the police, over the

25 military, the paramilitaries, or the other claimed wrong-doers.

1 And when we look at the basis upon which Dr. Simic was convicted,

2 it's almost as though the Trial Chamber has convicted him on the basis of

3 not using the power which they thought he had as a high-ranking civilian

4 politician to prevent crimes committed by others. It was not suggested,

5 of course, that Dr. Simic personally committed any crimes. The

6 allegation, rather, was that he simply stood back and did nothing while

7 crimes were committed by others.

8 Now, in our brief we have argued that although -- although clearly

9 there can be liability for omissions, in a situation where the accused has

10 no power to control either de jure or de facto those who are committing

11 the crimes, it is not enough simply that he did nothing. We have cited,

12 as Your Honours will have seen, at some length the Bagilishema case in

13 which Your Honour Judge Guney, of course, was involved in a dissenting

14 opinion, and the Stakic decision as being relevant authorities for looking

15 at how the liability of a high-ranking civilian should be defined for this

16 purpose.

17 Now, the difference between this case and the Stakic case, for

18 example, is that in Stakic the accused was in fact charged both under 7(1)

19 and 7(3). There was, in fact, a live issue of command responsibility.

20 And indeed in this case, up to a certain point, up to the third amended

21 indictment, Dr. Simic was also charged with command responsibility, but

22 for reasons best known to themselves the Prosecution at that point

23 abandoned that allegation and it was deleted. As I read to Your Honours

24 earlier, that was one of the purposes of making the amendment which became

25 the third amended indictment.

1 It's important to emphasise that Dr. Simic was only charged on

2 the basis of individual responsibility under Article 7(1) of the Statute,

3 and yet the findings of the Trial Chamber were really exclusively findings

4 that he failed to prevent the commission of crimes by others, which of

5 course is exactly the -- the definition of command responsibility under

6 Article 7(3). But under Article 7(3), it at least comes with this degree

7 of limitation: That the Prosecution would have to prove the existence of

8 some kind of chain of command. We concede, obviously, that a civilian

9 leader, just as a military leader, can be tried under Article 7(3), but it

10 must be shown that there is a chain of command.

11 In this case, the Prosecution conceded that Dr. Simic actually had

12 no authority to control the -- certainly the military or the paramilitary

13 forces, or even over the chief of police, for that matter, and certainly

14 as a de facto matter Dr. Simic clearly had no power.

15 The Prosecution, in a way, in accusing Dr. Simic of failing to

16 exercise his -- what they claim to have been his considerable influence

17 does not then link that to a legal basis for responsibility. They seem to

18 be making almost a moral argument against him in the sense that, well, he

19 should have done something because he was the highest ranking civilian

20 leader. He didn't do it. He had a responsibility. And yet when we --

21 we -- when it comes to what it is that Dr. Simic actually should have

22 done, what is it that they suggest? In Article 4 of their response brief,

23 they say, well, he should have controlled, let's say, Steven

24 Todorovic, Honour, the chief of police. Your Honour will recall that

25 Judge Lindholm characterised as the principal architect of the events in

1 Samac, who was convicted of -- of very serious crimes he committed

2 personally and, frankly, a man of very evil tendencies.

3 Was Dr. Simic supposed similarly to walk up to a group of

4 paramilitaries armed to the teeth and say, "I'm the president of the

5 Crisis Staff. Stop committing these crimes"? And finally the Prosecution

6 say, well, if all else failed he could have resigned. And I ask

7 rhetorically, what would have been the purpose of that in terms of

8 protecting or helping the citizens of Samac? But they make it into almost

9 a criminal liability based on his moral failure.

10 And let's assume for the sake of argument that that was a moral

11 failure on the part of Dr. Simic. Let's suppose he should have walked up

12 to these armed paramilitaries and Todorovic, the armed chief of police

13 committing these offences when the record showed he was drunk most of the

14 time, and said, "Stop this." Let's suppose that that represented a moral

15 failure on Dr. Simic's part. Does that translate into criminal liability?

16 Well, now, if -- clearly if an omission can sometimes be a basis

17 for criminal responsibility, but we -- but if we analyse the cases in

18 this Tribunal, including the Aleksovski case which we have referred to in

19 our brief in paragraph 44, we see that the -- the omission can only amount

20 to criminal liability where it is in fact a criminal omission, where it is

21 the equivalent of an act, a criminal act, but simply in a negative sense.

22 It's not enough, it's not enough to say that somebody refrain from taking

23 action and that that becomes then an act or omission for which he is

24 criminally responsible. The only time we do that in the jurisprudence in

25 this Tribunal is under Article 3 -- 7(3). Excuse me.

1 Now, it's understandable in a way that the Trial Chamber was

2 confused about the basis for liability because the Prosecution was

3 confused about the basis for liability. We've been discussing so far in

4 relation to the indictment only the possible prejudice to the Defence,

5 only the disadvantages which can accrue to the Defence through this, but I

6 think it's important not to forget that when the Prosecution fails to

7 articulate its case, it also puts the Trial Chamber in a difficulty,

8 because they then have to ascertain as best they can what the theory of

9 criminal responsibility is. And the Trial Chamber clearly did its best

10 given the materials it had to work with, but they were presented with a

11 picture that -- that even at its height, and whatever the moral

12 responsibility of Dr. Simic may have been, when you look at the legal

13 authorities, Aleksovski, Bagilishema, clearly did not amount to criminal

14 responsibility.

15 Dr. Stakic's case as we demonstrate in our brief was entirely

16 different. It was proved that Dr. Stakic had actively been involved in

17 the commission and planning of other offences in numerous ways. He was

18 described as being right at the centre of the activities concerned. No

19 such allegation was made against Dr. Simic. It was simply that he had

20 failed to -- to act. And that was really all of it.

21 So in answer to Your Honours' number 4, is the appellant's spot

22 pleaded in the fifth amended indictment and if so which one and on what

23 basis, I would have to answer in all candor firstly we would say that we

24 stand by our fourth ground of appeal and we say that even if you take

25 every finding of the Trial Chamber at its highest and you make every

1 assumption in favour of the Prosecution, it did not amount to criminal

2 responsibility under the statute of this Tribunal, and I emphasise that,

3 the statute of this Tribunal. It may be that under other criminal law

4 systems we could fashion a form of responsibility that takes that into

5 account, and it may be that if the Prosecution had maintained its theory

6 of Article 7(3) against Dr. Simic it would have provided an appropriate

7 basis, but that, of course, is academic.

8 And so I wanted to make that point first. Then let me go on to

9 say this: If Your Honours are against me on that and if Your Honours feel

10 that the evidence does support some form of liability -- or responsibility

11 on the part of evidence or responsibility on the part of Dr. Simic, that

12 the just resolution of this case when you take into account both the

13 pleadings and evidence and the degree of notice that was given to the

14 Defence, we can say that we certainly did have notice or would have had

15 notice of a theory of aiding and abetting. And certainly if -- if we had

16 to choose, so to speak, the -- the best of several alternatives, we would

17 say that that would do justice to the case. And of course I don't make

18 that as a concession but simply by way of answering Your Honours'

19 question. But it would seem to me that fairness and justice would at

20 least in the sense that Dr. Simic had a fair unity to knoll the case

21 against him, to challenge that case, to present evidence and so on, there

22 can be no question that he was made fully aware of that kind of

23 responsibility and that it would be an

24 appropriate way of -- of dealing with it if Your Honours feel that

25 criminal responsibility does attach. But we would argue if answer to

1 question five, would such -- would the elements of such mode of liability

2 be fulfilled based on the findings in the trial judgement, we would say

3 no, and -- because we have dealt with that at some length in the brief I

4 will not trouble Your Honours by going through that again.

5 So let me lastly -- well, in response to question 6, what would be

6 the effect of a possible requalification of the mode of liability on the

7 sentence, well, we would submit that clearly it would have an effect. Dr.

8 Simic stands convicted as being the apex of the joint criminal enterprise.

9 If that were not true, clearly the position would be very different.

10 In all candor, Your Honours, we would say, and we're going to

11 make a very specific answer to this question, because this is an unusual

12 case in that we do actually have a benchmark to answer that question

13 because we had a divided Trial Chamber. Judge Lindholm, as Your Honours

14 know, took a very different view of the whole issue of criminal

15 responsibility in this case. Although he did vote to convict Dr. Simic,

16 he was -- I don't think I do him any injustice when I say that Judge

17 Lindholm was somewhat skeptical to say the least about the application of

18 joint criminal enterprise in this case. When one reads paragraph 8,

19 paragraph 9 of his dissenting opinion, I think the Judge made that clear.

20 And His Honour reached the conclusion in those paragraphs that

21 what had happened in this case was that certain political and military

22 events occurred in the municipality, and that without any prior conspiracy

23 or joint criminal enterprise, certain people took advantage of the

24 unstable situation to commit a large number of crimes. He found that Dr.

25 Simic had played a role in that, and he thought that the appropriate

1 sentence, and I'm sure His Honour took into account the relative

2 responsibility of Steven Todorovic and others, he found that the

3 appropriate sentence was seven years. Obviously quite a dramatic

4 difference from the majority of the Trial Chamber. And in all candor,

5 Your Honour, we would say that if the Appeals Chamber is minded to

6 requalify the mode of criminal liability in Dr. Simic as we would

7 certainly invite you to consider, we would say in all candor that Judge

8 Lindholm probably got it about right on the issue of sentence.

9 Your Honours, there is only one other matter that I think, having

10 now answered to the best of my ability these questions, there is only one

11 other matter that I would like to address very briefly, and I then will

12 hopefully be able to yield back some of my time subject to any questions

13 that Your Honours may have. Well, perhaps I should pause. Maybe --

14 perhaps Your Honours have some questions arising from the submissions I've

15 just made on questions 4 to 6. It might be convenient for me to answer at

16 this time.

17 JUDGE GUNEY: [Interpretation] Judge Shahabuddeen has a question.

18 JUDGE SHAHABUDDEEN: Mr. Murphy, thank you very much for your

19 helpful submissions. I would like your assistance on one point. You

20 were discoursing most engagingly, if I may say so, on the question of

21 omissions, precisely the circumstances in which an omission could grant

22 criminal responsibility, and I think you said the only time that we do

23 that in the jurisprudence of this Tribunal is under Article 7, paragraph

24 (3). Are you strong on that, Mr. Murphy?

25 MR. MURPHY: Your Honour, if I -- if I put it in that way, let me

1 go back and revise. What I meant to say there was clearly on the basis of

2 the kind of findings that were made in this case, in other words, that

3 when there is no other legal basis for responsibility, the -- we only

4 impose that liability where there is a chain of command and we have -- we

5 have to imply a failure to act. I don't mean to say that omissions can

6 never be a ground of 7(1) responsibility. Indeed, I referred Your Honour

7 to the Aleksovski case where it was made clear that that can be true, but

8 of course it has to be with the same mens rea and other attributes as if

9 it were a positive act, and what we submit is that the Prosecution failed

10 to show that Dr. Simic engaged in that kind of official with -- with the

11 mens rea necessary for criminal responsibility under 7(1). So from that

12 we concluded that the only way to hold him criminally responsible in --

13 given the findings of the Trial Chamber, would have been under a 7(3)

14 theory which the Prosecution had abandoned. So if I misspoke, Your

15 Honour, that's what I meant to convey.

16 JUDGE SHAHABUDDEEN: Thank you, Mr. Murphy. I'm grateful to you

17 for those explanations.

18 JUDGE GUNEY: [Interpretation] Mr. Murphy, can I think that you

19 have finished with your submission in are you done with your submission?

20 MR. MURPHY: I have one more matter to address very briefly and

21 that is it is not directly one of the matters that is in the order of the

22 5th of May, but I think it might be helpful just to comment on it very

23 briefly, and that is our ground of appeal number 3, where we raise what

24 has been known sometimes in the Tribunal as the Celebici rule on

25 circumstantial evidence. This is raised in our brief at page 28. And I

1 can summarise it very briefly by saying that in the Celebici case, the

2 Delalic and others case, the -- page 458 -- paragraph 458 of the Appeals

3 Chamber's judgement, it was -- the Appeals Chamber adopted a rule that in

4 a case that depends on circumstantial evidence, if there was a reasonable

5 explanation consistent with innocence which can be found based upon the of

6 the evidence, a Trial Chamber should adopt that explanation in favour of

7 the accused rather than the -- an explanation that is consistent with

8 guilt.

9 The Prosecution, as I understand it, does not dispute that that

10 is the law. In their brief they, I think, concede that at paragraph 1.4,

11 but in fairness they then do go on to say that the Appeals Chamber should

12 now reconsider that rule. And they cite to the -- in the same paragraphs

13 of their response brief, two decisions one from the United States, one

14 from the House of Lords in England cases which they say have changed that

15 rule about circumstantial evidence.

16 I would like to draw Your Honours' attention specifically to our

17 response to that in the reply brief at paragraphs 2 through 9, because

18 what these cases show when we look at them in detail, and we supplied the

19 Appeals Chamber with the House of Lords' case, it was not given by the

20 Prosecution, but when you look at that decision, what it actually concerns

21 is the appropriate direction to be given to a jury in the common law

22 system of jury trial, and it does not in fact abrogate the rule. It

23 simply says there is no need when dealing with a jury to give them any

24 special direction stemming from the fact that the case is based on

25 circumstantial evidence.

1 Well, clearly in this Tribunal that's not a consideration that

2 really applies, and when you look at the cases involved, Your Honours will

3 see that in fact the rule is alive and well, and from a logical point of

4 view is simply another way of expressing the basic burden and standard of

5 proof, which I think is not in dispute, namely that the Prosecution must

6 prove the accused's guilt beyond a reasonable doubt. This is simply

7 another way of saying that.

8 Now, the importance of that, Your Honours, is that the case

9 against Dr. Simic really was a circumstantial case, particularly when one

10 considers the question of mens rea. And as such, the Trial Chamber should

11 have asked itself the question, and indeed really did ask the question,

12 because the Trial Chamber conceded at paragraph 987 of the, they agreed

13 that it was a circumstantial case, and they expressed themselves to be

14 following the Celebici rule. They were conscious of that. And in the

15 judgement, they said, "Yes, we acknowledge that rule, and we will follow

16 it."

17 I trial we submit is that although the Trial Chamber was right to

18 acknowledge the rule, they didn't really follow it because the evidence

19 clearly did show that there was an entirely reasonable explanation for

20 events consistent with the accused's innocence, and I think that really

21 follows certainly as far as any element of joint criminal enterprise is

22 concerned, it follows from the judgement of Judge Lindholm, who provided

23 such an explanation by saying there was a political situation that

24 happened in Samac. People reacted to that situation badly, but there was

25 no preconceived plan. And Judge Lindholm provided a more than reasonable

1 basis for the Trial Chamber to apply the Celebici rule. And if that rule

2 had been properly followed, again I submit that we come to exactly the

3 same result that perhaps Dr. Simic, consistently with that rule, could

4 have been convicted under some other mode of liability but certainly not

5 as a part of a joint criminal enterprise. So I think it would be also

6 helpful to -- to factor that into my submissions on the mode of liability.

7 Your Honour, I will not take the time of the Appeals Chamber by

8 belabouring other matters that we fully addressed in our brief, so if

9 there are no other questions at this time, I will yield the floor to the

10 Prosecution.

11 JUDGE GUNEY: Judge Shahabuddeen has a question.

12 JUDGE SHAHABUDDEEN: Just to exchange notes with you, as it were,

13 Mr. Murphy, and to make sure that I'm understanding you, your position, as

14 I sum it up if my mind on the Celebici rule is this: That the proposition

15 that the evidence may be consistent with an explanation of innocence, that

16 proposition is not really an independent or additional rule. It's merely

17 an explanation in certain circumstances of what the Prosecution's burden

18 to profits case beyond reasonable doubts.

19 MR. MURPHY: Yes, Your Honour. The House of Lords in the McGreevy

20 case did put it that way, because they said if there was in fact an

21 explanation that was reasonable, that was consistent with innocence, then

22 it could not be said that the Prosecution proved the case beyond

23 reasonable doubt.

24 JUDGE SHAHABUDDEEN: McGreevy's case.

25 MR. MURPHY: Yes, yes, in the McGreevy's case. We have attached

1 the full judgement case to our reply brief if Your Honour would care to

2 look at it. We say that, really, the two things are just logically

3 inseparable, the one really goes with the other.

4 Thank you very much, Mr. President.

5 JUDGE GUNEY: [Interpretation] Thank you, Mr. Murphy, and thank you

6 for being so concise.

7 Now we can give the floor to the Prosecution. We're a bit early.

8 Mr. Kremer, you have the floor, and you can proceed with your submission

9 until five to one. You have 45 minutes for your submission. You have the

10 floor.

11 MR. KREMER: Thank you, Mr. President. Just by way of proceeding

12 once we have the lectern, I can inform the Chamber that Mr. Wirth will

13 commence our submissions and will response to the indictment issues and

14 answer questions 1 through 3 inclusive in the Scheduling Order. Ms. Goy

15 and I will respond to questions 4 through 6. Ms. Goy will deal with the

16 moral failure to act or omission argument that Mr. Murphy introduced after

17 the break, and I will deal with the aiding and abetting grounds and the

18 sentencing at the end of our submissions. I don't believe that we will

19 use the full time allotted and we will try to be as concise and precise as

20 possible.

21 JUDGE GUNEY: [Interpretation] Thank you, Mr. Kremer.

22 Mr. Wirth, you have the floor.

23 MR. WIRTH: Thank you very much, Your Honours. Good morning. I

24 will address you on the matter of pleading the common purpose or joint

25 criminal enterprise doctrine. As Mr. Kremer just announced, I will deal

1 with the first three of the questions that you posed to us and to the

2 Defence.

3 Before I go into the details, I summarise our answers to these

4 questions. The answer to the first question is that an effective

5 indictment can be cured at any point during trial as long as it does not

6 prejudice the ability of the accused to defend himself. If there is late

7 notice but accused informs the Trial Chamber of the impending prejudice

8 and the Trial Chamber provides an adjournment then the late notice can

9 still be timely in the sense that it does not prejudice the Defence.

10 The second question was how the following two positions can be

11 reconciled. One, first position: First position is that the

12 Prosecution's view that the third amended indictment pled all material

13 elements, and the second position, that the Trial Chamber found that the

14 subsequent amendments to the third amended indictment merely harmonised

15 the indictment's language. The short answer is that those two positions

16 can be reconciled because the third amended indictment was admitted in May

17 2001 and the fourth amended indictment which basically harmonised the

18 third amended indictment was issued subsequently in December 2001.

19 The short answer to the third question is that the term acting in

20 concert together in combination with the term common purpose are classical

21 JCE language. Both terms are contained in the third amended indictment of

22 May 2001. This document notified Simic that he was charged with common

23 purpose or JCE liability.

24 I will now address these three questions in detail starting with

25 the second question since there is potential for misunderstanding. I then

1 turn to the third question, the question of notice, and this will be the

2 main part of my submissions. And then I will answer the first question

3 regarding the curing of indictments. I will close with a short submission

4 on waiver.

5 During my submissions, I will refer to a power point

6 presentation. It's a time line and the Defence received a time line a

7 few weeks ago.

8 JUDGE GUNEY: [Interpretation] [No interpretation].

9 MR. WIRTH: Just for the record, I don't get the French

10 translation. I understood, but I don't get the French translation.

11 JUDGE GUNEY: Thank you.

12 MR. WIRTH: I will start with the Trial Chamber's second question,

13 and I will try to clarify the relationship of two documents of great

14 importance in the present case, namely the Trial Chamber's decision on the

15 third amended indictment and its decision on the fourth amended

16 indictment.

17 You should now be able to see the relevant filings on the time

18 line on your screens. It appears that the picture is very fuzzy. I don't

19 know if anything can be done about that. All right. Thank you.

20 Now, as I said, the two relevant filings are on your screen. Your

21 question asks how the following two views are reconcilable: The

22 Prosecution's position that the third amended indictment, the third

23 amended indictment, pleads all material elements required for charging

24 joint criminal enterprise and, on the other hand, the finding of the Trial

25 Chamber that amendments to the third amended indictment resulting in the

1 fourth amended indictment amounted merely to harmonising the language of

2 the indictment. The time line on your screen illustrates that leave to

3 file the third amended indictment was granted on 15 May 2001 about four

4 months before the beginning of trial. Leave to file the fourth amended

5 indictment was granted in December 2001 after the commencement of trial.

6 It is important for the present case, as the Trial Chamber

7 correctly stated in paragraph 154 that the words "acting in concert

8 together" were added in the third amended indictment. They were added in

9 May 2001.

10 Now, the most relevant aspect of the subsequent December 2001

11 decision was that it allowed the Prosecution to insert the phrase "acting

12 in concert together" that was already contained in paragraph 13 of the

13 third amended indictment into such other paragraphs the indictment which

14 already incorporate rated the phrase by reference to paragraph 13. Since

15 the relevant amendment in December 2001 only amounted to explicitly

16 excluding -- excuse me, to explicitly including acting in concert in

17 places where it had already been stated, the Trial Chamber stated that

18 the granted amendments in the fourth amended indictment amounted nothing

19 more than a harmonising the language of the third amended indictment.

20 On this basis, the position that the third amended indictment

21 pled all material elements and that the subsequent amendment merely

22 harmonised the language of the third amended indictment are reconciled.

23 Finally, since the fourth amended indictment only harmonised the

24 language of the third amended indictment, for instance.

25 I now turn to Your Honours' third question on how the words

1 "acting in concert together" notified Simic that he was charged with

2 common purpose or joint criminal enterprise JCE I will address this

3 question as to our broader argument surrounding notice.

4 Simic has raised one simple issue. He claims that the

5 Prosecution should have used the words joint criminal enterprise. His in

6 paragraph 10 of his reply is, and I quote: "The Prosecution did not at

7 any time use the words joint criminal enterprise in any version of the

8 indictment," and this complaint has been repeated during hearing.

9 Simic appears to claim in his written submissions that the only

10 term that could have notified him of common purpose or JCE liability was

11 the term "joint criminal enterprise". In today's submissions, that

12 position was qualified a little bit, and indeed it is the Prosecution's

13 position set out in paragraphs 2.7 to 2.9 of the Prosecution response that

14 the concept of common purpose or JCE liability can also be expressed

15 through other terms including the terms common purpose and acting in con

16 territory together both terms are contained in the third amended

17 indictment and either term would have been sufficient to notify Simic of

18 the charges against him. Taken together, both terms leave no doubt.

19 With the help of a time line I will sets out first that Simic had

20 notice he was charged with common purpose or JCE liability and that it is

21 clear from Simic's conduct during the proceedings that he knew he was

22 charged with common purpose or JCE liability.

23 If you'd just bear with me for a second. Thank you.

24 I turn the third amendment indictment. With regard to this filing

25 I'll first address the terms "common purpose" and "acting in concert

1 together," and then I will address a couple of Simic's additional

2 arguments regarding the second indictment.

3 The third amended indictment in paragraph 40 charged Simic with

4 committing, et cetera, a campaign of persecutions for the common purpose

5 of ridding the Bosanski Samac and Odzak municipalities of all non-Serbs.

6 This common purpose language can be called classical JCE language. It was

7 used in several decisions before and after the Simic proceedings. First,

8 the Tadic Appeal Chamber itself in paragraphs 193, 195, 222, and 229 used

9 the term common purpose interchangeably with the term joint criminal

10 enterprise.

11 Second, a decision of the Trial Chamber in Brdjanin on further

12 amended indictment on June 26, 2001 in paragraph 24 expressly stated that

13 the term common purpose is synonymous with JCE. And the same was repeated

14 by the Appeals Chamber in the jurisdiction decision in Ojdanic of 21 May

15 2003 in paragraphs 35 and 36. The Chamber stated that the term joint

16 criminal enterprise is preferred, but it refers to the same form of

17 liability as that known as the common purpose doctrine or liability.

18 It is clear from this jurisprudence and from the jurisprudence

19 further referred to in footnote 26 of our response that the term common

20 purpose in the third amended indictment alone is sufficient to clarify

21 that Simic was charged with common purpose or JCE liability.

22 However, the third amended indictment not only uses the term

23 "common purpose," it uses also the term "acting in concert together".

24 As set out in paragraph -- excuse me. Like the term "common

25 purpose" the term "acting in concert together" has been used synonymously

1 with the term joint criminal enterprise. As set out in paragraph 2.8 of

2 the Prosecution response brief, the Krnojelac trial judgement in paragraph

3 84 held and I quote "The Trial Chamber interprets the words in concert

4 with to connote acting pursuant to a basic joint criminal enterprise." In

5 paragraph 17 of his reply Simic attempts to distinguish Krnojelac. Simic

6 argues that the term acting in concert used in one count of Krnojelac was

7 only understood as joint criminal enterprise because the term joint

8 criminal enterprise was used in another count of the same indictment.

9 This attempt to distinguish -- to distinguish Krnojelac must fail

10 because the same logic would apply in the present case. The term "acting

11 in concert together" must be understood as indicating common purpose

12 liability because the term common purpose is used in the same indictment

13 and not even in a different count.

14 In sum, the third amended indictment using the terms common

15 purpose and acting in concert together used language commonly received in

16 the Tribunal's jurisprudence to denote common purpose or JCE liability.

17 I now turn to a number of additional claims of Simic with regard

18 to the third amended indictment.

19 First, Simic claims that until the Prosecution's 98 bis response

20 of 27 September 2002, which for the first time used the words joint

21 criminal enterprise, he claims that until this time he believed that he

22 charged with aiding and abetting only. This is not convincing.

23 First, the term acting in concert together -- the terms acting in

24 concert together and common purpose cannot understood as limiting the

25 indictment to aiding and abetting. Acting in concert together and common

1 purpose is not language anywhere in our jurisprudence used for aiding and

2 abetting. It is language only used for common purpose or JCE charges.

3 Second, Simic's claim as to what he thought he was charged with

4 is a little bit of a moving target. He now claims that he believed that

5 he was charged with aiding and abetting. At the time, however, in his

6 Rule 98 bis response in 2002, he claimed something different family that

7 the charges against him were overly broad and the Prosecution addressed

8 this shifting position in the Prosecution response brief in paragraph

9 2.53.

10 A claim from Simic regards the form of the third amended

11 indictment in paragraph 15 of his reply. P the basis for Simic's claim

12 as has been out by my colleague is that the Prosecution when submitting

13 the third amended indictment to the Trial Chamber did not inform the Trial

14 Chamber that the words acting in concert together and common purpose had

15 been inserted into the indictment. Rather, the Prosecution incorrectly

16 stated that the only changes to the indictment were the dismissal of

17 counts and the dismissal of the 7(3) liability of the Blagoje Simic. As

18 the Trial Chamber noted in paragraph 151 of the judgement, it granted

19 leave to file the third amended indictment on the basis that the

20 amendments relate solely to the dismissal of counts and the deletion of

21 charges. It is on this basis that Simic claims that the form of the third

22 amended indictment must be regarded in doubt and that the third amended

23 indictment should somehow not be considered.

24 The Prosecution opposing this submission. The Prosecution

25 opposing this submission for three reasons. First, whether or not the

1 form of the third amended indictment was in doubt, the important matter is

2 it still provided notice of its contents, and Simic does not claim

3 otherwise.

4 Second, Simic had ample opportunity to challenge the formal defect

5 that he perceives to be present in the third amended indictment. However,

6 during trial, he did not do so. He cannot now on appeal raise the matter

7 for the first time in a reply brief.

8 Third, Simic does not and cannot submit that the Trial Chamber had

9 it been fully informed should not have granted leave to file the third

10 amended indictment. Indeed, as paragraph 151 of the judgement shows, the

11 Trial Chamber became aware of the circumstances surrounding the admission

12 of the third amended indictment but never considered it necessary to take

13 any action.

14 Your Honours, my colleagues from the Defence raised a question as

15 to which indictment is actually on the record. They pointed out to you

16 that there is a version of the indictment on the Tribunal's website which

17 differs from the third amended indictment in the form upon which the

18 Prosecution relies. Yesterday, we confirmed with Registry that the third

19 amended indictment which includes the terms "acting in concert together"

20 and common purpose is the only version of the third amended indictment on

21 the record in this case.

22 The third amended indictment as recorded by registry has

23 continuous registry page numbers immediately following the motion to amend

24 filed by the Prosecution on 24 April. The last page of the -- the last

25 page of the motion is registry page 6851. The first page of the third

1 amended indictment is registry page 6850. In other words, the indictment

2 the Prosecution is relying upon is the only one on the record. The

3 indictment on the website is not on the record and cannot be in issue in

4 these proceedings.

5 Another matter that has been raised by Simic, inter alia, during

6 the present hearing: He states that he was surprised by a finding and by

7 submissions by the Prosecution that he was at the apex of the joint

8 criminal enterprise. We submit that such a surprise was unwarranted

9 because the indictment charged him with having been the head of the Crisis

10 Staff and the highest-ranking civil official in the municipality. That is

11 in paragraphs 1 and in paragraph 15 of the third amended indictment. Now,

12 that is certainly compatible with the finding and the charge that he was

13 at the apex of the JCE.

14 Finally, a short note on the comments that opposing counsel made

15 on the scope of joint criminal enterprise. It has been the Prosecution's

16 position throughout trial that there was a greater criminal enterprise

17 based on the Variant A and B documents. We took that position in our

18 final trial brief. We never abandoned it, and we had that position before

19 trial.

20 Now, counsel for the Defence also mentioned that the indictment

21 must -- must make clear what elements were pled. In our response brief

22 in paragraph 210, the Prosecution set out the material elements of joint

23 criminal enterprise as pled in the indictment and the Defence in its

24 reply did not take issue with that. They did not address the matter.

25 With regard to the third amended indictment, it is therefore our

1 conclusion that neither Simic's claim that he was charged with aiding and

2 abetting, nor his arguments about the form of the third amended

3 indictment can detract from the fact that the third amended indictment

4 notified him that he was charged with common purpose or JCE liability.

5 I will now turn to subsequent filings and submissions in the Simic

6 trial and in particular also to Simic's lack of reaction to any of them.

7 This confirms that Simic knew he was charged with common purpose or JCE

8 liability.

9 The first of these subsequent filings is the Prosecution response

10 to Defence motion which start the exclusion of evidence regarding acts of

11 Steven Todorovic.

12 In the filing the Prosecution stated that the indictment charged

13 Simic with acting in concert together with all defendants, including

14 Todorovic, and that therefore acts of an official such as Todorovic were

15 directly relevant. Simic did not react in any way to the fact that the

16 filing clearly implied that Simic was responsible for Todorovic's acts on

17 the basis of having acted together with him.

18 The next document that I would like to refer to is the Trial

19 Chamber's decision of 20 December 2001 granting leave to file the fourth

20 amended indictment, a decision we shortly discussed a few minutes ago. In

21 this decision, the Trial Chamber allows the Prosecution to insert the

22 term "acting in concert together" in name of paragraphs in the indictment

23 after scrupulous examination whether such insertion would prejudice the

24 accused. The Trial Chamber decided that the term "acting in concert

25 together" could only be inserted in such paragraphs the indictment in

1 which it had already been included by reference. It denied the insertion

2 in all other counts.

3 The Trial Chamber stated: "For count 1, persecutions, the Trial

4 Chamber notes that paragraph 13 of the third amended indictment includes

5 the words "acting in concert together". As stated above, it further notes

6 that paragraphs 15 to 18 each include the words: "The commission of the

7 crime of persecutions as described in paragraphs 13 and 14 above.

8 "Therefore, to at these new words to paragraphs 15 to 18, as well

9 as paragraph 19," and paragraph 19 is just an is summarising

10 paragraph, "does not amount to adding any new forms of responsibility but

11 amounts to no more than harmonising the language in the various paragraphs

12 under count 1."

13 This decision clarifies at least two things. The term "acting in

14 concert together" charges of one responsibility and the term is important.

15 This is clear from the attention the Trial Chamber paid to avoiding

16 prejudice to the Defence with regard to this term. And again the Defence

17 did not react.

18 Your Honours, with regard to that very filing, there was a

19 question whether the Defence objected to the fourth amended indictment,

20 and indeed there was litigation surrounding the fourth amended indictment.

21 However, that litigation had nothing to do with the terms "acting in

22 concert together". That litigation related to a count of destruction and

23 elements of a count of destruction that were inserted into the fourth

24 amended indictment.

25 I now turn to the Prosecution's 98 bis response. The response was

1 filed on 27 September 2002, and Simic accepts that since the filing of

2 this response he is on notice. According to Simic, on this date, the

3 words "joint criminal enterprise" from that response notified him that he

4 was charged with joint criminal enterprise.

5 Your Honours, this was also the date when Simic must have learned

6 that he had sat through the complete Prosecution case without knowing the

7 case against him. It was the date when he must have learned as he claims

8 now on appeal that he had pursued a strategy radically different from the

9 strategy he would have applied had he known he was charged with joint

10 criminal enterprise responsibility. And counsel for the Defence conceded

11 in that hearing that indeed they were aware of all these facts.

12 How did they react? They did nothing. They did not inform the

13 Trial Chamber that they had spent the whole Prosecution case defending

14 against their own allegation, and they did not request that the

15 Prosecution witnesses -- that Prosecution witnesses should be recalled.

16 They did not request any other remedy, and they did not request more time.

17 Now, despite all these grave problems, Simic did nothing and just

18 continued his defence as if nothing had happened for almost nine months.

19 And it is our submission that that is not a plausible scenario. Simic's

20 silence is incompatible with having just learned that he had spent the

21 whole Prosecution case defending again the wrong allegations. His conduct

22 is comparable with an accused who was not concerned by the Prosecution's

23 98 bis response because he already knew that he was charged with common

24 purpose or JCE liability.

25 Now, if we look at his -- at his final trial brief, what does

1 Simic have to say about prejudice, about spending the whole Prosecution

2 case ignorant of the true case against him? It is this: "The failure to

3 plead a joint criminal enterprise in this case denied Dr. Simic notice and

4 a fair trial."

5 There are no details about the prejudice suffered. There are not

6 even the very general allegations that Simic now makes in his appeal

7 brief. There's nothing about a different focus of cross-examination and

8 the radically different strategy which he would have taken. And even

9 today, even if the appeal, apart from general allegations Simic cannot

10 specify the different questions he would have asked in cross-examination

11 or the way, the concrete way in which his strategy would have differed and

12 Your Honours have asked a few questions to that effect this morning.

13 In sum, Simic cannot point to any prejudice because he has not

14 suffered any. He knew the case against him.

15 I now turn to Your Honours' second question: Until which point in

16 time the indictment can be cured.

17 My colleague just corrects me. It is obviously Your Honours'

18 first question. Until when an indictment can be cured.

19 Now, paragraphs 26 and 27 of the Naletilic and Martinovic appeal

20 judgement and the Blaskic appeal judgement appear to set out the

21 following: First, as a rule of thumb, a defective indictment can be cured

22 through notice until the beginning of the trial, and the jurisprudence has

23 referred to the opening statement. And it appears that in that regard,

24 there is no fundamental disagreement between the Defence and the

25 Prosecution according to the submissions of counsel for the Defence this

1 morning.

2 Second, the general principle for curing of indictments is that

3 the accused must have received timely, clear, and consistent notice and

4 must have been in a reasonable position to understand the charges against

5 him. Consequently, the timeliness of information cannot be determined in

6 the abstract. It depends on the accused's ability to prepare his defence.

7 If the notice is provided late, the Trial Chamber, on request, can

8 still provide an adjournment and thus render the late notice timely in the

9 sense that the accused's ability to defend is not impaired. Since the

10 accused can request an adjournment which can turn late notice into timely

11 notice, silence from the side of the accused regarding an adjournment must

12 be interpreted as a strong indication that the accused did not feel

13 prejudiced.

14 I turn to the last issue, the issue of waiver. The Prosecution

15 argues in its response brief that the Defence waived its right to raise

16 the matter of defective indictment on appeal. The Defence replied in

17 paragraph 20 of its reply that the matter was raised in the Defence final

18 trial brief and thus not waived. The Prosecution upholds its waiver

19 argument. Paragraph 62 of the Kunarac appeal judgement in a comparable

20 case stated the following, I quote: "In the present instance, the

21 appellants raise the question of the existence of an armed conflict in the

22 municipality of Gacko in Kalinovik in the first time in their Defence time

23 trial brief without substantiating their argument thereby depriving the

24 Prosecutor of her ability to fully litigate the issue. The Appeals

25 Chamber finds this to be unacceptable. If as the appellant suggest the

1 issue was of such importance to their case, the appellants should have

2 raised it at an earlier stage thus giving fair notice to the Prosecutor

3 and allowing her to fully and properly litigate the matter."

4 The Kayishema and Ruzindana trial judgement held something similar

5 in paragraph 64. It held where any particular issue of dispute or

6 dissatisfaction have arisen, the Trial Chamber should have been seized of

7 these concerns in the appropriate manner and at the appropriate time.

8 In the present case, the key issue for any claims regarding lack

9 of notice is whether the proceedings were fair and with regard to this key

10 issue the final trial brief only contains the bear assertion that the

11 trial was unfair but nothing to substantiate that assertion.

12 As in the referenced case law, the fact that Simic sat on his

13 claim for almost nine months must result in a waiver of his right to raise

14 the matter now on appeal.

15 Your Honours, that concludes my submissions, and I am happy to

16 answer questions that you may have.

17 JUDGE GUNEY: Judge Shahabuddeen has a question.

18 JUDGE SHAHABUDDEEN: Mr. Wirth, am I understanding you correctly,

19 is it your appreciation of the position taken by the Defence this morning

20 that the Defence is saying two things, that it objected to the Prosecution

21 placing reliance on the JCE and that it also asks for an adjournment? Is

22 it also your position that you deny both of those things, that the Defence

23 did not object and did not ask for an adjournment?

24 MR. WIRTH: Thank you, Your Honour. Yes, that is our position.

25 The Defence mentioned a request for an adjournment that we had the

1 opportunity to clarify the matter during the break, and the adjournment

2 the Defence had referred to was an adjournment which was filed, I think,

3 in December 2001, long before the Rule 98 bis submissions.

4 JUDGE SHAHABUDDEEN: Thank you.

5 JUDGE GUNEY: [Interpretation] Thank you. Mr. Wirth, are you

6 finished with your submissions?

7 MR. WIRTH: I am.

8 JUDGE GUNEY: [Interpretation] The Prosecution has until five to

9 one to make further submissions. Twenty-five minutes thus.

10 Ms. Goy, you have the floor.

11 MS. GOY: Thank you very much. Your Honours, Mr. Murphy has

12 touched upon his fourth and fifth ground of appeal regarding the modes of

13 liability and as they were applied by the Trial Chamber. Therefore, I

14 will respond to these fourth and fifth ground of appeal before Mr. Kremer

15 will deal with questions 4 through 6.

16 The essence of the appellant's fourth ground of appeal is that he

17 alleged to have been convicted for his omissions, however the facts found

18 by the Trial Chamber do not support the elements for omissions under

19 7(1). To this, our position is that the appellant proceeds and a

20 misunderstanding of the Trial Chamber as he was convicted on the basis of

21 his active contribution to the joint criminal enterprise. Only in the

22 alternative, we submit, the Trial Chamber can be interpreted as having

23 based the contribution of Simic on acts and omissions. And even in this

24 case, the Trial Chamber did not commit an error of law.

25 The essence of the appellant's fifth ground is based on a factual

1 error, that on the basis of the evidence, no reasonable Trial Chamber

2 could have come to the conclusion that Simic contributed to the joint

3 criminal enterprise. To this, our position is that the Trial Chamber's

4 findings were more than region the basis of the evidence.

5 I will be addressing the fourth and fifth ground together to show

6 that the Trial Chamber in fact based Simic's conviction and act of conduct

7 and that it was more than region the basis of the evidence. After having

8 addressed our primary position, I will then address the -- our alternative

9 position, the interpretation of the Trial Chamber of having based his

10 contribution on the joint criminal enterprise on acts and omissions.

11 As we have set out in our response brief in paragraphs 4.15

12 through 4.54, the Trial Chamber based Simic's contribution on active

13 conduct. This is evident from the general finding in paragraph 991. If I

14 might take Your Honours to paragraph 991.

15 In the second sentence, the Trial Chamber stated: "The common

16 goal to commit the acts of persecution could not have been achieved

17 without the joint actions of the police, the paramilitaries, the 17th

18 Tactical Group of the JNA and the Crisis Staff."

19 And the Trial Chamber made the finding of Simic's act of

20 contribution in the preparation of the persecutory act in providing the

21 framework for the joint criminal enterprise and it address it had with

22 regard to the underlying acts of persecution, the unlawful arrests and

23 detention, the cruel and inhumane treatment, the forced labour, and the

24 deportation and forcible transfer.

25 Paragraph 991 and 992 contain the general findings about the role

1 of the Crisis Staff and, in particular, the role of Simic as president in

2 the common plan to persecute the non-Serbs in Bosanski Samac municipality.

3 Then in paragraph 994 and following, the Trial Chamber addresses in

4 particular the contribution to the specific underlying acts of

5 persecution.

6 So in the general paragraphs 991 and 992, the Trial Chamber found

7 with regard to the Crisis Staff, the Crisis Staff was responsible for

8 coordinating the administration of the municipality with the civilian

9 police. 991: The Crisis Staff implemented orders throughout its term

10 that supported the persecution of non-Serbs. 991: The decisions and

11 orders of the Crisis Staff provided the social, legal, and political

12 framework in which the other participants of the joint criminal enterprise

13 worked and profited. 992: And thus the Crisis Staff supported the other

14 members of the joint criminal enterprise. 992: With regard to Simic in

15 particular, the Trial Chamber found, and this has already been referred to

16 today, that as president of the Crisis Staff he was at the apex of the

17 joint criminal enterprise. 992. And his role and authority were

18 essential for the implementation of the common plan of persecution. 992.

19 In our brief, we focused on enumerating the acts of Simic

20 individually and as head of the Crisis Staff, and therefore I will focus

21 here on why his role and authority as head of the Crisis Staff and the War

22 Presidency were essential in the implementation of the common plan.

23 During my submissions I will point Your Honour to findings of as

24 well as evidence supporting the Trial Chamber's conclusion. I will --

25 JUDGE GUNEY: [Interpretation] Ms. Goy, I would be grateful if you

1 could speak a bit more slowly, because you're speaking too fast for the

2 interpreters. And you should also allows us to make the connections

3 between what you're saying and the ideas in our own minds. So I would be

4 grateful if you could speak a bit more slowly. Thank you.

5 MS. GOY: I apologise, Your Honours. I will try to speak more

6 slowly.

7 I will not point to the paragraph numbers in the judgement and the

8 exhibit numbers that are already referred to in our response brief. The

9 Crisis Staff and the War Presidency were the highest civilian

10 authority and involved in all aspects of life in Bosanski Samac.

11 Therefore, a campaign of persecution could not have happened without the

12 involvement of the Crisis Staff and Blagoje Simic as the president. His

13 role was essential, especially if viewed in the context that he was

14 involved before, during and after the forcible takeover of the town, which

15 was essential for the common plan to persecute the non-Serbs.

16 Simic discussed the arrival of the paramilitaries in preparation

17 of the takeover on the 12th of April. Simic announced already in a

18 meeting on the 13th of April that if the other ethnic groups would not

19 agree to a petition of the municipality along ethnic lines the Serbs use

20 force.

21 Simic attended the meeting on the 15th in which the Crisis Staff

22 was established in anticipation of the takeover. Simic was present early

23 on the 17th, the day of the takeover, in Crkvina, where the

24 paramilitaries had gathered before the takeover. Simic telephoned

25 Colonel Nikolic in the early morning of the 17th to inform him that the

1 Crisis Staff of the municipality had been established and that with the

2 assistance of the paramilitaries and the police the Crisis Staff had

3 taken the most important facilities in town in order to take over

4 authority.

5 Simic was involved in the assumption and consolidation of power

6 of the Crisis Staff. On the day of the takeover, the 17th of April,

7 1992, he was formally appointed head of the Crisis Staff.

8 The Crisis Staff and Simic took full control over the

9 municipality in order to persecute the non-Serbs. Still on the 17th, the

10 Crisis Staff ordered the surrender of weapons. That is Exhibit P77,

11 referred to in paragraph 418, according to which all members of

12 paramilitary Ustasha and Muslim formations had to surrender their weapons.

13 And people who would not comply with this order would be disarmed

14 forcefully and remand in custody of the police station.

15 The Trial Chamber found in paragraphs 451 and 454 that the members

16 of the JNA, the paramilitaries, and the police collected weapons in

17 Bosanski Samac predominantly from Muslim and Croat civilians. The amount

18 of control over the municipality is demonstrated, for example, by the

19 order of the public security station, still on the 17th, prohibiting exit

20 and entry without prior written consent of the police, which according to

21 Exhibit P36, referred to in paragraph 474, was based on prior

22 authorisation of the municipal Crisis Staff.

23 On the 19th of April, 1992, the concentration of power in the

24 hands of the Crisis Staff and Simic, as the president, continued. The

25 Crisis Staff issued a decision on the introduction of a state of

1 emergency, according to which all bodies and institutions of Bosanski

2 Samac ceased to operate and the Crisis Staff shall take up their

3 functions.

4 The Trial Chamber therefore correctly found in paragraph 390 that

5 by assuming the position of the municipal assembly, the Crisis Staff had

6 full authority to govern the municipality of Bosanski Samac and was the

7 highest civilian authority.

8 Once the Crisis Staff had seized power and gained full authority,

9 it continued to consolidate its power. This is demonstrated, for

10 instance, by the decision on the 21st of May, 1992, on dissolving the

11 Crisis Staff of the local communes, Exhibit P106, and the appointment of

12 representatives for the municipal Crisis Staff in the local communes,

13 Exhibit P107.

14 The amount of control is also demonstrated in the decision of the

15 Crisis Staff on the same day, the 21st of May, on the general ban to leave

16 the territory, which according to Exhibit P90 was sent to the public

17 security station and the military command which emphasis the cooperation.

18 The involvement of the Crisis Staff and Simic as the president was

19 necessary for the campaign of persecution as the Crisis Staff controlled

20 all aspects of life in Bosanski Samac, because according to the

21 instructions for the work of the municipal Crisis Staff, that is Exhibit

22 P128, the Crisis Staff was responsible for all areas of life and work,

23 which included providing facilities, providing food, providing medical

24 care.

25 All important members, civilian members, of Bosanski Samac were

1 members of the Crisis Staff. According to the instructions for the

2 municipal Crisis Staff I just mentioned, the members included the

3 president, Simic; the deputy president, the commander of the TO, the

4 president for the Executive Committee, the head of the police, Todorovic;

5 the police participating in the arrests, running the detention facilities

6 and being involved in cruel and humane treatment and the other members

7 were members responsible for economy, humanitarian law, medical care,

8 information, and so on.

9 The head of the municipal department for the Secretariat for

10 National Defence, which was responsible for running the and

11 administrating the forced labour programme was also the immediate of the

12 municipal staff.

13 The head of the responsible reported back to the Crisis Staff,

14 such as the Executive Board P12 referred to paragraph 393. The head for

15 the municipal department for national defence provided a report. The head

16 of the sin exchange committee provided reports to the War Presidency.

17 So the Crisis Staff and especially as its head was at the top and

18 coordinating the civilian authorities as can be seen from the instructions

19 of the municipal Crisis Staff. It not only coordinated the civilian

20 authorities but also cooperated with the paramilitaries and the JNA. The

21 connection with the military, which was also involved in arrests,

22 detention, cruel and inhumane treatment is obvious from the same

23 instructions for the municipality according to which the Crisis Staff was

24 obliged to provide working and living conditions for the JNA and thus

25 supported the activities of the JNA. The Crisis Staff ordered the

1 organisation of feeding of soldiers and paramilitaries, ordered the

2 purchase of uniforms, and moreover was in contact and cooperation with the

3 military which is supported by the fact that Simic was in contact with

4 Colonel Nikolic before the takeover and informed him immediately after the

5 takeover as found in paragraphs 384, 989 and 446, 990.

6 Contact and cooperation with the paramilitaries who were involved

7 in the unlawful arrests and detention, cruel and inhumane treatment is

8 demonstrated by the fact that Simic influenced the removal of Colonel

9 Djordjevic and the replacement with Crni and that Simic requested the

10 return of the paramilitaries to Bosanski Samac in October.

11 The cooperation with the military, the paramilitaries, and the

12 police is also confirmed in contemporary documents such as Exhibit P127 as

13 well as Exhibits P115 and P117.

14 When the Crisis Staff became the War Presidency, the regime

15 remained the same, as the Crisis Staff was just renamed. That is Exhibit

16 P73, referred to in paragraph 391.

17 According to Article 3, the War Presidency shall operate in

18 wartime as the highest body of authority in the Serbian municipality of

19 Bosanski Samac, and Simic was the president.

20 The Crisis Staff and the War Presidency, which with Simic as the

21 president set up organs to help to implement the common plan. The War

22 Presidency set up the commission for exchange of prisoners. Simic was

23 involved in the appointment of the head of the municipal department of the

24 Secretariat for National Defence, the body managing the forced labour

25 programme. The Crisis Staff established an executive board to execute its

1 decisions. The executive board was involved in the forced labour

2 programme. The Crisis Staff would also dismiss people in important

3 positions like, for example, a factory director. That is Exhibit P172.

4 And use its influence, for example, in the removal of Colonel Djordjevic

5 in order to have him replaced with Crni. All these findings and evidence

6 support the Trial Chamber's conclusion that Simic's role and authority

7 were essential for the implementation of the common plan in Bosanski

8 Samac.

9 Providing the framework and the support to the other members of

10 the joint criminal enterprise to carry out the underlying acts of

11 persecution would have been sufficient to find him liable for having

12 contributed to the joint criminal enterprise. The Trial Chamber, however,

13 more specifically addressed his contribution with regard to the underlying

14 acts of persecution.

15 Regarding the unlawful arrests and detentions, the Trial Chamber,

16 in paragraph 994, refers to the framework role just discussed by -- by

17 finding that Simic was the highest ranking civilian official. That is the

18 beginning of 994. Simic consolidated Serb institutions and coordinated

19 the functions. Simic presided over meetings where operations of

20 authorities were discussed and in which Todorovic, the chief of police,

21 was report on the situations of arrests and detentions.

22 Simic had strong influence over arrests and detention. That is

23 paragraph 995. And the Trial Chamber correctly concluded, 996, that the

24 police, the paramilitaries, the Crisis Staff, and the JNA worked together

25 to maintain the system of arrests and detention.

1 Similarly --

2 JUDGE GUNEY: [Interpretation] Ms. Goy, you have five minutes left

3 before the break at five to one. Please try to conclude your submissions.

4 MS. GOY: Thank you.

5 JUDGE GUNEY: [Interpretation] Thank you.

6 MS. GOY: Similarly regarding cruel and inhumane treatment, the

7 Trial Chamber found in paragraph 1004 that the police, the military, and

8 the paramilitaries were working hand and hand together and steering the

9 municipality.

10 The framework of this to the structure of the municipality with

11 regard to the maintenance of the system of detention is obvious, for

12 example, from the statement of witness Vladimir Sarkanovic referred to in

13 paragraph 604 that the detention facilities in Bosanski Samac could only

14 have been established and maintained by the Serb authorities in control of

15 Bosanski Samac in coordination with Steven Todorovic. The Crisis Staff

16 therefore provided inappropriate detention facilities, inappropriate

17 medical care, and Simic was personally involved in the release of

18 important prisoners because he was contacted, for example, with regard to

19 members of the JNA and Sulejman Tihic who was the local head of the SDA.

20 And thus the Trial Chamber correctly concluded in paragraph 995 that he

21 had strong influence over the arrests and detentions.

22 If I may, I would like to pause here in order to arrest the

23 specific contributions with regard to forced labour and deportation after

24 the break. Thank you.

25 JUDGE GUNEY: [Interpretation] Very well. We will resume at half

1 past two to hear the further submissions by the Prosecution for one hour

2 and 25 minutes and not 1 hour and 45 minutes, because you started earlier

3 than was expected. So we have to take that into account.

4 Thank you very much. The hearing stands adjourned.

5 --- Luncheon recess taken at 12.54 p.m.

6 --- On resuming at 2.32 p.m.

7 JUDGE GUNEY: [Interpretation] The hearing resumes. [In English]

8 You will have one hour, 30 minutes to submit the rest of.

9 MS. GOY: Thank you, Your Honour. Before the break, I referred to

10 findings in evidence regarding the role and authority of Dr. Simic in the

11 implementation of the common plan and how this contribution to the

12 framework has been addressed in the context of the underlying acts of

13 arrests and detention and cruel and inhuman treatment.

14 I would now like to address the last two underlying acts, the

15 forced labour and deportation and forcible transfer.

16 Similar to the other underlying acts, the Trial Chamber referred

17 to how the providing of the framework had an impact on the underlying act

18 and addressed the individual acts of Mr. Simic. Regarding forced labour,

19 Simic was involved in participating in the appointment of the head of the

20 municipal department for national defence, the body managing the forced

21 labour programme. They had reported back to the Crisis Staff. The Crisis

22 Staff was mentioned on call-up papers for work obligations as evident from

23 the testimony of Witness M referred to in paragraph 813. Moreover,

24 requests for workers were channeled through the executive board as evident

25 from Exhibit D 125/1 and the testimony of Bozo Ninkovic referred to in

1 paragraph 812. The Executive Board was set up by the Crisis Staff, as I

2 have referred to earlier.

3 The Crisis Staff gave its general consent to the request of

4 workers and in some occasions the Crisis Staff was directly addressed with

5 requests of workers, so by Savo Popovic, Crisis Staff member regarding

6 repair work in Odzak. That is the evidence of Steven Todorovic in

7 paragraph 825 of the Trial Chamber judgement.

8 The same applied for deportation and forcible transfer. The

9 Crisis Staff -- or, rather, the War Presidency at that stage established

10 the Exchange Commission, and Simic and the Crisis Staff were also involved

11 in deportations and forcible transfer such as with regard to the Serb

12 detainees in Odzak. As the Trial Chamber found in paragraph 1036, Simic

13 was informed of the negotiations by Simo Zaric. The Crisis Staff headed

14 by Simic proposed to participate in the exchange. Involvement is further

15 demonstrated by Exhibit P99, referred to in paragraph 919, a letter

16 dealing with the situation of Serbs in Odzak, as well as Exhibit P82. The

17 Crisis Staff headed by Simic, moreover, ordered Miroslav Tadic, Simo

18 Zaric, and Bozo Ninkovic to compile lists of detainees.

19 To conclude, the Trial Chamber found that Simic in many ways

20 actively contributed to the underlying acts of persecution to the common

21 plan to persecute the non-Serbs in Bosanski Samac, and on the basis of all

22 the evidence, the Trial Chamber's conclusion was more than reasonable.

23 As regards Simic's inaction, first of all, we submit that by doing

24 nothing to impede the furthering of the common plan, he maintained the

25 system that supported other members of the joint criminal enterprise.

1 Therefore, it demonstrates a positive contribution to the system.

2 Moreover, in our submission, the Trial Chamber referred to omission not as

3 a contribution to the joint criminal enterprise but as evidence for the

4 fact that Simic shared the intent with the other members of the joint

5 criminal enterprise.

6 This is obvious, in our submission, from the structure of the

7 trial judgement. I've pointed out that paragraph 991 and paragraph 992

8 contain the general findings on the active contribution. Then, for

9 example, with regard to the first underlying act of persecution, the

10 unlawful arrests and detentions, the Trial Chamber, in paragraph 994,

11 first refers to this framework by mentioning that Simic oversaw key

12 objectives. That included consolidated institutions, coordinating

13 functions, presiding over meetings, so refers to the actions I've set out

14 before. Then the trial judgement continues by saying that he did have

15 authority and influence and the obligation to do certain things which he

16 didn't do.

17 The same structure can be found in paragraph 996. The Trial

18 Chamber found in the middle of the paragraph that the police, the

19 paramilitaries, the Crisis Staff, and the JNA worked together to maintain

20 the systems of arrests and detention. Then the Trial Chamber found that

21 Simic did nothing to assist or release the prisoners.

22 JUDGE GUNEY: Judge Schomburg has a question. No?

23 [Trial Chamber confers]

24 JUDGE GUNEY: [Interpretation] I'm sorry. You can continue.

25 MS. GOY: Thank you, Your Honours.

1 So in short, we submit that the structure by first referring to

2 action, then referring to inaction, and concluding in paragraph 997 that

3 the only reasonable inference that can be drawn from these facts is that

4 Simic shared the intent in our submission supports our argument that the

5 omission was used as evidence for the shared intent. And the same

6 structure can be found for the underlying acts of persecution.

7 Therefore, we would conclude that in our primary position the

8 Trial Chamber did not err in law or in fact in basing Simic's contribution

9 to the joint criminal enterprise on active conduct.

10 This finishes my submissions with regard to our primary position,

11 and only in the alternative, we submit, the Trial Chamber can be

12 interpreted as having based the contributions on acts as well as on

13 omissions but only in addition did the Trial Chamber, in addition to the

14 act of conduct I've laid out before, did the Trial Chamber take omission

15 into account. And as I've set out before, the acts of contribution in

16 themselves would have been sufficient to find Simic liable on the basis of

17 joint criminal enterprise and, therefore, where that is error with regard

18 to the omission does not have an impact on the conviction for

19 participation in the joint criminal enterprise.

20 Therefore, I leave did to the Appeals Chamber whether Your Honours

21 would like to hear submissions on omission as a contribution to the joint

22 criminal enterprise.

23 I may repeat. In our submission, because even in our alternative

24 argument, the omissions were used only in addition to the act of conduct.

25 Any error with regard to the omission would not have an impact on the

1 conviction for contribution in the joint criminal enterprise. And

2 therefore, we are prepared to make submissions on the question of

3 omission, but we leave it to Your Honours whether you would like us to

4 proceed.

5 [Trial Chamber confers]

6 JUDGE GUNEY: Okay. We would like to hear you on this point, as

7 long as you don't exceed, you don't go beyond the time limit.

8 MS. GOY: I will try to be brief, Your Honour.

9 As we have set out in our brief and has been confirmed by the

10 Appeals Chamber in the Kvocka appeal in paragraph 187, contribution to the

11 joint criminal enterprise can be based on act of conduct or on omission.

12 And the requirements for that are met in this case.

13 Simic had a duty to ensure protection for the civilian population.

14 The Trial Chamber found that the Crisis Staff had to ensure health,

15 safety, and welfare of the population. And it based it, inter alia, on

16 the instructions for work of the municipal Crisis Staff.

17 The Defence seems to take issue with the fact that the -- a duty

18 can be based in domestic law in order to right an international criminal

19 liability. Domestic law, in our submission, at least determines which

20 individual is the addressee of the duty. This can be found, for example,

21 in the ICRC protocol I Article 86, paragraph 3537 where it commentary says that

22 the national law of the state establishes the powers and the duties of the

23 civilians. And whether it is in general sufficient to rely purely on

24 domestic law in order to find the duty to act does not in our submission

25 need to be decided in this case. The reason is that in the case at hand,

1 Simic had a duty based international law to ensure protection for the

2 civilian population.

3 Rule 87 of the customary international law study of the ICRC says

4 that civilians and persons hors de combat must be treated humanely in

5 armed conflict regardless of the nature of the conflict. That is based on

6 inter alia Common Article 3 to the Geneva Conventions and Articles of both

7 additional protocols.

8 A specific subset of the duty is the duty to protection of persons

9 deprived of their liberty as were the majority of the victims in this

10 case. Although the duty is technically incumbent on the state, it has

11 been accepted, for example, in the Blaskic appeal judgement in paragraph

12 663, that while these duties are technically incumbent on the state, they

13 have resulted in a recognition of a general principle of criminal

14 liability for omission.

15 This international duty to ensure respect of fundamental rights by

16 public officials is confirmed in the context of crimes against humanity by

17 the trial judgement of the ICTR in the case of Rutaganira. And if I may

18 just quote from two paragraphs of that judgement. I will quote in French

19 because there is no English translation available at this time.

20 I will quote from paragraph 78: "[Interpretation] Under

21 international law, any individual vested with public authority has the

22 duty to act to protect human beings."

23 [In English] It concluded in paragraph 79, and I will again quote

24 in French: "[Interpretation] As a result, any public official has the

25 duty not only to respect fundamental human rights as any other individual

1 but also to make sure that these rights are respected."

2 [In English] Simic, in our submission is the addressee of this

3 duty because he was the head of the Crisis Staff, the War Presidency, and

4 the municipal assembly in the municipality. He represented the

5 government.

6 JUDGE GUNEY: Judge Schomburg, question.

7 JUDGE SCHOMBURG: Sorry to interrupt you, but that we stay in

8 context. Is it your proposition that also a person who allegedly referred

9 to the fifth amended indictment, paragraph 13(A), who is alleged to have

10 forcibly taken over the municipality of Bosanski Samac by Serb forces,

11 therefore illegally taking this position, that such a person has the same

12 obligation under international law? That on the one hand the Prosecutor

13 submits that it was illegal to take over Bosanski Samac, and on other

14 hand, when you have done so illegally, then you have to take these steps

15 foreseen under international law, as you submit, for regular superiors.

16 MS. GOY: It would be our submission that the duty can arise from

17 factually the duty is incumbent on the fact that they have taken over

18 control of the situation and factually take control of the municipality of

19 Bosanski Samac. So we would submit that the illegal character of the

20 forcible takeover does not undermine the obligation to ensure protection.

21 JUDGE SCHOMBURG: Thank you.

22 JUDGE GUNEY: [Interpretation] You can proceed.

23 MS. GOY: Thank you, Your Honours.

24 To conclude, we would submit that will the Trial Chamber correctly

25 found that Simic had to ensure protection for the civilian population and

1 therefore met the criteria for omission as a contribution to the joint

2 criminal enterprise, namely that he had the duty to act. He, moreover, as

3 we have set out in our brief, also had the ability to act.

4 We have set out in the brief that although generally liability for

5 commission through omission requires the ability to prevent the crime, in

6 case of a contribution to the joint criminal enterprise by omission, the

7 same has to apply as with regard to active contribution. For active

8 contribution, it just needs to be a contribution, not a substantial

9 contribution or significant contribution as set out by the Appeals

10 Chamber. The contribution does not need to be a "but, for" contribution.

11 And similarly, with regard to omission, it does not need to be the ability

12 to prevent by taking action but just the ability to impede, to make it

13 more difficult for the others if action is taken. And the findings by the

14 Trial Chamber support that Simic had the position to make it more

15 difficult. He, as found by the Trial Chamber in paragraph 994, was in a

16 position of strong influence and control. He could have turned to the

17 Prime Minister of the Republika Srpska. He could have expressed and used

18 his influence and control with regard to the other perpetrators. He could

19 have used his influence to try to release prisoners, to try to take

20 measures with regard to appropriate detention facilities and appropriate

21 medical care. He had the ability to impede the furtherance of the joint

22 criminal enterprise. He did not do that.

23 Therefore, we submit that he failed to comply with his duty.

24 Therefore, even if the Trial Chamber based the contribution on acts and

25 omissions, the fourth and the fifth ground should be dismissed.

1 This ends my submissions, and I'm available for Your Honours'

2 questions.

3 JUDGE GUNEY: Judge Liu has a question.

4 JUDGE LIU: I would like you to enlighten me about the differences

5 between the omission in the joint criminal enterprise and the command

6 responsibility which the Prosecution drew up in their indictment.

7 MS. GOY: There are essentially two differences. The first one is

8 that an omission in the joint criminal enterprise requires that the

9 participant shares the common purpose, shares the intent with the other

10 members of the joint criminal enterprise. With regards to liability as a

11 superior, it is not required that he shares the intent. Furthermore, with

12 regard to the duty to act, in a 7(3) liability, the duty results from the

13 control over the subordinates. In -- in the contribution to the joint

14 criminal enterprise by omission, it can be the duty like it is in this

15 case, to ensure protection for the victims, which does not necessarily be

16 linked with the control over the physical perpetrators.

17 JUDGE LIU: Thank you very much.

18 JUDGE GUNEY: You want to proceed, Mr. Kremer.

19 MR. KREMER: Thank you, Mr. President. Your Honours, I will deal

20 with questions 4, 5, and 6 in the Scheduling Order. Under the mode of

21 liability section in the Scheduling Order, the Appeals Chamber asked the

22 parties to comment on what other mode of liability pleaded in the fifth

23 amended indictment best characterises Simic's liability, which one and on

24 what basis. My learned friend, Mr. Murphy, has conceded that aiding and

25 abetting is an appropriate alternative mode of liability and has stated in

1 his remarks that it was appropriately pleaded. In fact, that conclusion

2 is held by the Trial Chamber to be consistent to the evidence. I refer

3 you to paragraph 136 of the Trial Chamber where they state: "Only two

4 heads of responsibility were applicable, JCE and aiding and abetting."

5 Because the Trial Chamber based Mr. Simic's responsibility on

6 joint criminal enterprise, it did not apply its findings using aiding and

7 abetting. If JCE was not properly proceeded in the indictment, then

8 Simic's criminal responsibility can be justified under aiding and

9 abetting. For Simic, aiding and abetting persecution is referred to in

10 the indictment specifically in paragraphs 11, 13, 16, and 33.

11 The Trial Chamber, as my colleague Ms. Goy has just finished

12 referring you to, has ample findings of Simic's contribution to the joint

13 criminal enterprise. The elements of aiding and abetting require

14 contribution, and our position will be that the contribution that was

15 found by the Trial Chamber is sufficient to support a finding of

16 contribution of aiding and abetting the perpetrators of the joint criminal

17 enterprise in persecutions of the non-Serb population of Bosanski Samac.

18 The elements for aiding and abetting are most recently referred to

19 by this Chamber in the decision of Kvocka at paragraph 89, quoting from

20 Vasiljevic Appeals Chamber judgement. In Kvocka, the Court says for the

21 actus reus, the aider and abettor carries out acts specifically directed

22 to assist, encourage, or lend moral support to the perpetration of certain

23 specific crime, and then in quotations, murder or parenthesis, murder E

24 extermination, rape, torture, wanton destruction of civilian property, et

25 cetera, and we would include the crime persecution, and this support has a

1 substantial effect upon the perpetration of the crime.

2 As to mens rea, in the case of aiding and abetting, in the same

3 paragraph, the requisite element is knowledge that the acts performed bit

4 aider and abettor assists the specific crime of the principal.

5 I note by way of passing in the Blaskic Appeals Chamber decision

6 that what constitutes knowledge under this heading was discussed and an

7 issue has been raised in the Blagojevic and Jokic appeal in respect of

8 how the Blaskic Appeals Chamber decision should be interpreted, but for

9 our purposes it's not necessary to go there because the findings of

10 knowledge by the Trial Chamber are sufficient for the purposes of arguing

11 based on knowledge simpliciter.

12 This Chamber went further in Kvocka to draw a distinction between

13 aider and abettor and a member of a joint criminal enterprise at paragraph

14 90 where you stated whether aider and abettor is responsible for assisting

15 an individual crime committed by a single perpetrator for assisting in all

16 crimes committed by a plurality of persons involved in a joint criminal

17 enterprise depends on the effect of the assistance and on the knowledge of

18 the accused. The requirement that an aider and abettor make a substantial

19 submission to the crime assisting a crime committed by an individual or in

20 crimes committed by a plurality of persons. Furthermore, the requisite

21 mental element applies equally to an aiding and abetting a crime committed

22 by an individual or a plurality of persons where the aider and abettor

23 only knows that his assistance is helping a single person to commit a

24 crime he is only liable for aiding and abetting that crime. This is so

25 even go the principal perpetrator is part of a joint criminal enterprise

1 involving the commission of further crimes.

2 The Appeals Chamber then goes on in paragraph 91 to emphasise

3 that joint criminal enterprise is simply a means of committing a crime

4 and it is not a crime itself. Therefore, it would be inaccurate to

5 referring to aiding and abetting a joint criminal enterprise. The aider

6 and abettor assists the principal perpetrator or perpetrators of the

7 crime.

8 Now, Ms. Goy has reviewed extensively the findings of contribution

9 by the Trial Chamber under joint criminal enterprise referred to in the

10 judgement and in the evidence both in terms of the framework evidence and

11 in respect to the individual acts and contributions in respect of the

12 crimes or acts underlying the persecutions.

13 Our position is that the contributions found by the Trial Chamber

14 in its judgement are substantial and establish beyond any doubt that Simic

15 assisted the participants that are listed in the indictment persecute the

16 non-Serb population of Bosanski Samac. The participants are listed in

17 paragraph 984 of the Trial Chamber's decision. The participants include

18 the other members of the Crisis Staff, the Serb police including

19 Todorovic, the Serb paramilitaries, and the 17th Tactical Group of the

20 JNA, all of whom are mentioned in the indictment.

21 The crime that is assisted by Mr. Simic to persecute the non-Serb

22 population of Bosanski Samac by a variety of acts, and the contribution,

23 the contribution of Simic to the participants in committing this crime

24 went beyond assistance, went beyond encouragement, went beyond lending

25 moral support. His contribution was more tangible. Simic knew of the

1 persecutory plan. Simic knew its principals and Simic supported and

2 worked with them as the president of the Crisis Staff and of the War

3 Presidency and the municipal assembly. His support and that of the organs

4 that he was president of was essential to the success and carrying out of

5 the plan to persecute the non-Serb population of Bosanski Samac. And the

6 contributions are clearly found in the Trial Chamber Judgement, some of

7 which have been set out by Ms. Goy earlier and others of which are

8 referred to in our written submissions.

9 The determination, should you make it, that the indictment was

10 effective in pleading a joint criminal enterprise, in our respectful

11 submission, would not underline the finding that a joint criminal

12 enterprise existed and that Simic's active contribution supported its

13 participants. Although this finding that the indictment was defective

14 would bar a finding that Simic had criminal responsibility based on his

15 contribution to the JCE, based on fairness grounds solely it cannot

16 prevent a finding of criminal responsibility based on participation by

17 aiding and abetting the members of the JCE in committing persecution. The

18 actus reus of aiding and abetting may occur both before, during, and after

19 the principal crime has been perpetrated.

20 In this particular case, Simic's contribution was before and

21 during the commission of the principle crime of persecution through

22 contributing to the various and many underlying acts that supported it.

23 Ms. Goy has referred you to his contributions before and during

24 and contributing to not only the takeover but also in installing himself

25 as president of the Crisis Staff and involved in establishing and

1 continuing and coordinating the various organs and functions that

2 supported the persecutory conduct of the members of the joint criminal

3 enterprise.

4 Our position in terms of his substantive contribution based solely

5 on the findings of the Trial Chamber showed clearly that Simic by his

6 actions, positively and substantially, aided and abetted the perpetrators

7 of the persecution of the non-Serb population in the municipality of

8 Bosanski Samac.

9 The next question, then, is, did Mr. Simic know that his

10 contributions assisted or facilitated the persecution of non-Serbs by the

11 members of the JCE? Not only did the Trial Chamber find that Simic knew,

12 but it also concluded that Simic shared their intent, at paragraph 997.

13 In terms of knowledge generally, the Trial Chamber, and I'll just be

14 quoting from its various paragraphs on the various points where they talk

15 about knowledge, on the question of knowledge generally, at paragraph 992,

16 the Trial Chamber concluded in the second sentence: "Blagoje Simic knew

17 that his role and authority were essential for the accomplishment of the

18 common goal of persecution."

19 Towards the end of the paragraph, still 992: "The Trial Chamber

20 is convinced that Blagoje Simic and the other participants acted with the

21 shared intent to pursue this goal, the goal being persecution of the

22 non-Serb population of Bosanski Samac."

23 Specific knowledge as to the underlying acts is also specifically

24 found by the Trial Chamber. Knowledge about arrests, paragraph

25 995: "Blagoje Simic was aware of the persecution of non-Serbs in Bosanski

1 Samac municipality. Blagoje Simic was informed of the continued arrests

2 and detention of non-Serbs during the conflict and was in a position to

3 express persuasive opinions and at meetings with principal actors in the

4 joint criminal enterprise."

5 Paragraph 996: "He had to be aware of civilians being detained in

6 facilities that included the SUP, TO, and primary and secondary schools in

7 Bosanski Samac. He was also aware that detainees were held in camps in

8 Zasavica and Crkvina, and transferred from the TO in Brcko and detained in

9 other facilities presided over by the JNA in Bijeljina. The police, the

10 paramilitaries, the Crisis Staff, and JNA worked together to maintain the

11 system of arrests and detention."

12 Knowledge of cruel treatment, cruel and inhumane treatment,

13 paragraph 1008: "Blagoje Simic knew about the cruel and inhumane

14 treatment, including the beatings, the torture, and the inhumane

15 confinement conditions of the non-Serb prisoners in detention facilities

16 in Bosanski Samac."

17 The last sentence: "The Trial Chamber does not accept Blagoje

18 Simic's testimony that he did not know about such mistreatment."

19 Paragraph 1010: "The Trial Chamber is satisfied that the only

20 conclusion that can be drawn from the above-mentioned evidence and from

21 the fact that Blagoje Simic continued to act as the highest ranking

22 civilian during the indictment period is that he shared the discriminatory

23 intent of the other participants in the joint criminal enterprise to

24 persecute the non-Serb population of the municipality of Bosanski Samac

25 through cruel and inhumane treatment including beatings, torture, and

1 confinement under inhumane conditions."

2 Knowledge of forced labour, paragraph 1021: "Blagoje Simic knew

3 that Bosnian Muslims and Bosnian Croats were forced to perform dangerous

4 or humiliating work. Blagoje Simic was aware of the existence of the

5 forced labour programme."

6 And finally, with respect to deportation and forcible transfer,

7 paragraph 1036: "With regard to the forcible transfer of Osman Jasarevic

8 on 25, 26 May, 1992, in Dubica, the Trial Chamber finds that Blagoje Simic

9 and other members of the Crisis Staff were informed by Simo Zaric about

10 the negotiations Simo Zaric had had with the Odzak side prior to this

11 exchange. Simo Zaric told the Odzak Exchange Commission that he could put

12 proposals for this exchange to the Bosanski Samac Crisis Staff, and after

13 he informed Blagoje Simic about this proposed exchange. Blagoje Simic had

14 nothing against an all-for-all exchange. Blagoje Simic also testified

15 that the Crisis Staff proposed to the Republic Exchange Commission to

16 participated in the exchange."

17 And finally 1037, still dealing with deportations and forcible

18 transfers: "Miroslav Tadic informed the Crisis Staff regularly about the

19 exchanges and that on the 2nd of October, 1992, Blagoje Simic signed P83

20 as the president of the War Presidency, thereby appointing the civil --

21 Civilian Exchange Committee that reported on its activities on a monthly

22 basis to the War Presidency."

23 One can only conclude from the findings of the Trial Chamber both

24 as to acts and contribution and in respect to knowledge that aiding and

25 abetting, which was pleaded in the indictment, was proven at trial.

1 Simic's contribution for persecution -- or conviction for persecution can

2 be maintained under aiding and abetting as a mode of liability based on

3 the same findings the Trial Chamber used to convict him as a member of the

4 joint criminal enterprise.

5 If the Appeals Chamber goes to -- or does convict Mr. Simic on

6 aiding and abetting instead of as a member of the JCE, how does that

7 impact on his sentence? Question number 6.

8 Our position is that there is no absolute rule in this Tribunal

9 that an aider and abettor is subject to a lower maximum penalty than a

10 participant in a joint criminal enterprise. We submit that the relevant

11 inquiry for sentencing is the gravity of the crime including a

12 consideration of the nature and degree of the participation of the accused

13 in the crime.

14 If Simic's liability were to be classified -- reclassified solely

15 on the basis of indictment defects, the principal factor in determining

16 sentence remains the gravity of the crime and his role in the crimes.

17 In this case, the Trial Chamber found that Simic had the specific

18 intent to persecute and that his intentions -- or his actions, I'm sorry,

19 furthered the crimes of the co-perpetrators of the joint criminal

20 enterprise. We would submit that the gravity of the offence and his

21 participation are essentially the same as his liability was as that of

22 co-perpetrator of a joint criminal enterprise, because even after the

23 requalification of conviction, Simic would be an aider and abettor with

24 specific intent rather than possessing mere knowledge, and thus little or

25 no reduction would be warranted.

1 The Statute and the Rules do not mandate that aiding and abetting

2 convictions should result in lower sentences than for other forms of

3 liability under Article 7(1) of the Statute. Tribunal jurisprudence

4 confirms that there is no absolute rule.

5 In Vasiljevic, Appeals Chamber decision, the Chamber said,

6 generally, aiders and abettors warrant a lower sentence than participants

7 in a JCE. Generally. The word "generally warrants lower sentences" is

8 also stated in Krstic and comparing it to responsibility as a

9 co-perpetrator.

10 The word "generally" suggests that this Chamber recognises that

11 there is no absolute rule and that the reduction in sentence as a result

12 of recharacterisation of the mode of liability does not automatically

13 result in a reduction in sentence, and that in deciding whether or not a

14 reduction of sentence is warranted as a result of a reclassification, it

15 is our submission that the basic sentencing principles should have more

16 sway in that determination than the simple reclassification itself. And

17 in particular when sentencing, one should pay attention to the fact that

18 where an accused acts with intent, and particularly the intent to

19 persecute, that should have an important factor in either eliminating a

20 reduction or markedly reducing it from previous cases.

21 I point out that in the Krstic Appeals Chamber judgement, it was

22 determined that Krstic lacked genocidal intent, and that resulted in a

23 significant diminishing of his responsibility warranting considerable

24 reduction in his sentence.

25 In Vasiljevic, his sentence was reduced on the basis of being

1 found as an aider and abettor instead of a member of a joint criminal

2 enterprise. And although not stated expressly, it appears that the

3 requirement of shared intent was missing from Vasiljevic's conviction or

4 from the evidence to justify Mr. Vasiljevic's conviction resulting in the

5 reduced sentence.

6 I've already said, and I won't repeat other than for emphasis,

7 that Simic is an aider and abettor with intent.

8 The observation I make in terms of reduction of sentence, if any,

9 that Vasiljevic and Krstic reduced the sentence approximately 25 per cent.

10 They are the only two cases I can point you to specifically on point. I

11 have already mentioned that for Krstic and Vasiljevic, the finding was

12 specifically that they did not -- in Krstic's case he did not have the

13 specific intent. That appears to be the basis upon which Vasiljevic was

14 equally decided, and consequently our position is that any reduction,

15 should the Appeals Chamber consider one on an aiding and abetting

16 conviction, should be smaller than the 25 per cent imposed by the Appeals

17 Chamber as a result of the change of the basis of conviction in Krstic and

18 Vasiljevic.

19 The Trial Chamber sentenced Mr. Simic to 17 years' imprisonment.

20 The gravity of the offence and Simic's role in the crimes are the primary

21 factors for determining sentence. The rationale for imposing a 17-year

22 sentence is clear in the Trial Chamber decision. They looked at the

23 relevant factors that Trial Chambers are to consider, the fact that

24 Mr. Simic was the most prominent member of the civilian authority involved

25 in the persecution campaign, the fact that Simic chose to become involved

1 at the highest level of the civilian authorities and assumed an active

2 role, the fact that Simic was found to be acting with specific intent to

3 persecute, and when all of these factors are considered, I would submit on

4 behalf of the Prosecution that if any reduction is warranted, no more than

5 10 per cent should be considered.

6 With that, I am open for questions, but I have no formal

7 submissions left to make.

8 JUDGE GUNEY: [Interpretation] Judge Shahabuddeen has a question.

9 JUDGE SHAHABUDDEEN: Mr. Kremer, I am trying to focus on your

10 references to an aider and abettor having the intent. Now, I think I know

11 why you say that. Do correct me if I'm wrong.

12 You take the view that an aider and abettor is guilty of the

13 primary offence and therefore he must have the specific intent to commit

14 that offence, but am I right that under the general law an aider and

15 abettor only has to have knowledge of the principal crime and that he does

16 not have to be proved to be sharing the specific intent to commit that

17 crime?

18 MR. KREMER: We have the same understanding.

19 JUDGE SHAHABUDDEEN: You have shifted away from it.

20 MR. KREMER: No. I believe that perhaps I was unclear in my

21 submissions. When I was speaking about having the specific intent, I was

22 always referring to Simic -- Dr. Simic having the specific intent. I

23 started my submissions by referring to the Kvocka Appeals Chamber decision

24 which limited the amount of knowledge -- or the amount of intent

25 knowledge, the mens rea to knowledge, and I was never proposing that

1 specific intent was required for the aider and abettor. I was saying

2 that, based on the Trial Chamber's findings in this particular case, Simic

3 was found to have specific intent and that that specific intent didn't

4 change or didn't cease to exist by virtue of the fact that he could be

5 convicted under the alternative mode of liability, being aiding and

6 abetting.

7 JUDGE SHAHABUDDEEN: Would I be correct in understanding you this

8 way: That the accused must be shown to have the specific intent but to

9 aid and abet and not the specific intent to commit the principal crime?

10 MR. KREMER: He must know that his actions are aiding and

11 abetting, yes.

12 JUDGE SHAHABUDDEEN: I see. Thank you very much. I have a which

13 might be reserved to your colleague Mr. Wirth. Is he here?

14 MR. KREMER: Yes, he is.

15 JUDGE SHAHABUDDEEN: I cannot see him.

16 Mr. Wirth, the question has to do with the JCE amendments to the

17 indictment. I understood the Defence to be saying that they objected to

18 those amendments and that the Prosecution was saying no, the Defence did

19 not object to those amendments.

20 Well, I have before me the decision of the Trial Chamber of 20th

21 December, 2001. Now, the Trial Chamber does not use -- the decision of

22 the Trial Chamber does not refer to the word "objection," but it considers

23 very carefully the JCE amendments to the indictment. It grants the

24 amendments in part and refuses the indictment in the other part.

25 Now, doesn't the fact that the Trial Chamber was considering the

1 amendments before deciding whether to grant or refuse them demonstrate

2 that there must have been an objection to those amendments? Maybe the

3 transcript of the proceedings, which I have not consulted, would clarify

4 the position. But meanwhile, the question, to my mind, is this: If the

5 Trial Chamber was deliberating upon the question whether or not to grant

6 these amendments, doesn't the fact that the Trial Chamber was deliberating

7 on that issue suggest that the Defence must have made some objections to

8 the amendments being made?

9 MR. WIRTH: Your Honours, allow me to answer the question in two

10 steps. The first step is we are not relying on the fourth amended

11 indictment, which is the indictment that has been amended by the -- that

12 was the result of the 20 December decision. We rely on the third amended

13 indictment, which has been -- leave to file this amendment has been

14 granted in May, 2001, four months before the trial. That is the primary

15 answer.

16 As regards the litigation around the 20 December decision, I can

17 look it up for you, but -- from what I recall from the decision, I think

18 the decision explicitly states that the Defence has not raised any

19 specific questions with regard to inserting the language "acting in

20 concert together." The Defence -- the Trial Chamber says that the Defence

21 set out all amendments to the indictment in their -- in their submission,

22 but then the substance of their argument only went to other issues

23 revolving around the count of destruction of property.

24 JUDGE SHAHABUDDEEN: Well, I've listened to you -- I've listened

25 to you, Mr. Wirth. I'm not sure that I have assimilated the decision from

1 a first reading of it in the same way as you understand it, but maybe your

2 colleagues on the opposite side of the court will come to my rescue.

3 Thank you.

4 JUDGE GUNEY: [Interpretation] I have a brief question to put to

5 you. I think Mr. Kremer or Ms. Goy can answer that question.

6 During Ms. Goy's submissions with regard to the duty to act and to

7 the ability to act, there was a reference made to the various types of

8 abilities to act, the ability to prevent, the ability to impede, the

9 ability to -- et cetera.

10 Does the ability to act necessarily imply the ability to prevent

11 or the ability to impede? I would like to benefit from the point of view

12 of the Prosecution on that issue.

13 MR. KREMER: I think Ms. Goy is better prepared to deal with that

14 question than I am. Thank you.

15 MS. GOY: Your Honour, we -- we have submitted that in the

16 omission we are dealing with, the omission in terms of a contribution to

17 the joint criminal enterprise, it is sufficient to have the ability to

18 impede the furthering of the joint criminal enterprise, to make it more

19 difficult for the other members of the joint criminal enterprise to move

20 ahead rather than to be able to fully prevent the furthering of the common

21 plan.

22 JUDGE GUNEY: [Interpretation] But does the ability to act

23 necessarily imply the type of ability you've quoted, ability to impede or

24 ability to prevent?

25 MS. GOY: We would submit that Simic, in this case, had the

1 required means to impede the furthering of the joint criminal enterprise.

2 It was inherent in his role and authority that he had -- was in a position

3 to influence the other members of the joint criminal enterprise.

4 JUDGE GUNEY: [Interpretation] Thank you.

5 Mr. Kremer, if I understand correctly, you've finished your

6 submissions. You've completed your response.

7 MR. KREMER: That is correct, Mr. President.

8 JUDGE GUNEY: [Interpretation] That's correct. So if that's the

9 case, we might now give the floor to the Defence for its reply, and the

10 Defence will have until 4.00 p.m. If there is no objection, I'd like to

11 proceed that way, and we'll have a 20-minute break at 4.00 p.m.

12 MR. MURPHY: Thank you, Mr. President. If I may, I will respond

13 not perhaps in the order in which the Prosecution dealt with the issues

14 but in order to, at the end of my submissions, come back to the two

15 questions which Mr. Wirth addressed, the two outstanding questions from

16 the Appeals Chamber's order of the 5th of May, which I have not yet spoken

17 to. So if I may, Your Honour, let me begin by addressing briefly the

18 submissions made by Ms. Goy, and to some extent Mr. Kremer, dealing with

19 the question of the responsibility of -- of Dr. Simic.

20 First of all, Ms. Goy cited to the Court some authorities that I

21 think were intended to imply that there was some duty under international

22 law which could extend to a civilian commander to protect the civilian

23 population in certain circumstances, almost regardless of an actual

24 ability to do so. I think that must have been the implication of the

25 submissions, because the Trial Chamber found explicitly, as I referenced

1 this morning, that Dr. Simic, in fact, had no authority over the police or

2 the paramilitaries or the military forces of the 17th Tactical Unit.

3 Now, if I'm not mistaken, Your Honour, and I believe that this is

4 correct, there was some reference to it in the briefs, the -- the

5 obligation that Ms. Goy refers to, to protect the civilian population, is

6 an obligation that falls upon the military commander in an area in time of

7 conflict. It's a very specific obligation deriving partly from --

8 originally from the Geneva Conventions, and we have dealt with that, I

9 think, in outline at pages 66 to 69 of our brief, and I think to some

10 extent also in the reply brief at paragraph 35.

11 Ms. Goy also referenced in support of that the decision in Blaskic

12 at page 663, and Mr. Moore kindly wrote down for me what that paragraph

13 appears to say, and it says -- it says this: "Although criminal

14 responsibility generally requires the commission of a positive act, this

15 is not an absolute requirement as is demonstrated by the responsibility of

16 a commander who fails to finish a subordinate. There is a further

17 exception to the general rule. Perpetration of a crime by omission pur

18 count to Article 7(1), whereby a legal duty is imposed inter alia as a

19 commander to care for the persons under the control of one's subordinates.

20 Wilful failure to discharge such a duty may incur criminal responsibility

21 under 7(1) in the absence of a positive act."

22 That is not, in all due respect, the position of Dr. Simic.

23 The whole question of omission in -- in this context, Your Honour,

24 is, of course, bound up with the Trial Chamber's findings. Both Ms. Goy

25 and Mr. Kremer recited to you a considerable volume of findings from the

1 Trial Chamber's judgement. I am not going to emulate that, but out of

2 fairness to Dr. Simic, I have to briefly put before you the other side of

3 that story.

4 Mr. Kremer used a very telling phrase which I think reveals

5 perhaps some of the misunderstanding that the Prosecution has on this

6 issue. He said that Dr. Simic had installed himself as the president of

7 the Crisis Staff, and the implication seems to be that the Crisis Staff

8 was in some way an illegal organisation.

9 Now, as all of Your Honours know having been involved in cases in

10 this Tribunal, and I think it's abundantly clear we all understand this

11 now, that a Crisis Staff was a unit set up originally in Tito's Yugoslavia

12 as part of the overall defence of the former Yugoslavia, and the way it

13 worked legally was that as soon as there was a declaration of war or the

14 imminent threat of war or a crisis, the normal functioning of government

15 through the municipal assembly ceased, a Crisis Staff came into being, the

16 president of the municipal assembly by operation of law became president

17 of the Crisis Staff for the duration, and that's how it worked. And the

18 fact that Dr. Simic was a politician, even in the former Yugoslavia,

19 Your Honours, is not a criminal act. And the fact that he was the

20 president of the Crisis Staff is not a criminal act.

21 They ask, well -- they actually said in argument this afternoon,

22 well, Dr. Simic could have gone for help to the Prime Minister of

23 Republika Srpska. They made that argument also in -- in their brief,

24 forget apparently that the Prime Minister of Republika Srpska, according

25 to the Prosecution's theory of the case, was himself a member of a

1 criminal organisation devoted to the establishment of a Greater Serbia.

2 Was it the Prosecution's intention that Dr. Simic should go to that source

3 for help?

4 We have noted in our brief, Your Honour, at paragraph 60, I'm not

5 going to read these out, the Prosecution has taken enough time doing that,

6 but I would like to refer to the fact that we did present to the Court in

7 our brief a considerable record of findings by the Trial Chamber, this is

8 at paragraph 61, of the work of the Crisis Staff on behalf of all of the

9 population of Samac regardless of ethnic background. The Trial Chamber

10 made some very detailed findings of that, and they found that many of the

11 decisions of the Crisis Staff were not in fact discriminatory. For

12 example, there was a ban on alcohol which applied for the crisis period to

13 all citizens regardless of ethnicity. The ban on political parties was

14 legitimate under international law and applied equally, and so on. There

15 were findings that the Crisis Staff did its guess to distribute basic

16 foodstuffs, medical supplies to the population regardless of ethnicity.

17 So the Prosecution's painting of Dr. Simic and this Crisis Staff

18 as being just one big criminal enterprise is not only unreasonable, it's

19 contrary to the findings of the Trial Chamber, and it's contrary to the

20 known position of the law of the former Yugoslavia as to what a Crisis

21 Staff was and what it was supposed to do. And somehow the Prosecution

22 would have us believe that mere membership of a political body such as a

23 Crisis Staff is a criminal act. Your Honours, it is not. The Trial

24 Chamber did not make a finding that it was. And the task of the courts,

25 if I may say so respectively, is to separate legitimate lawful from

1 unlawful conduct. The Prosecution wants to sweep it all up into one pile

2 and suggests that Dr. Simic should be criminally responsible simply for

3 that.

4 What is the reality here? The reality is that the Crisis Staff

5 was a political body which had no power to control the situation. The

6 Trial Chamber said that time and time again, and despite that, at the

7 Prosecution's urging they said that Dr. Simic, as a person of influence in

8 their view in the municipality should have in some manner controlled these

9 violent offenders who, as Judge Lindholm put it, took advantage of the

10 political situation. We submit simply that the record shows Dr. Simic had

11 no such ability either in law or in fact and was not under a duty under

12 international law to do so. The responsibility for law and order in that

13 time of crisis, according to the very authorities that Ms. Goy cited

14 rested upon the military commander for the area.

15 Now, turning, if I may, to another matter, Mr. Kremer said that I

16 had conceded that aiding and abetting was an appropriate form -- mode of

17 liability, and I hope the Appeals Chamber will recall that I made that

18 concession after first saying that it was my primary contention that the

19 evidence did not support a finding of liability, and I see that

20 Your Honours have that point.

21 Let me return, Your Honours, now to the troubled question of the

22 indictment, which I suspect is really at the heart of our discussion

23 today.

24 I -- I confess to being surprised and troubled at the

25 Prosecution's reaction or perhaps lack of reaction to the circumstances of

1 the third amended indictment. Mr. Wirth told you, and I have -- I accept

2 completely what he says, that yesterday the Prosecution consulted the

3 Registry and were told that the version of the indictment on the record

4 was the one including the language "acting in concert" and "common

5 purpose." I accept that completely. But it raises more questions than it

6 answers.

7 We filed our reply brief in 2004 and at that point we raised this

8 problem. The Prosecution was aware of what we were saying because shortly

9 after we filed the reply brief we got a motion to strike that part of it

10 which the Appeals Chamber denied. And one has to ask why is it that the

11 Prosecution yesterday is going to the registry to try to get an answer for

12 this when they knew that this issue was there right from August of 2004?

13 And the issue, let me be quite clear, is this: I accept that what is on

14 the record is the version of the indictment that has been referred to

15 containing the language the Prosecution relies upon, but how is it

16 possible that a second version of that indictment has found its way into

17 circulation, including to the public website of this Tribunal, and how is

18 it possible that the Pre-Trial Chamber signed off on an indictment that

19 contained additional language when it had been explicitly represented to

20 them by the Prosecution that the only purpose of the amendment was to

21 delete certain charges and to remove Article 7(3) responsibility for Dr.

22 Simic? And I had hoped when this was raised this morning to be as perhaps

23 as Your Honours expected, to be given an explanation of this that would at

24 least help us towards resolving that troubling question, because on the

25 face of it -- I'm trying now to speak with moderation. On the face of it,

1 unless otherwise explained, it seems that somebody deceived the Pre-Trial

2 Chamber into signing off on an indictment that they did not believe they

3 were signing. And for the Prosecution now to say, "Well, we abandoned the

4 fourth amended indictment because language is there in the third amended

5 indictment," asking the Appeals Chamber to turn its back on this problem

6 and say, "Well, we really ignore the fact that this happened, and despite

7 that we will assume that the Defence were given notice and that everything

8 was proper," is little short of outrageous.

9 Your Honour, the -- when one considers the history of this case

10 and other cases, with everything that the Appeals Chamber has said time

11 and time and time again about the necessity for detailed pleading -- in

12 Kvocka the Appeals Chamber said that the indictment must be pleaded with

13 sufficient detail. If it is defective, the Appeals Chamber may reverse

14 the conviction. In the same case, the Appeals Chamber added that JCE

15 responsibility must be specifically pleaded. And time and time again

16 we've set these quotations out more than once --

17 JUDGE GUNEY: [Interpretation] Let me just remind you that still

18 have only ten minutes before the break. Of course, you can continue after

19 the break.

20 MR. MURPHY: Yes, Your Honour. Thank you very much. I appreciate

21 it.

22 In the Krnojelac case, we see again that the Appeals Chamber is

23 saying specifically that the pleading must be precise. In Blaskic you

24 come back to that same theme. And perhaps this will be a good way, Your

25 Honour, just before the break, and then I will come back and answer the

1 two specific questions for you, but perhaps let me just say this leading

2 up to the break as a general observation, that it is my submission in this

3 case that not only was the state of the pleading obviously defective, not

4 only did it cause unfairness to Dr. Simic, but that in addition to that

5 our submission is that the time has come when the Appeals Chamber should

6 say in effect enough is enough. We make rules for -- to be obeyed. These

7 are important practical rules, and the Prosecution's reaction to our

8 appeal on this issue has simply one of casual disregard. In their

9 response brief they say, "Well, the pleadings were perfectly proper," even

10 though even the Trial Chamber said they were very far from proper. And

11 now, confronted with the fact that the very indictment that they seek to

12 rely upon is shrouded in this unsavory motion to seek to amend, they

13 nevertheless say, We rely on that and that is our position.

14 Now, Your Honour, there -- the other issue that has been raised is

15 whether "acting in concert" and "common purpose" is sufficient language.

16 Mr. Wirth described that as the classical language of a joint criminal

17 enterprise.

18 As I indicated before lunch in response to questions from the

19 Bench, we do not suggest that the words "joint criminal enterprise"

20 necessarily have to appear as such in every indictment, but what does have

21 to appear in every indictment is the substance -- the substantive pleading

22 of both the facts and the allegations on which the Prosecution relies, and

23 they must correspond to the basic elements of a joint criminal enterprise

24 in whatever language that is couched. And it's common ground in this

25 appeal, Your Honours, common ground, that that could not have happened

1 before the third amended indictment, and we would submit that even the

2 addition of that language in the circumstances, when taken with the

3 pre-trial brief, which is clearly directed towards an aiding and abetting

4 theory, is not sufficient notice to put Dr. Simic fairly on notice that he

5 is in a trial for a joint criminal enterprise.

6 Your Honours, I'm now coming really to answer the last two

7 questions. Would it be convenient to take a break a few minutes early and

8 then I can finish very rapidly, I think, after the break.

9 JUDGE GUNEY: [Interpretation] The hearing is adjourned.

10 THE INTERPRETER: Microphone.

11 --- Recess taken at 3.56 p.m.

12 --- On resuming at 4.22 p.m.

13 JUDGE GUNEY: [Interpretation] Mr. Murphy, you have the floor.

14 MR. MURPHY: [Interpretation] Thank you, Your Honour.

15 [In English] Your Honours raised two questions, the second and

16 third question in the order of the 5th of May, which I would submit

17 essentially raised the question of whether the procedure taken in the

18 whole of this case was fair to Dr. Simic, and in light of my earlier

19 submissions in response to the first question, I, of course, put before

20 the Appeals Chamber then the proposition that in general, even if an

21 indictment is defective it would be open to the Prosecution to cure it by

22 means of the pre-trial brief. But in any event, I would submit in light

23 of the Appeals Chamber's principles laid down in the Krnojelac case the

24 position should be clarified by the beginning of the trial. And so

25 essentially we have to resolve this case, I submit, by looking at what the

1 situation was at the beginning of trial. Had the Prosecution done enough

2 at that point to fairly put Dr. Simic on notice of the case that he had to

3 meet.

4 Now, what we have here, taking it at its best from the

5 Prosecution's point of view, is a pre-trial brief that does not address

6 the question of joint criminal enterprise combined, at best, with an

7 amended indictment which in one place states "acting in concert together"

8 and in one place uses the phrase "common purpose", but in all other

9 respects pleads facts that are really more consistent with the position

10 taken in the pre-trial brief, and that really is the state of play as this

11 trial begins.

12 Three months into the trial -- and let me add in parenthesis as

13 the Trial Chamber noted, that position was not corrected at the pre-trial

14 conference or in the opening statement of the Prosecution.

15 Three months into trial, as the Appeals Chamber observes in its

16 second question, we have the issue of what the Trial Chamber called

17 harmonising or cleaning up the language of the existing indictment, and

18 what that amounted to essentially was to take the same language and

19 instead of stating it once to add it to a number to other paragraphs in

20 the amended indictment. And that was the final state of the pleadings as

21 was mentioned by my colleague Mr. Pantelic. The other amendment was

22 simply a technical amendment to remove the accused Milan Simic from the

23 proceedings. And that remained the state of play until the 92 bis motion

24 that the Prosecution at last revealed their true colours and said there

25 was a joint criminal enterprise of which Dr. Simic was a part.

1 And it is our submission in response to questions 2 and 3 that

2 even assuming in the Prosecution's favour that that language was used in

3 the third amended indictment, and those now become critical because the

4 Prosecution abandoned reliance on the fourth amended indictment, they've

5 nailed their colours firmly to the mass here. So if the Appeals Chamber

6 thinks that the third amendment indictment was not sufficient, then that

7 really does decide the issue of fairness in favour of Dr. Simic. And what

8 the Appeals Chamber has to decide, I would submit, is whether looking at

9 that history as a whole it can say that Dr. Simic was given a fair trial,

10 that he was put appropriately on notice. And it's our submission, very

11 simply, that he was not.

12 Now, I'm going to come back at the very end of my submission,

13 which I assure the Court will not be long delayed, to the -- to some

14 matters that I think flow from that, the answers to those questions, but

15 let me at this point, before I do, come briefly to the issue of sentence.

16 Mr. Kremer responded also to the question that Your Honours had

17 posed about what effect would be produced on the sentence if we were to

18 reclassify the mode of responsibility in some manner in favour of

19 Dr. Simic, and we had some numerical discussions that I frankly did not

20 follow very well, it seemed to be more related to the stock exchange, 10

21 per cent reduction, 25 per cent reduction. Your Honours, let me suggest

22 that with all due respect the right way to decide this is not in those

23 terms but by looking at what the situation is overall and bearing in mind

24 this is the first kind of its kind in the sense that it's the first case

25 in the history of the Tribunal where we've had a dissenting opinion on the

1 issue of sentence and a very dramatic difference, really, between 7 and 17

2 years. Judge Lindholm, a very experienced Judge, took have a very

3 different view of that sentencing, and we've therefore been provided with

4 a benchmark here so we don't simply have to cast about for individual

5 opinions, certainly not from the bar. We've had a judicial opinion on

6 this subject which we submit carries great weight. But the whole issue of

7 sentence should be looked at, I submit, in that manner and dealt with

8 really in response to the findings that the Trial Chamber makes about the

9 appropriate responsibility.

10 We would submit that Judge Lindholm's opinion in that regard is

11 entitled to -- to great weight. We would submit, in fact, that it should

12 be used as a starting point. And I also remind the Chamber, respectfully,

13 that there's also one other very usual aspect of this case flowing from

14 the Prosecution's failure to identify the true nature of the case, and

15 that is that we had two co-accused who we now know, according to the

16 Prosecution, were also involved in the joint criminal enterprise. We

17 didn't know that at the time, but during the trial they changed their

18 pleas. They pleaded guilty, and as the record will reflect were sentenced

19 on the basis of the Court thought the appropriate -- what the state of the

20 case was at that time. And it seems anomalous, to say the least, and

21 certainly almost random that because Dr. Simic maintained his

22 plea of not guilty and the goal posts, if I can using a sporting analogy,

23 were moved on him during the trial and he ended up being the apex of a

24 joint criminal enterprise and sentenced to this really in an extraordinary

25 way to 17 years. And the Appeals Chamber may think, I submit, that

1 fairness here almost demands that Dr. Simic's sentence be reconciled in

2 the sense of being much more approximated to that of the other

3 participants in -- in this case, that it would be anomalous to leave this

4 much higher sentence out there when there was such a confusion caused by

5 the Prosecution itself in identifying the true nature of the case.

6 I have one final submission, Your Honour, and then I will of

7 course answer willingly any questions you have. And this is much more a

8 general submission. It's not raised specifically by any of questions,

9 although it does impact -- it does flow from some of the questions the

10 Court has asked today.

11 We invite the Appeals Chamber to say that this case should not be

12 only about finding a just result in Dr. Simic's appeal but should also be

13 used as an opportunity to lay down principles partly along the lines that

14 Your Honour, really indicated in -- in the questions that you posed to us

15 bearing in mind the -- what we submit to be the casual attitude of the

16 Prosecution towards -- not only towards pleading but towards the third

17 amended indictment. I'm going to ask the Court to bear with me on this

18 for one or two minutes.

19 Certain questions have been raised about whether or not the

20 Defence at the time of trial made appropriate objections to the

21 indictment, to the amended to the indictment, to the fact that they were

22 taken by surprise. These questions have not perhaps been satisfactorily

23 resolved in all respects today. Nevertheless, there are certain cases --

24 the Prosecution likes to regard waiver as a sort of absolute rule. It is

25 not. It is not. Sometimes there are more fundamental issues that arise

1 in a case, and I'm going to ask the Appeals Chamber to say that even if,

2 and let me assume now for the sake of argument only that we agree with

3 everything the Prosecution says on that subject, let us say that no notice

4 or objection was made by the Defence, we would respectfully submit in this

5 case and having regard to the implications in this case, the Prosecution's

6 conduct overall has been so egregious that given the lack of objection

7 that should be overridden by the need to ensure fairness.

8 If the Court feels that the history of this matter reveals a

9 defective pleading that was unfair to Dr. Simic, there are really three

10 things that the Appeals Chamber could do to redress that. One of them

11 Your Honours have asked us to address today, but I would like for the sake

12 of completeness to address all three. I'm going to call them, if I may

13 use this shorthand, the logical remedy, the remedy slightly less

14 favourable to Dr. Simic, and a remedy slightly more favourable to

15 Dr. Simic.

16 The logical remedy is top grant Dr. Simic a new trial on the basis

17 of full notice and information. Let me say immediately, having regard to

18 the completion strategy of the Tribunal as well as to probably the

19 potential of bringing back the witnesses I realise that is not a

20 reasonable case. That leaves us therefore with two choices, perhaps not

21 favourable to Mr. Simic the one that Your Honours have averted to, to make

22 an adjustment in the sentence accordingly and if that is the view that the

23 Appeals Chamber takes then of course the Defence appreciates that, but I

24 am bold enough to make this submission in the particular circumstances of

25 this case, that there is also another remedy somewhat more favourable to

1 Dr. Simic, and I invite the Appeals Chamber to apply

2 it, and that is that -- to recognise that unless the Prosecution is faced

3 with consequences, tangible consequences for their attitude toward the

4 rules this way of pleading is never going to change and Your Honours are

5 going to be dealing with this way ever pleading until the day the

6 Tribunal closes its doors because as long as they get away with this kind

7 of practice and despite the clear criticism of the Trial Chamber can say

8 to this Appeals Chamber our pleadings are in complete order, they maintain

9 that position today, until there are tangible sanctions against that, it's

10 never going to change. What I invite you to do respectfully Your Honours

11 is to say the proper course of action here is to substitute a verdict of

12 acquittal on behalf of Dr. Simic and bring this to an end.

13 And with that I am ready to answer any questions that Your Honours

14 may have.

15 THE INTERPRETER: Microphone, please, Your Honour.

16 JUDGE SHAHABUDDEEN: This hearing has been complicated by

17 references to a number of amendments of a number of indictments.

18 MR. MURPHY: Yes.

19 JUDGE SHAHABUDDEEN: Now, I have in mind the third amended

20 indictment, and there is, I believe, an impression that there were two

21 versions of that indictment involved.

22 MR. MURPHY: Yes, Your Honour.

23 JUDGE SHAHABUDDEEN: One on the web site.

24 MR. MURPHY: Yes.

25 JUDGE SHAHABUDDEEN: And one, shall I say, on the record.

1 MR. MURPHY: Yes.

2 JUDGE SHAHABUDDEEN: Now, can you assist me by saying which of the

3 two did the Defence receive?

4 MR. MURPHY: Yes. Your Honour, maybe Mr. Pantelic could address

5 that because he was there at trial, and rather than repeat what he's told

6 me, I think it might be best to ask him to address you on that.

7 MR. PANTELIC: Yes, Your Honour. I can confirm that we received

8 third amended indictment on 24th of April, 2001, with the Prosecutor

9 motion for leave to amend, which was cited by my learned friend,

10 Professor Murphy, where the -- the -- it was actually explanations with

11 regard to Dr. Simic that mode of liability 7(3) has been deleted. And

12 it's just technical -- technical issue.

13 Your Honour, if I may add with regard to the other inquiry that

14 you made before, Trial Chamber issued its decision on December 20, 2001,

15 regarding the motion for leave to amend the indictment, actually amended

16 the third indictment. So we are speaking about the fourth amended

17 indictment. You have this decision, and you posed a question to my

18 learned friend from the Prosecution.

19 Well, in the overall atmosphere that we were facing during trial,

20 the best explanation was -- can we find in paragraph 29 of this decision.

21 The Trial Chamber said: "In conclusion, in issuing this decision on the

22 Prosecution's motion for leave to amend the third amended indictment, the

23 Trial Chamber finds that many of the issues raised are due to the lack of

24 diligence on the part of the Prosecution."

25 And it was repeated in Trial Chamber again. And it was also

1 stated in paragraph 25 of the said decision.

2 JUDGE SHAHABUDDEEN: 25?

3 MR. PANTELIC: 25, yes. Where you can see at the bottom of this

4 paragraph on page 7: 'The Trial Chamber will only permit the inclusion of

5 this paragraph in relation to persecution." There were certain

6 discussions about the words "acting in concert together". As usual, the

7 Prosecution tried to include all these formulations for all charges, you

8 know, on the back door. It was a permanent practice during trial. And

9 the reaction of the Trial Chamber was, "No. You should stop with this

10 practice. We will give you -- we will allow you only to include this

11 particular wording on paragraph -- paragraph 40."

12 And in addition -- well, kind of -- I consider it a kind of

13 balance. In addition to that, in paragraph 20 the Trial Chamber stated

14 that it was some kind of cleaning up the inconsistencies of language, et

15 cetera, et cetera.

16 So, Your Honour, in sum, the position of Defence is the following:

17 In accordance with the -- all elements of the Prosecution theory, we as a

18 Defence proceeded with our defence strategy in terms of 7(1) liability

19 with various forms with a focus to aiding and abetting, and that was our

20 strategy. We did not object formally to this kind of language forms

21 simply because it was our understanding of -- it was our knowledge of that

22 case. Obviously, Prosecution shifted in its understanding of the case

23 from 1995, 1995, up to 2002, and we explained all this development.

24 The issue here is, I stress again, whether Dr. Simic was an active

25 participant in joint criminal enterprise or he was an aider and abettor.

1 That's our point. I believe it to --

2 JUDGE SHAHABUDDEEN: Mr. Pantelic, I was only on the question of

3 the identity of the indictment which you received. You say it's the

4 indictment referred to in paragraph 20 of this decision.

5 MR. PANTELIC: Yes.

6 JUDGE SHAHABUDDEEN: Right?

7 MR. PANTELIC: That's correct.

8 JUDGE SHAHABUDDEEN: Thank you.

9 MR. PANTELIC: Thank you, Your Honour.

10 MR. MURPHY: Are there any other questions, Your Honours?

11 JUDGE GUNEY: [Interpretation] Since there aren't any other

12 questions from my colleagues, we've come to the end of the submissions of

13 the parties in this hearing. You can sit down, Mr. Murphy.

14 I'm now going to turn to Mr. Simic, and I shall ask him if he

15 wants to take the floor for a brief statement to the Appeals Chamber

16 according to what was stated in the Scheduling Order.

17 You have the floor, Mr. Simic.

18 THE APPELLANT: [Interpretation] [No interpretation].

19 JUDGE GUNEY: [Interpretation] We don't have any interpretation

20 from B/C/S into English? Wait a minute, please.

21 Can the technicians help us?

22 THE INTERPRETER: Can you hear me now?

23 THE APPELLANT: [Interpretation] I can hear you now, yes. I can

24 hear now.

25 [Trial Chamber and legal officer confer]

1 JUDGE GUNEY: [Interpretation] Have our technical problems been

2 solved now? Can you hear me? You have the floor, Mr. Simic.

3 THE APPELLANT: [Interpretation] Your Honours, I will repeat what I

4 have said. I have nothing to add in connection with my defence, because

5 everything I wanted to say has already been said by my counsel. I would,

6 however, like to take this opportunity to thank you for enabling me to

7 visit the graves of my deceased parents on two occasions. Thank you very

8 much.

9 JUDGE GUNEY: [Interpretation] Thank you. You can sit down.

10 So this is now the end of this appeals hearing in this case.

11 Before adjourning, I would like to address one last point. According to

12 Rule 65 bis, a status conference is to be organised before mid-June 2006

13 so that Mr. Simic can raise any questions dealing with his conditions of

14 detention or dealing with his state, his mental and physical state,

15 health.

16 So as the Pre-Trial Judge, I would like know, Mr. Simic, whether

17 you have any questions to raise regarding this. You don't. Thank you.

18 Therefore, it won't be necessary to organise a status conference

19 before the next 120 days.

20 Does the Prosecution have any objection to raise regarding this?

21 MR. KREMER: No, Mr. President.

22 JUDGE GUNEY: [Interpretation] So on behalf of this Appeals

23 Chamber, I now would like to thank the counsels for Defence and

24 representatives of the Prosecution for their collaboration, as well as

25 legal officers and Registry officers have I with helped us for this

1 hearing. I would also like to thank the court reporters for their great

2 help, very precious help, and also the interpreters, who make it possible,

3 who helped us behind the stage to make this hearing possible.

4 Now we may adjourn.

5 --- Whereupon the Appeals Hearing adjourned

6 at 4.51 p.m.

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