Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4950

1 Friday, 29 November 2002

2 [Open session]

3 [Judgement]

4 [The accused entered court]

5 --- Upon commencing at 10.01 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Case number IT-98-32-T, the Prosecutor versus

8 Mitar Vasiljevic.

9 JUDGE HUNT: Appearances, please.

10 MR. GROOME: For the Prosecution, Dermot Groome, Frederic Ossogo,

11 Sabine Bauer, with the assistance of David Bruff.

12 JUDGE HUNT: Thank you. For the accused?

13 MR. DOMAZET: Your Honours, Vladimir Domazet, lead counsel and

14 Mr. Radomir Tanaskovic, co-counsel for Mitar Vasiljevic.

15 JUDGE HUNT: Thank you. Mr. Vasiljevic are you able to hear the

16 proceedings in a language which you understand?

17 THE ACCUSED: [Interpretation] Yes, Your Honour.

18 JUDGE HUNT: Thank you. Sit down, please.

19 Trial Chamber II is sitting today to deliver judgement in the

20 trial of Mitar Vasiljevic. For the purposes of this hearing I propose to

21 summarise briefly the issues which arose during the trial and the findings

22 of the Trial Chamber in relation to those issues. I emphasise that this

23 is a summary only and that it forms no part of the judgement which is

24 delivered. The only authoritative account of the Trial Chamber's findings

25 and of its reasons for those findings is to be found in the written

Page 4951

1 judgement, copies of which will be made available to the parties and to

2 the public at the conclusion of this hearing.

3 The trial arose out of events which took place in 1992 in the town

4 of Visegrad located on the bank of the Drina River in the Visegrad

5 Municipality in south-eastern Bosnia-Herzegovina close to the border with

6 the Republic of Serbia. Prior to the armed conflict the majority of the

7 people who lived in the municipality were of Muslim ethnicity which

8 outnumbered the Serb minority by almost two to one. Ethnic tensions

9 flared up after the multi-party elections in November of 1990 returned a

10 municipal council which closely matched the ethnic composition of the

11 municipality.

12 Members of the Serb and Muslim ethnicities armed themselves and

13 early in 1992, violence between them followed. The attack upon the

14 non-Serb civilian population took many forms, starting with the Serb

15 takeover of the town and the systematic and large-scale criminal campaign

16 of murders, rapes, and mistreatment of the non-Serb population of the

17 municipality, particularly the Muslims, which eventually culminated in one

18 of the most comprehensive and ruthless campaigns of ethnic cleansing in

19 the Bosnian conflict. Hundreds of mostly Muslim men and women, children

20 and elderly people were killed. One of the most violent of the

21 paramilitary groups operating in the area was led by Milan Lukic, a former

22 resident of Visegrad. This paramilitary group entered the town of

23 Visegrad and committed many very serious crimes there with the complicity

24 or at least with the acquiescence, of the Serb authorities who had taken

25 control of the area.

Page 4952

1 The trial was principally -- was concerned principally with two

2 incidents which took place in Visegrad between the month of June, 1992.

3 The first took place on the 7th of June. Milan Lukic and a number

4 of other men led seven Bosnian Muslim men to the bank of the Drina River

5 where they forced the Muslim men to line up on the bank of the river and

6 to face the river. Despite pleas by the Muslims for their lives they were

7 shot from behind. When it appeared that someone was still alive, the men

8 lying in the water were shot at again at close range. Five of the Muslim

9 men were killed but the other two men escaped by pretending to be dead as

10 they lay in the water. This has been referred to as the Drina River

11 incident.

12 The second incident took place on the 14th of June, 1992. About

13 70 Bosnian Muslim women, children, and elderly men were directed to enter

14 a house in Pionirska Street in the Mahala neighbourhood of the Visegrad

15 municipality. An inflammable substance had been spread in the area in

16 which the Muslims were locked before land. When this large group had been

17 forced inside that house it was set on fire with an incendiary device.

18 Most of the group died in the fire. Some escaped before the fire and

19 others were successful in escaping during the fire. This has been

20 referred to as the Pionirska Street incident.

21 The accused, Mitar Vasiljevic, was charged separately in relation

22 to each of the two incidents with a number of crimes, alleging that he

23 acted in concert with Milan Lukic and others to commit murder, both as a

24 crime against humanity and as a violation of the laws or customs of war,

25 inhumane acts as a crime against humanity and violence to life and person,

Page 4953

1 as a violation of the laws or customs of war. In relation to the

2 Pionirska Street incident, the accused was also charged with extermination

3 in concert with Milan Lukic and others, as a crime against humanity.

4 Finally, in relation to both incidents, taken cumulatively the

5 accused has been charged with persecution on political racial or religious

6 grounds as a crime against humanity by participating in the murder of

7 Bosnian Muslim and other non-Serb civilians, the harassment, terrorisation

8 and psychological abuse of such civilians and the theft and destruction of

9 personal property of such civilians.

10 Mitar Vasiljevic was a member of the Serb minority in Visegrad.

11 He had worked as a waiter in various establishments around town. The

12 Prosecution claimed that he was also a member of or was associated with

13 the Serb paramilitary group led by Milan Lukic. Such an association was

14 put forward by the Prosecution as establishing that the accused shared the

15 homicidal intent of that paramilitary group. There was a close family

16 relationship between the two men. Evidence was also led from a number of

17 witnesses that they had seen the accused with Milan Lukic and others when

18 serious crimes were committed by them. In almost every case, evidence of

19 the participation of the accused in the activities of the paramilitary

20 group was given by one witness only and the evidence of identification by

21 that witness was poor.

22 The Trial Chamber has concluded that the only association of the

23 accused with the Milan Lukic group, which was established, other than in

24 relation to the two incidents with which the trial was concerned, was that

25 he participated in the search of a Muslim family's home in the village of

Page 4954

1 Musici and that he was a ready source of local information for the group

2 about the location of Muslims in the area. The Trial Chamber is satisfied

3 that he gave that information to the group with the full realisation that

4 it would be used by the group to persecute Muslims.

5 In relation to the first incident, the accused admitted that he

6 had been present at the shooting of the men on the bank of the Drina

7 River. He claimed that his presence there was accidental and that he had

8 not realised that the men were to be killed until they were approaching

9 the river, when he tried to persuade Milan Lukic to spare the lives of

10 these men. The Trial Chamber is satisfied that the accused did not try to

11 persuade Milan Lukic to spare their lives, that he willingly accompanied

12 Milan Lukic and his group with the seven Muslim men to the Drina River,

13 and that he was participating with that group in a joint criminal

14 enterprise that all seven of the men be killed. As only five died he has

15 been found to have incurred individual criminal responsibility for the

16 murder of those five men, both as a crime against humanity and as a

17 violation of the laws or customs of war. In relation to the two men who

18 escaped being killed in that shooting, the Trial Chamber is satisfied that

19 the attempted killing amounted to a serious attack on the human dignity of

20 these two men and that it caused them immeasurable mental suffering. The

21 accused has thus been found to have incurred individual criminal

22 responsibility for inhumane acts as a crime against humanity.

23 The Trial Chamber is not satisfied that the charge of a violation

24 to life and person as a violation of the laws or customs of war

25 constitutes an offence under customary law giving rise to individual

Page 4955

1 criminal responsibility, and the accused has been acquitted of this

2 charge.

3 In relation to the second incident, the accused admitted that he

4 had been present in Pionirska Street during the course of the afternoon of

5 the 14th of June, 1992, but he denied participating in any way in relation

6 to the Pionirska Street incident. The Prosecution alleged that the

7 accused took part in looting from the Muslim group late in the afternoon

8 but the Trial Chamber is not satisfied that the evidence of identification

9 is sufficiently reliable as to warrant the conclusion that the accused was

10 present at that time.

11 The Trial Chamber is satisfied that the forcing of the Muslims

12 into the house which was then burnt down did not take place before 9.30

13 p.m. that day. The accused accepts that earlier that day he did speak

14 with a group of people there, but he says that after he had done so, and

15 well before the Muslims were forced to enter that house, he was riding a

16 horse bareback through Visegrad when the horse slipped. He fell to the

17 ground and the horse fell on top of him breaking his leg. He was taken

18 first to the Visegrad health centre and then to the Uzice hospital, a trip

19 which would have taken at least an hour. In other words, the accused

20 relies upon an alibi. There was a considerable amount of evidence led in

21 relation to this alibi.

22 It should be clearly understood that when an issue of alibi arises

23 upon the evidence, the accused bears no onus of proof in relation to it.

24 An alibi means only that the accused denies being where the Prosecution

25 alleges he was at the time the crime was committed. As part of its case

Page 4956












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Page 4957

1 of proving beyond reasonable doubt that the accused was at Pionirska

2 Street when the Muslims were forced into the house which was then burnt

3 down, the Prosecution must eliminate any reasonable possibility that the

4 alibi upon which the accused relies is true. In this case, the

5 Prosecution had to eliminate any reasonable possibility that the accused

6 was in or on the way to the Uzice hospital at 9.30 p.m., the earliest time

7 when the Muslims were forced into that house.

8 The Trial Chamber does not accept a great deal of the evidence

9 which was led on behalf of the accused in support of the alibi. There

10 were, however, some pivotal pieces of evidence tendered, the admission

11 ledgers of the Uzice hospital and the case history of a man by the name of

12 Mitar Vasiljevic, who was admitted to that hospital on the 14th of June,

13 1992, at 9.35 p.m. These records were subjected by the Prosecution to

14 extensive and repeated forensic analysis, and was conceded by the

15 Prosecution that they showed no sign of forgery. The Prosecution

16 therefore had to eliminate any reasonable possibility that the accused was

17 the man who was admitted under the name of Mitar Vasiljevic to the Uzice

18 hospital on the date and at the time recorded in those hospital records.

19 Dr. Moljevic was a doctor at the orthopaedic ward of the hospital

20 and a member of the triage team at its admission centre at the relevant

21 time. He knew the accused well and he was notified of the imminent

22 arrival of the accused because of his friendship with him. He had a clear

23 recollection of the events of that day although he did rely upon the

24 admission ledgers, the authenticity of which the Prosecution was unable to

25 challenge for the date and precise time of admission. The Trial Chamber

Page 4958

1 accepts the evidence of Dr. Moljevic that the accused was in Uzice

2 hospital by 9.35 p.m. on the day of the fire as corroboration of the

3 admission ledgers. The Prosecution has thus failed to establish beyond

4 reasonable doubt that the accused was in Pionirska Street at the time the

5 Muslims were forced into the house and when it was burnt down.

6 This places a substantial degree of importance upon the activities

7 of the accused at the time when he admits he was in Pionirska Street

8 earlier in the afternoon. The Prosecution argued that the accused had

9 sought to persuade the group of Muslims in Pionirska Street to stay

10 together so that he could inform Milan Lukic of their whereabouts, who

11 would then commit the crimes which were in fact subsequently committed,

12 including looting. The Trial Chamber is satisfied that the accused did

13 seek to ensure that the group stayed together because he knew that some

14 evil was to befall them. This would have made him a participant in a

15 joint criminal enterprise to commit whatever crime he knew was to

16 befall them, or at least to have incurred an individual criminal

17 responsibility by aiding and abetting in that crime. The Prosecution,

18 however, failed to establish beyond reasonable doubt just what the evil

19 was which the accused knew was to befall the group of Muslims in Pionirska

20 Street.

21 In those circumstances, the Prosecution failed to establish any

22 of the three crimes charged separately in relation to the Pionirska Street

23 incident, murder, as both a crime against humanity and as a violation of

24 the laws or customs of war, and inhumane acts as a crime against humanity.

25 The Trial Chamber is therefore acquitted the accused of those charges.

Page 4959

1 The charge of violence to life and person has failed for the same reason

2 as it failed in relation to the Drina River incident. The additional

3 charge in relation to the Pionirska Street incident, that of

4 extermination, has also failed because of the failure of the Prosecution

5 to establish beyond reasonable doubt that the accused was in Pionirska

6 Street at the relevant time or that he was aware that these people were to

7 be killed.

8 This leaves the charge of persecution on political, racial, or

9 religious grounds as a crime against humanity, which has to be considered

10 in relation to all of the relevant acts of the accused in their context

11 and their cumulative effect. As a result of the findings already made,

12 these acts were effectively only those giving rise to the accused's

13 individual criminal responsibility for murder as both a crime against

14 humanity and as a violation of the laws or customs of war and inhumane

15 acts as a crime against humanity in relation to the Drina River incident.

16 The Trial Chamber is satisfied that the five Muslim men were killed and

17 that the inhumane acts were committed against the other two Muslim men

18 only because they were Muslims and that they had been singled out for

19 religious or political reasons. The acts were thus discriminatory

20 both in fact and in intent. The accused is therefore been found to have

21 incurred individual criminal responsibility for the crime of persecution

22 as a crime against humanity in relation to the five men and the inhumane

23 acts committed against the two survivors.

24 The question of cumulative convictions then arises. It is

25 permissible to record a conviction for the crime of murder as a violation

Page 4960

1 of the laws or customs of war pursuant to Article 5 of the Tribunal's

2 statute. Together with a crime -- together with a conviction for a crime

3 against humanity pursuant to Article 3, despite the fact that both

4 convictions arise out of the same set of facts. The real issue in

5 relation to cumulative convictions in the present case arises in relation

6 to the three crimes against humanity in relation to which the accused has

7 been found to have incurred individual criminal responsibility. As

8 persecution incorporates the ingredients of both murder as a crime against

9 humanity and inhumane acts, and it is -- and as it is more specific than

10 either of those crimes, a conviction for persecution must be entered in

11 lieu of convictions for murder and inhumane acts.

12 Accordingly, the accused has been convicted for the crimes of

13 persecution, that is as a crime against humanity under count 3, which

14 conviction incorporates his individual criminal responsibility for the

15 murder of the five men and the inhumane acts in relation to the two

16 survivors, and of murder as a violation of the laws or customs of war in

17 relation to the five men charged in count 5. He has been acquitted in

18 relation to counts 1, 4, 6, 7, 10, 11, 12 and 13.

19 In sentencing the accused for these two convictions, it is

20 important to emphasise that the accused is to be punished for the totality

21 of his criminal conduct and of his -- and his overall culpability and that

22 any prejudice which he will or may suffer because of cumulative

23 convictions have been based upon the same criminal conduct must be taken

24 into account. He is not to be punished for either the number of crimes

25 for which he has incurred individual criminal responsibility or the number

Page 4961

1 of convictions entered in relation to his conduct.

2 The principal issue raised in relation to sentencing is the claim

3 by the accused that at the time of the Drina River incident, his mental

4 responsibility for his actions was diminished. Considerable psychiatric

5 evidence was given by both parties on this issue but the Trial Chamber is

6 not satisfied that the accused claim has been made out. The Trial Chamber

7 has, however, taken into account in mitigation the general spirit of

8 cooperation, very properly shown by lead counsel for the accused, who trod

9 a careful path in assisting the Trial Chamber without in any way

10 compromising his obligations to the accused, conduct for which the accused

11 himself should be given credit. The personal circumstances of the

12 accused, in particular the fact that he's married and has two children

13 have also been taken into account by the Trial Chamber as a mitigating

14 factor.

15 The Trial Chamber accepts that the accused was not a commander,

16 that his crimes were geographically very limited and that there is no

17 evidence that his acts encouraged other offenders other than as found in

18 relation to the Drina River incident, or affected other victims of such

19 crimes within the broader context of the conflict. The Trial Chamber has

20 taken into account the fact that the position of the accused in the

21 hierarchy was a low one. It does not accept that the accused played any

22 particularly significant role in the broader context of this conflict but

23 it notes that an accused's level in the overall hierarchy in the conflict

24 is not ultimately decisive of the sentence given. The fact that he was a

25 low level offender in terms of the overall conflict in the former

Page 4962

1 Yugoslavia cannot alter the seriousness of the offences for which he has

2 been convicted or the circumstances in which he committed them. His

3 crimes were particularly serious in terms of the protected interests which

4 he violated. The life as well as the physical and mental integrity of the

5 victims, the consequences for the victims, death for five of them and

6 great suffering for the other two, and the reasons for which these crimes

7 were committed, that is no reason other than sheer ethnic hatred.

8 Relevant to sentencing is the discriminatory intent with which the

9 crimes were carried out. Such an intent is an ingredient of the crime of

10 persecution and it is relevant as such to the seriousness of that crime.

11 It may also be an aggravating feature in relation to the crime of murder

12 as a violation of the laws or customs of war. It is an aggravating

13 feature of that crime in this case. During the Bosnian conflict, ethnicity

14 was exploited variously to gain political prominence or to retain power,

15 to justify criminal deeds or for the purpose of obtaining moral absolution

16 for any act coloured by the ethnic cause. No such absolution is to be

17 expected from this Tribunal. The Trial Chamber considers that crimes

18 based upon ethnic grounds are particularly reprehensible. The Trial

19 Chamber also considers as aggravation the fact that the pleas by the men

20 for their lives were completely ignored by the accused, the cold-blooded

21 nature of the execution, and to perhaps a lesser extent the fact that one

22 of the victims was well known to the accused.

23 Mr. Vasiljevic, would you stand up, please?

24 Mitar Vasiljevic, you are sentenced to a single sentence of

25 imprisonment for 20 years. You are entitled to credit for the period of

Page 4963

1 two years, ten months and four days you have been in custody towards

2 service of the sentence imposed, together with a period you will serve in

3 custody pending a determination by the President of the Tribunal as to the

4 state where the sentence is to be served. You are to remain in custody

5 until such determination is made.

6 The Trial Chamber will now adjourn.

7 --- Whereupon the hearing adjourned at 10.28 a.m.