1 Thursday, 21 November 2002
2 [Appeal Proceedings]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 2.27 p.m.
6 JUDGE POCAR: Good afternoon to everybody. Madam Registrar, can
7 you call the case, please.
8 THE REGISTRAR: Good afternoon, Your Honours. Case number
9 IT-95-14-A, the Prosecutor versus Tihomir Blaskic.
10 JUDGE POCAR: Thank you. May I now call for appearances. For the
12 MR. FARRELL: Thank you, Your Honour. Good afternoon, Your
13 Honours. For the Prosecution, Norman Farrell, Mr. Mark Harmon, Ms. Sonja
14 Boelaert-Suominen, Ms. Kelly Howick, and our case manager today is Nicky
16 JUDGE POCAR: Thank you. For the appellant.
17 MR. HAYMAN: Good afternoon, Your Honours. For the appellant,
18 Russell Hayman, joined by my co-counsel Anto Nobilo, and to my furthest
19 left, Andrew Paley.
20 JUDGE POCAR: Thank you. Now we can start our hearing. I will
21 make some preliminary remarks about today's hearing which has been called
22 by the Appeals Chamber pursuant to the Scheduling Order issued on
23 31 October 2002. In the Scheduling Order, as you know, the Appeals
24 Chamber addressed all of these three Rule 115 motions that had been filed
25 by the appellant as of that date.
1 The Appeals Chamber found that a substantial number of exhibits
2 submitted with the first and second motion and two statements submitted
3 with the third motion were clearly admissible on appeal. As to the other
4 items of additional evidence sought to be admitted by the appellant in the
5 motions, the Appeals Chamber has reserved its position at this time.
6 The Appeals Chamber further considered that in light of the sheer
7 volume of additional evidence identified as clearly admissible, the
8 possible submission of rebuttal evidence and the potential of additional
9 evidence to bring about a redetermination of the facts of the case, it
10 would be more appropriate for any redetermination of the facts to be made
11 by a Trial Chamber. On this issue, the Appeals Chamber has decided to
12 hear the views of the parties. Therefore, the subject of this hearing is
13 limited by the terms of the Scheduling Order to the issue of whether the
14 clearly admissible evidence identified in that order justifies a new trial
15 by a Trial Chamber on some or all the counts.
16 In the Scheduling Order, the parties have also been directed to
17 refrain from discussing the admissibility of the additional evidence
18 submitted thus far in relation to which the Appeals Chamber has reserved
19 its position at this time. This is not a hearing to entertain arguments
20 on the admissibility of that additional evidence under Rule 115. It is a
21 hearing to provide the parties with the opportunity to submit before the
22 Appeals Chamber their views on whether a new trial is warranted in this
23 case in order to assist the Chamber on this issue.
24 In order to facilitate the discussion, the parties have also been
25 directed, pursuant to the Scheduling Order, to file a book of authorities
1 on which they intend to rely at the hearing. We have received such books
2 of authorities and thank the parties for their submission.
3 Now, as it is a general principle pursuant to the Statute and the
4 Rules of this Tribunal, the hearing today will be held in open session
5 generally. Should it become necessary to go into closed session for
6 reasons of dealing with documents submitted under seal, we will do so. I
7 will only ask counsel to raise that request at the appropriate stage when
8 they would wish that to happen and we will rule on that.
9 A second Scheduling Order on today's hearing was issued on
10 14 November 2002. We are familiar with the content of this order. I
11 simply remind you that the Prosecution will have 75 minutes to present its
12 oral argument. After a break, counsel for the appellant will then have in
13 turn 75 minutes to present their arguments. We will have then another
14 break, and we will reconvene to hear the reply of the Prosecution, who
15 will have 30 minutes, and of the appellant who will have another 30
16 minutes. As usual, at the end of each presentation, members of the Bench
17 may ask questions if they so wish. I ask everybody to keep this schedule
18 in mind.
19 Now, if all this is clear, if there are no problems, we will go on
20 to hear the first presentation.
21 The Prosecution has the floor.
22 MR. FARRELL: Thank you, Judge Pocar, Your Honours, if I may.
23 According to the Scheduling Order on October 31st, the issue to be
24 argued today before you is whether or not the admitted documents, the 47
25 documents and the two witness statements, justifies a new trial. With
1 respect, it appears that there's an assumption in this order that you have
2 the authority to do so at this stage and that the question you're asking
3 the parties to brief is whether, in fact, it's justified.
4 I will start my submissions with the argument that, in fact, under
5 the law of this Tribunal as it presently stands, both the law as
6 established in Kupreskic and the law as reflected presently in Rule 115,
7 this Court does not have the authority at this stage to order a new
8 trial. After making those submissions, I will then turn to the issues
9 related to if the Court does or intends to proceed to that determination
10 after this hearing, whether or not it is justified to order a new trial at
11 this stage, and what the practical considerations and arguments are which
12 the Prosecution relies on to say that it's not.
13 First of all, the first issue is whether or not the Appeals
14 Chamber actually has the authority at this stage to order a new trial.
15 There are five points which I will make throughout my submissions, but I
16 will summarise them now. The first is that the procedural law, as
17 established by this very Chamber in the last case that dealt with this
18 matter, Kupreskic, determined that this was not the stage at which a new
19 trial could be ordered.
20 Secondly, Rule 115, as presently amended, establishes a procedure
21 before this Court that it can reach its final determination under Rule
22 117. It does not envisage the possibility of a new trial at the
23 admissibility stage.
24 Thirdly, the standard for ordering a new trial under Article 25 is
25 not the standard for admissibility and, therefore, if it is simply the
1 admissibility that has been decided at this point, there is no basis upon
2 which you can then reconcile that with the standard that there must be an
3 error of fact which warrants a new trial.
4 Fourthly, the possibility of ordering a retrial after the
5 admissibility standard has been met is not the practice of this Tribunal
6 or of the Rwanda Tribunal, the Appeals Chamber of the Rwanda Tribunal, and
7 I'll refer to two cases there where this was not followed.
8 And lastly, in the Prosecution's submission, this possibility has
9 not been the basis upon which this appeal has proceeded.
10 The Prosecution proceeded in this case on the basis that though it
11 had evidence to show that a new trial was not warranted, it would not
12 present it at the admissibility stage. That's specifically reflected in
13 paragraphs 9 to 11 of the Prosecution's response to the second 115
14 motion. And, as I will respectfully submit, is clear from the arguments
15 that were made and the decision that was -- which resulted from the
16 Kupreskic case. The approach that was followed in this appeal was the one
17 required and mandated by the Kupreskic Appeals Chamber and the Prosecution
18 never received any indication to the contrary.
19 Thirdly, the Prosecution proceeded based on Kupreskic on the basis
20 that the evidence would be tested before an ultimate determination would
21 be made.
22 And lastly, the Prosecution proceeded on the basis of the decision
23 of the Appeals Chamber on the 24th of September that further submissions
24 would be filed after the additional evidence was admitted.
25 In my respectful submission, it appears that the Appeals Chamber
1 proceeded on the same basis as the Prosecution did, and on the same basis
2 as established under the procedural law in Kupreskic until the recent
3 scheduling order. The appropriate way to proceed in this case is that the
4 Appeals Chamber should remain seised of this matter and should deal with
5 the additional evidence. If this Chamber deems it completely necessary,
6 Kupreskic instructed that it can remit the matter to a Trial Chamber for
7 the issues related to additional evidence, not for a new trial. And then
8 the Appeals Chamber can consider that additional evidence and any findings
9 by the Tribunal of fact in its ultimate determination, based on the test
10 expressed in Kupreskic as to what the Appeals Chamber must find to
11 overturn the verdict.
12 This procedure, it is respectfully submitted, has been adopted by
13 the ICTR in the Musema case and in the Kambanda case. As I'm sure this
14 Chamber's fully aware, in the Musema case, the Appeals Chamber
15 specifically refers to the procedure and the standards set out in
16 Kupreskic. It heard evidence before it, and it proceeded to make a
18 I will proceed on the basis of those legal submissions on whether
19 you have the authority to order a new trial. I will return to the issue
20 of if you do, whether it justifies it in the circumstances of this case.
21 Let me just make one final comment before I take you to the
22 Kupreskic judgement, and I'll make two references to the Kupreskic Appeals
23 Chamber's judgement. If you have it with you, I'll tell you where I'm
24 referring to. But essentially, the Kupreskic Appeals Chamber and the
25 rules require a two-stage process. With respect, this Appeals Chamber is
1 considering conflating that process. The Appeals Chamber is vested with
2 the specific authority under Rule 115 to hear additional evidence. It's
3 respectfully submitted that the Chamber cannot be vested with the
4 authority to be a trier of fact but then decline to exercise that
6 The threshold for admissibility is very low, and this is one of
7 the submissions that the Prosecution will be relying on as to whether or
8 not it meets the standard for a new trial, when in fact all that's been
9 determined now is that the material is admissible. It's submitted that
10 Kupreskic requires that you must test the evidence, that's the Appeals
11 Chamber or Trial Chamber designate for that particular issue.
12 At paragraph 70, of the Kupreskic decision, which I'll refer to,
13 paragraph 70 specifically deals with the issue of testing the admitted
14 evidence. What that Chamber has held is that -- and now I quote, "Where
15 the Rule 115 evidence is accepted for consideration, the Appeals Chamber
16 has, in effect, decided that the evidence is sufficiently important, that
17 if it had been before the Trial Chamber, the conclusion of guilt could
18 have been different."
19 At that stage of the proceedings, the new evidence may not have
20 been subjected to any form of adversarial scrutiny, as the case here ,
21 save for the Appeals Chamber's initial assessment as to whether it was, on
22 its face, credible. It may be that there's no dispute between the parties
23 as to this issue, but it is more likely that the opposing party challenges
24 the veracity of the additional evidence. The Appeals Chamber is faced
25 with a choice. Either it can test the evidence itself to determine
1 veracity or order the case to be remitted to a Trial Chamber to hear the
2 new evidence.
3 There is no third choice that the Trial Chamber -- the Appeals
4 Chamber can decide at that stage without any testing that there is an
5 error of fact under Article 25 warranting a new trial. And more so, it
6 does not say that where the evidence to be tested is extensive or there's
7 an extensive volume of it that you can lower the standard and apply the
8 admissibility standard for a determination of whether a new trial is
10 The new language of Rule 115 expressly recognises this. The Rule
11 recognises that rebuttal material may be presented by an affected party.
12 Further, the more recent amendments of Rule 115, in my submission, reflect
13 the exact passages that I will refer to in Kupreskic.
14 Rule 115 (B) says:
15 "The Appeals Chamber will consider the additional evidence and any
16 rebuttal along with that already on the record to arrive at a final
17 judgement in accordance with Rule 117."
18 It submits that if you can't reach a final judgement, to order a
19 new trial on the basis of Rule 115 prior to that procedure being
21 The standard under Rule 115 is a different standard than that to
22 be applied to overturn a verdict. If the standard was the same, then it
23 would be one process. It's not the same. The Kupreskic Appeals Chamber
24 specifically states it's not the same and specifically declines to adopt
25 the one-stage process.
1 How can this Appeals Chamber conclude that there was objectively
2 an incorrectness of fact as required by Tadic and by Kupreskic based on
3 untested evidence and where there's been in submissions? How does the
4 standard for admissibility, which could have had an impact on the verdict,
5 reach the level required in Kupreskic to overturn the verdict? Even more
6 troubling is how can the Appeals Chamber order a new trial on evidence
7 which "appears to be capable of belief"?
8 The evidence before you hasn't been found to be capable of
9 belief. It's only been found to appear to be capable of belief according
10 to the standard adopted. With respect, the trial, which took 25 months,
11 170 witnesses, and thousands of pages of exhibits should not be overturned
12 simply on documents which appear to be capable of belief.
13 The answer to these questions is clearly the Appeals Chamber does
14 not have the authority under Kupreskic or Rule 115.
15 THE INTERPRETER: Could the counsel please slow down for the
16 benefit of the interpreters. Thank you.
17 MR. FARRELL: I'm sorry. Thank you.
18 The cases and propositions which are before you, the cases which
19 are in the books of authorities, I ask you to take note of the cases and
20 look at the cases that were before the Kupreskic Appeals Chamber
21 judgement. You'll find that they are almost exactly the same. I can also
22 inform you and submit that these issues were completely argued in
23 Kupreskic. The Defence counsel in Kupreskic argued that this standard
24 that was proposed and adopted is too high a standard and that the Appeals
25 Chamber should adopt a could standard, if the evidence could.
1 These cases and those submissions were before the Appeals Chamber,
2 and we argued it extensively, and, quite frankly, it was rejected. The
3 Appeals Chamber may come to a different standard, but if the Appeals
4 Chamber is applying what is essentially a could standard, an admissibility
5 standard, it's already been rejected. That was the submission of the
6 Defence in Kupreskic. Mr. Clegg, specifically for the appellant
7 Josipovic, argued this issue. And you can see from the Appeals Chamber
8 that they referred extensively to those cases, and they did not accept
9 that at the admissibility stage the matter would be sent back for a new
10 trial or that the standard would be that it could affect the verdict,
11 which warrants a new trial. The issue of testing was also subject to much
12 litigation, I can attest to, in the Kupreskic case.
13 Now, the Court may say that it's going to adopt a standard that if
14 it's reasonably capable of belief, it should go back for a new trial.
15 That standard, quite frankly, was not accepted for overturning the verdict
16 but is only the standard for admissibility. But even assuming that you're
17 going to accept the standard that the admissibility is sufficient to
18 warrant a new trial, you would still have to test the evidence. You
19 simply couldn't decide that it's reasonably capable of belief without
20 testing it. No Court would do that, in my respectful submission. In
21 fact, this was the issue we litigated in Kupreskic.
22 If I could turn you to page 63 of the Appeals Chamber's decision
23 in Kupreskic. As you'll see from the passage I intend to read from, which
24 is paragraph 63, you'll see that what took place was that the Prosecution
25 indicated that it had material which it intended to file which went to the
1 ultimate issue as to whether or not you would order a new trial. Some of
2 it went to credibility, and some of it went to the impact of the
3 verdict -- sorry, the impact of the evidence on the verdict.
4 The Appeals Chamber specifically stated, "This is not the stage to
5 do it. You do it after, and we'll hear it. And we may even decide after
6 we hear your submissions and hear the evidence that our initial impression
7 was wrong."
8 And what they say in paragraph 63 is that:
9 "The credibility component is linked to the danger that appellate
10 proceedings can be abused by a party presenting evidence to the appeal
11 body that appears to be relevant to a material issue, but that has not
12 been tested in the crucible of a trial. In this case, however, the
13 Appeals Chamber was also concerned that at the relatively early stage of
14 the appeal, that the motions for additional evidence were received, the
15 main proceedings should not be unduly delayed by protracted proceedings
16 litigating credibility of evidence tendered in the Rule 115 motions. It
17 would have been counter-productive for the Appeals Chamber to require the
18 parties to present copious amounts of supplementary evidence to
19 demonstrate the veracity of the new evidence, taking up time and resources
20 of the court as well as the parties, only to rule later that the
21 additional evidence did not have the potential of demonstrating that a
22 conviction or sentence was unsafe. The most appropriate course, it was
23 felt at the time, was to apply a relatively low threshold for credit in
24 admitting additional evidence."
25 Then it states that the test is: "...does the evidence appear to
1 be reasonably capable of belief or reliance?"
2 The practice of this Chamber is that any evidence that the
3 Prosecution has which goes to testing the veracity of the documents,
4 testing the impact, and demonstrating that a new trial would be warranted
5 takes place at the second stage. It's respectfully submitted that by
6 considering at this stage to order a new trial, you are not only depriving
7 yourself of the benefit of documents or evidence which would demonstrate
8 that no new trial is warranted, but you're actually proceeding on a basis
9 which was not envisaged by Kupreskic and was envisaged by the practice of
10 the Prosecution as a result of this ruling.
11 The ruling in Kupreskic makes good sense. As a logical matter,
12 this Chamber would not want to hear evidence with respect to credibility
13 or impact for the ultimate determination at the threshold stage in case
14 the Court decides that it wasn't admissible.
15 In the Kupreskic case, there was 25 motions for additional
16 evidence. There was 114 items put forward. There was 36 witnesses.
17 There was statements of witnesses that lasted four days. There was
18 testimony from trials. The Court -- the Prosecution indicated its
19 intention to challenge the veracity of some of this evidence and its
20 impact, and the Court said, "No. You'll get the opportunity to determine
21 that on the stage as to whether or not you should -- we should order a new
23 It's also interesting that the importance of testing the evidence
24 was in essence conceded by the appellant in this very case. When the
25 appellant submitted the three new witness statements, the Prosecution
1 objected on the basis that they were inadmissible. They were in no form
2 that would be admissible before this Chamber or before any Chamber before
3 this Tribunal, excepting that Rule 92 bis applies on appeal, which the
4 Kupreskic Appeals Chamber found that it did, the material wouldn't be
5 admissible here or at a trial level.
6 The Defence counsel in their response said, "We're not tendering
7 it as evidence. We're tendering it as prima facie evidence to show the
8 Court that it would be admissible." In my submission, clearly
9 acknowledging there is a second stage before the Court can rely on it.
10 What the result is, then, is that the parties are proceeding and
11 the Prosecution is proceeding on the basis to admit it. The Defence
12 acknowledged that it's actually not evidence before you, but it's only
13 prima facie evidence for admissibility, and they invite the Appeals
14 Chamber to actually have the witnesses come and permit the Prosecution to
15 cross-examine them. And now by the --
16 THE INTERPRETER: Could counsel please slow down.
17 MR. FARRELL: My apologies.
18 Now by the procedure which is envisioned here, that very issue
19 will not be granted.
20 Before turning to the second stage of my submission, I simply note
21 that there are a number of domestic jurisdictions which are presented to
22 the Chamber by both parties. As indicated, these decisions have already
23 been considered and the standard by the Appeals Chamber has been
24 established in Kupreskic.
25 If the standard which has been submitted and which is found in
1 these cases which permit an Appeals Chamber to consider ordering a new
2 trial at the admissibility stage, most of these cases and certainly the
3 persuasive ones say that the evidence must be tested.
4 Even if you accept a standard from national jurisdictions that
5 once it's shown that the evidence could affect a verdict, you would order
6 a new trial, and you've heard the Prosecution's submissions on that. It's
7 not the law of this Tribunal and it was already debated, but even if you
8 do, the cases say that it won't be sent back on that standard until it's
9 tested. So not only is it not tested in this case, it's not following, as
10 I've indicated, the standard in Kupreskic.
11 If you look at the main case cited, Clegg, Luvaglio, or the
12 Canadian cases: Levesque; Stolar, it's a Canadian case; or the "Salhany"
13 procedural law textbook in Canada, they indicate that the -- before a
14 determination can be made, the evidence must be tested.
15 Now I'll turn to the second argument of the Prosecution which is
16 that if you do have the authority under the law of the Tribunal to order a
17 new trial at this stage, I submit that the new evidence does not justify a
18 new trial at this stage. There are five points which I will make in my
19 submissions, and I'll just outline them now. And these are five issues
20 which, in the Prosecution's submission, I think that the Scheduling Order
21 essentially indicates should be addressed.
22 The first is whether, on the basis of the evidence presented
23 before it at this stage, a new trial is justified. And I take that as
24 being "at this stage" being at the stage where there has been no testing.
25 That's the procedure we're at now. The second question is whether the
1 sheer volume of the 47 documents and the two witnesses warrants a new
2 trial. The third issue alluded to in the judgement is whether the
3 complexity of the case at this stage warrants a new trial. The fourth
4 issue is whether or not it is better that a Trial Chamber hear this
5 evidence and not the Appeals Chamber. And the fifth, which seems to be
6 implied, though it's not explicit, is whether there is a requirement for a
7 rehearing of the entire case.
8 Starting with the first issue concerning the justification of a
9 new trial on the evidence as you have it before you. I would like to take
10 you through some documents in relation to the ones admitted, and I will be
11 referring to the material which was provided to the Court, that's the
12 documents to be referred to by the Prosecution at the oral hearing.
13 If I can start by taking you to -- you'll see in the front, it's
14 an attempt to have an index. It doesn't have the registry page numbers -
15 I'm sorry we didn't have them at the time we created it - but if I can
16 start by -- I'm not going to go through all of these, they are just
17 illustrative to support the Prosecution's argument.
18 If I may start with Exhibit 146, which has been admitted, it's
19 registry page number 16.796 in the material before you, if you follow the
20 page numbers at the bottom, Your Honours, it's -- page 107 is the first
21 English one.
22 Exhibit 146 that's been filed by the appellant to demonstrate that
23 the appellant Blaskic is reminding his commanders to comply with
24 international humanitarian law. This is on April 24th, 1993, and it's in
25 relation to the zone of responsibility of Kiseljak. Now, the name at the
1 bottom, Bozic, is Blaskic's direct subordinate in the operative zone.
2 Now, if you look at the document, you'll see that in the first
3 paragraph, it indicates that the following order by Brigadier Commander
4 Bozic is pursuant to two orders. The second one I'd ask you to take note
5 of, order number 01-4-546/93 of April 24th, 1993; that's Blaskic's order.
6 And this material is put forward to show that Blaskic actually informed
7 his commanders in Kiseljak to comply with international humanitarian law.
8 And the significance of this document is, in fact, that it's Blaskic's
9 orders that they're relying on. And this was admitted as a new document
10 not available at trial, and this was admitted under the basis that it was
11 from the Zagreb archives and not admissible.
12 If you turn over two pages to page 109 at the bottom, you'll see
13 an order from Blaskic requiring three things, and if you look at the top
14 left-hand side, the order number is 01-4-546/93. This is the order that's
15 referred to in the Bozic order. The Bozic order is put in for the purpose
16 of showing that General Blaskic is giving orders to his subordinates. One
17 would presume that this order is actually the more exculpatory because it
18 actually demonstrates that an order was given, and this is the order and
19 this is the content of the order. Therefore, this is actually more
20 exculpatory or more important than the order to Bozic.
21 This was Exhibit -- Defence Exhibit 362 at trial, and the
22 Prosecution's submission is it's hard to imagine how an exhibit which has
23 been admitted for the purpose of demonstrating that Blaskic issued orders
24 is somehow going to warrant a new trial when the actual order it's relying
25 on was submitted by the Defence already.
1 If I can ask you to turn over a few pages to page 112 in the
2 right-hand corner, it's registry page 16.791. This is Defence Exhibit 147
3 admitted on this appeal. Once again, it's presented by the appellant as
4 being a document which shows that Blaskic issued an order which they
5 complied with.
6 If you look in the first paragraph of this order, it says that the
7 order was issued pursuant to order number 01-4-560/93 of the 24th of
8 April, 1993. Once again, this is submitted to show that the order of
9 Blaskic was specifically to comply with international humanitarian law.
10 The inference, once again, is that if it shows that there was an order,
11 the inference being that there is an order directly from General Blaskic
12 to comply with international humanitarian law in relation to the Kiseljak
14 If I could ask you to turn over two pages, please, to page 114 in
15 the bottom right-hand corner, you'll see that this is the order and if you
16 turn over to the next page, you'll see the French version which
17 specifically has the reference number 01-4-560/93. Now, presumably, this
18 order itself is the more exculpatory of the two, because it actually is
19 issued by General Blaskic. It actually shows that he issued an order to
20 the Kiseljak region on April 24th, 1993, asking them to comply with
21 international humanitarian law; therefore it's, of course, presumably of
22 more weight than the order of the subordinate which just refers to his
23 order. This was Exhibit D-78 at trial.
24 Once again, the Prosecution fails to see how these documents are
25 such that the Appeals Chamber on the basis of documents that were
1 essentially before the Trial Chamber, actually better documents before the
2 Trial Chamber, would be such that you would consider these in warranting a
3 new trial.
4 And lastly on these two documents, I'd note one final thing: The
5 Defence of Blaskic at trial was that he was cut off from Kiseljak, and
6 that therefore he had no communication or control in Kiseljak. He puts in
7 these orders from Bozic to demonstrate that he actually issued proper
8 orders. Well, that was clearly before the Trial Chamber, in fact, better
9 orders were before the Trial Chamber and it made no difference.
10 So what we have then is we have documents of no exculpatory value
11 in relation to the Trial Chamber's finding, but documents which show that
12 there was orders received by the Kiseljak Operative Command on two days in
13 the middle of April during the fighting and, in fact, these documents are
14 inculpatory. They refute the Defence argument that he had no ability to
15 communicate with Kiseljak because it was shut off.
16 If I may now refer you to Exhibit 14. This is the Defence Exhibit
17 14 which was admitted on the appeal. It's page 51 of the documents to be
18 referred to by the Prosecution. It's registry page 16.852.
19 You'll note that this is a report in March of 1994. It's
20 approximately almost one year after the event in Ahmici. It's an
21 intelligence report which is unsourced and which has no evidence to
22 substantiate it. It's just assertions made in an intelligence report in
23 Zagreb from the son of Franjo Tudjman to Franjo Tudjman, the President of
24 Zagreb. There's a number of references in here, and I can address them if
25 you wish, but I'd just like to refer to one reference in this document.
1 On the next page of the document, you'll see there's full text the length
2 of the page, and in the beginning of the second full text -- I'm sorry,
3 second full paragraph in the text there's reference to Mario Cerkez.
4 Now, the Defence theory is that Blaskic cannot be responsible for
5 Ahmici for a number of reasons, one being that the Vitez Brigade was not
6 in Ahmici. The Vitez Brigade falls under Mario Cerkez and reports
7 directly to General Blaskic. This is one of his regular units which was
8 never disputed during the trial, and Blaskic indicated that they were a
9 regular unit falling under his command.
10 The appellant was convicted at trial on the basis that the Vitez
11 Brigade was in Ahmici. His additional evidence here - and there's one
12 reliance on the war diary - is this comment and this is the only comment
13 in relation to Mario Cerkez before you, is the comment that Mario
14 Cerkez -- I apologise, was not involved in the massacre in Ahmici. That's
15 the new evidence in relation to the Vitez Brigade in Ahmici in March
17 If I can just take you to the material which follows, if you turn
18 to two pages over which is page 55 at the bottom, you'll see a report
19 dated the 16th of April at 10.00 to Blaskic. At the top, you'll see to
20 the command of the Central Bosnia Operative Zone, that's General Blaskic.
21 And you'll see at the bottom that it's from the Brigade Commander Mario
22 Cerkez. It's at 10.00 in the morning on the 16th of April, the day that
23 the attack on Ahmici started. The title of the report is Report on the
24 Situation in the Area of Responsibility.
25 If you look at about the middle of the page with the words
1 beginning, "Our forces are advancing." You'll see that it says, "Our
2 forces are advancing on Donja Veceriska, whose fall is imminent, and in
3 Ahmici." This is at 10.00 in the morning of the attack in Ahmici, an
4 order from Mario Cerkez of the Vitez Brigade to General Blaskic.
5 If I can ask you to turn over two more pages to page reference 57
6 at the bottom right-hand corner. This is an order dated April 16th at
7 10.35; it's 35 minutes after the previous order. It's an order from
8 Blaskic to the commander of the Vitez Brigade, that's Mario Cerkez. It
9 says, "The following shall be done in connection with your report number,"
10 then it lists the number. That's the previous order I just showed you.
11 It says, "Capture the villages of Donja Veceriska, Ahmici, Sivrino Selo,
12 and Vrhovine completely."
13 At 10.35 in the morning, General Blaskic, who claims he doesn't
14 know anything about Ahmici, who claims he didn't even find out about it
15 about the crimes until the 22nd, and who claims that he was the commander
16 of the Vitez Brigade, but the Vitez Brigade was not present, was giving an
17 order to the Vitez Brigade to basically completely capture Ahmici at 10.30
18 in the morning.
19 If I can ask you to turn over three pages to page 60 at the bottom
20 right-hand side. This is, as you can see in the top left-hand corner, a
21 report on April 16, 1993. There's no time, but based on the previous
22 order and the following order, I will show you that this has to be between
23 10.00 a.m. and 2.00 in the afternoon on April 16th.
24 This is from the Vitez Brigade to Blaskic. Under number 1 it
25 says, second paragraph under number 1: "The village of Ahmici is also 70
1 per cent done..."
2 Once again, this is conclusive evidence that General Blaskic had
3 the Vitez Brigade involved in the attack on Ahmici.
4 And I'll note you'll see in the judgement, if you go back to it,
5 that the position of General Blaskic was that the Vitez Brigade was not
6 involved in the fighting. That was his defence. I think the orders speak
7 for themselves.
8 Lastly, I'd ask you to turn to the document, page 62 at the
9 bottom. This is an order from General Blaskic to Mario Cerkez, Commander
10 of the Vitez Brigade, referring to the previous order or the previous
11 report which I just took you to, and it says under paragraph 2: "Continue
12 the activities described under item 1 of your report."
13 If you go back, item 1 includes the attack on Ahmici being 70 per
14 cent done.
15 I won't continue with the documents that are listed behind
16 Exhibit 14. What the Prosecution's submission is is that if permitted to
17 file material on this issue, based on the one document which you've
18 admitted, which is an unsubstantiated intelligence report in Zagreb that
19 Mario Cerkez wasn't involved, a report that was written in March of 1994 -
20 of course if the Chamber had the benefit of the material which the
21 Prosecution would file - based on this evidence before you now and an
22 unsubstantiated intelligence report almost a year later. I think there is
23 no doubt that the Appeals Chamber would not think it sufficient to order a
24 new trial on Ahmici to the extent that he's liable for the involvement of
25 the Vitez Brigade.
1 If I can take you lastly to Exhibit 88. This is page 74 of the
2 documents to be referred to. This relates to the special unit called the
3 Vitezovi. The Vitezovi was considered to be a special unit that was
4 within the command structure of General Blaskic and assisted in the
5 fighting in the Central Bosnia Operative Zone.
6 The position of the appellant in his first additional evidence
7 motion is that the Vitezovi were commanded from Mostar. Therefore, it was
8 a parallel chain of command and outside his chain of command, and that in
9 addition to be commanded from Mostar, which is a de jure argument, the
10 position also in their first additional evidence motion is that he
11 actually had no de facto control over the Vitezovi and that even though he
12 was surrounded in a pocket with the Vitezovi within his command formation,
13 they actually didn't take any orders from him. That was rejected by the
14 Appeals Chamber -- by the Trial Chamber, I'm sorry.
15 This document is one of a number of documents - I think there's
16 six - that are filed to demonstrate that the Vitezovi were outside of the
17 control of General Blaskic. I don't need to list the others ones, but
18 they've been admitted as part of the 47 documents. I take this one, this
19 exact document, because of the time of it. This is on the 17th of April,
20 1993. Now, the Defence have submitted this because this is a crucial
22 On the 16th and the 18th of April, the Vitezovi were involved in
23 the attack on Stari Vitez, and on the 20th of April, the Vitezovi were
24 involved in the attack on Gacice. Now, the appellant doesn't deny that
25 certain attacks took place. What he is says is that they were outside his
1 command and control and that Kraljevic, the head of the Vitezovi, was
2 basically uncontrollable and that he reported directly to Mostar.
3 Now, the appellant has submitted this and this document has been
4 admitted, once again just at the threshold of admissibility stage, that
5 it's capable of belief, as indicating that this shows that the commander
6 of the Vitezovi, which you can see at the bottom is Darko Kraljevic, that
7 he is sending an order directly to the Main Staff in Mostar. If you see
8 the top it says: "The head of Defence," "The Chief of the Main Staff,"
9 and then, "Colonel Primorac."
10 The argument is that this evidence would demonstrate that the
11 Vitezovi does not report to General Blaskic.
12 If I can just note one thing before I go to the new documents
13 which the Prosecution submit should be before you. If you look in the top
14 of the page, it says: "The Republic of Bosnia and Herzegovina, Croatian
15 Community," then this comes down to "Command of the Central Bosnia
16 Operative Zone, Vitez Forward Command Post."
17 The argument of the appellant is that this was done obviously
18 without Blaskic's knowledge and it was done directly from Mostar. The
19 forward command post is Blaskic's forward command post, and the forward
20 command post at this time is in the Hotel Vitez, which is
21 General Blaskic's headquarters. So it's coming actually from the
22 headquarters of General Blaskic, the forward command post which is
23 stationed within it.
24 If I can ask you to turn over to page 76, please. The Prosecution
25 puts this document before you simply as background. This is a trial
1 exhibit. This is trial Exhibit P666. This trial exhibit indicates that
2 the Vitezovi are attached to Blaskic in January 1993. There was testimony
3 before the Court that that attachment was never removed by Blaskic's
5 If I can ask you to turn over to page 79, please. This is also a
6 trial exhibit, just to put in context order that you've admitted. This
7 trial exhibit indicates that on April 15th, there's a preparatory combat
8 command order, and it's a direct order from General Blaskic to the
9 Vitezovi on April 15th. You'll see at the end of the page what's
10 essentially paragraph 2, it states: "Assignment Of Our Forces." And then
11 on the next page it indicates what the assignment is to the Vitezovi.
12 If you turn over to page 83, please. Once again, this is just to
13 put it in context. This is a trial exhibit. And on April 15, 1993, the
14 same time as the order by General Blaskic, the second paragraph reads:
15 "The Vitezovi unit is, as the name indicates, a special unit which is, in
16 the unified system of command and control in the Central Bosnia Operative
18 Now, these were the documents at trial. It's the backdrop of
19 specific orders assigning tasks to the Vitezovi by General Blaskic.
20 Now, the material you have before you, including Exhibit 88, is
21 material about the criminal nature of the head of the Vitezovi and some
22 orders, number 88 being the one that I drew your attention to because it's
23 on April 17th, right between the two attacks on Stari Vitez in which the
24 Vitezovi was involved.
25 If I can ask you to turn to page 90, please. This is a document
1 which the Prosecution submits should be before you for your determination
2 as to whether you would order a new trial. This is a report from the head
3 of the Vitezovi to Mostar. It's a report from Darko Kraljevic to the Main
4 Staff in Mostar. This is on April the 26th, 1993.
5 I'd ask you to make specific note of the first paragraph.
6 "In the treacherous army attack of the army of BH - in other
7 words the Muslim forces - on everything that is Croatian, on orders from
8 the commander of the Central Bosnia Operative Zone, Colonel Tihomir
9 Blaskic, I carried out the following combat operations."
10 If you look down there, you will see April 16th, April 17th,
11 April 18th, April 19th, April 20th, 21st, 22nd, all the way down to the
13 You will recall that the attacks in Stari Vitez and in Gacice were
14 on the 16th, the 18th, and the 20th of April. This report, which of
15 course goes to Mostar, he does report his tasks back to Mostar, but it's
16 purely a reporting function. This indicates that he was by orders of
17 Blaskic carrying out combat operations, specifically the dates that the
18 crimes were committed at a time when General Blaskic indicated that they
19 were not under his command or control and he had no authority over them.
20 If you turn over to page 93 of the same document, you'll see in
21 the middle of the page in the paragraph the last sentence of the paragraph
22 in the middle of the page it says: "Regarding the Vitezovi, it is best
23 that you read the written commendation from the commander of the Central
24 Bosnia Operative Zone, Tihomir Blaskic, which I am sending you."
25 It's rather odd that somebody who has no authority and no idea
1 what they're doing is actually writing them a commendation in the middle
2 of April during the conflict.
3 Lastly, I ask you to turn over to page 98. This is a report from
4 General Blaskic to the Main Staff in Mostar. It's on the 22nd of June,
5 1993, and it relates to the Vitezovi. If you turn to the second page of
6 that report, specifically page 99 at the bottom, Your Honours. It says in
7 the middle, the beginning of the second full paragraph: "I should mention
8 that the Vitezovi Battalion has, in fact, performed all its assigned
9 combat tasks." It's a little odd that General Blaskic is reporting on
10 combat tasks which he indicates and says that he can't assign.
11 At the bottom of the page it says: "I know that the unit is made
12 up of young men, who sometimes kick over the trace as little, but I know
13 that the unit command is on top of the situation and has absolute control
14 over the entire formation of the unit," and the next part I stress, "and
15 that all Central Bosnia Operative Zone commands are carried out in their
16 entirety, without arguments and on time."
17 My respectful submission, if you had these documents before you
18 and if you were to receive submissions from the Prosecution on these
19 issues, you would not find that a new trial is warranted on the basis of
20 the documents that are before you that have been admitted in the 47
21 documents. In fact, the document which is relied on, Exhibit 88, where
22 the head of the Vitezovi is reporting to the Main Staff is equally
23 consistent with the fact that they report to the Main Staff. They also
24 take their logistical supplies from the Main Staff.
25 I note that there are a number of reports or orders put in where
1 their request for logistical supplies for the Vitezovi from the Main
2 Staff. If you look at Exibit D250 at trial, you'll see that the Vitezovi
3 report in their annual report that they get their logistics from the Main
4 Staff. With respect, based on these documents, the material filed by the
5 appellant would certainly not warrant a new trial.
6 If I may in the last 15 minutes simply go to the other matters
7 that I indicated I would address. One of the issues which is set out in
8 the Scheduling Order is whether the sheer volume of the material warrants
9 a new trial. I respectfully submit that it's not so voluminous. It's
10 47 documents and two witnesses. At this moment, I appreciate, of course,
11 that there are more documents which this Chamber has reserved on, of
12 course. But at this point in time, based on the premise under which we're
13 proceeding is that the 47 documents and two witnesses warrants a new
14 trial. I have already referred to the sheer volume of material dealt with
15 in the Kupreskic Appeals Chamber, and I appreciate the hardship that that
16 put them under, but that matter was dealt with.
17 The complexity of the case, well I'm sure the Appeals Chamber has
18 dealt with more complex issues than this one. In the Celebici appeal, the
19 proceedings were much more extensive and the issues were very complex.
20 The Appeals Chamber has also dealt with the complexity of additional
21 evidence in Tadic where it dealt with 80 witness statements, in Kupreskic,
22 which I've already referred to, in Kambanda where they heard testimony for
23 a full day from Mr. Kambanda himself, from Musema where they called an
24 additional evidence hearing.
25 Second, most of the material before you at this point, 47 are
1 documents. With respect, the Trial Chamber is in no different position
2 than you are when it comes to documents. You assess the documents. You
3 determine whether they fit and whether they're consistent with the
4 evidence that's presently on the record, and you considered them in
5 relation to the evidence on the record. If there are any issues that
6 could go to credibility if documents have to be put to witness, that can
7 be dealt with by this court. There's only two witnesses at this point in
8 time who are indicated as being necessary to be called.
9 Even assuming that the Prosecution calls, take an estimate, eight
10 witnesses in response, that's only ten witnesses. And even if it adds two
11 documents for every one that the Defence has, that's, let's say, 100
12 documents, I don't see any reason why this Court couldn't deal with 100
13 documents and ten witnesses in three to four weeks, as opposed to sending
14 it back for a new trial that would take 25 months.
15 The Appeals Chamber may consider the fact that it's not its
16 function to hear evidence, it's not a fact-finding body, and that's
17 certainly been expressed in some of the previous decisions, but 115 grants
18 it that authority and it's undertaken that task extensively in the past.
19 The Kupreskic Appeals Chamber specifically permits it to send it
20 back to a Trial Chamber to determine the additional evidence, if it's not
21 in a position. There's no authority in Kupreskic, and it certainly
22 doesn't warrant sending it back on new trial on the basis of Rule --
23 Article 25 of the Statute that there was an error when there's been no
24 determination that the facts, in fact, would lead to an error.
25 There is, at least, an assumption that there would be a
1 requirement for a rehearing of the entire case, and it's the Prosecution's
2 submission that that's certainly not the case. I've handed out to the
3 senior legal officer -- he doesn't have to hand it up at this time, it's
4 just for your information, I've given one to counsel for the appellant --
5 a chart of five pages long of counts or subparts of counts which are not
6 affected by the additional evidence.
7 You have to remember that this is a case that stemmed over a
8 14-month campaign, and 20 villages, of three municipalities, and regarding
9 all kinds of crimes. And the chart which I've indicated sets out those
10 ones which are purely illustrative. They're just examples of counts or
11 subparts of counts which are not affected by the additional evidence
12 that's been admitted, and the Prosecution submits that there should be
13 further submissions on this as the Prosecution would make further
14 submissions on the issue of whether the counts are affected and I'll ask,
15 if you wish, that the senior legal officer give it to you at a later
17 Lastly, there are counts that the Prosecution submits should not
18 be sent back for trial even if there is additional evidence and, once
19 again, the Prosecution submits that you should hear the Prosecution's
20 evidence in rebuttal, and material should be tested. But even if that's
21 not the case, you should hear supplemental submissions as envisioned in
22 the previous order.
23 One of the counts is -- relates to the Vitez municipality and
24 relates to Gacice, and in that case, the victims, the civilians from
25 Gacice, in one of three specific aspects of the events there, were taken
1 specifically to the Hotel Vitez which is Blaskic's headquarters. They
2 were placed around the Hotel Vitez for three hours to prevent shelling of
3 the headquarters of General Blaskic. The evidence at trial was that for
4 20 hours the day before, on the 19th, there was shelling of the Hotel
5 Vitez and shelling of Vitez and, therefore, these victims were brought
6 there, 247 were placed around the headquarters of General Blaskic.
7 The testimony at trial was that he left at some point in time in
8 the late afternoon to go to a meeting in Zenica. The war diary is the new
9 evidence now admitted by this Chamber for the purpose of demonstrating
10 that there should be a different finding on that issue. The war diary
11 indicates that General Blaskic left for Zenica at 1650, ten to 5.00 in the
12 afternoon. That's exactly what the Trial Chamber essentially found.
13 The Trial Chamber didn't find that wasn't -- he didn't go to
14 Zenica. The Trial Chamber found he was there for the afternoon during the
15 time, that he left late in the afternoon. Yes, the war diary is submitted
16 by the appellants affect the evidence or is relevant to one of the counts,
17 but with respect, it makes no difference. In the Prosecution's
18 submission, it would be beneficial, in the least, if the Appeals Chamber
19 was to hear submissions on these specific issues before it takes the next
21 In closing, it's the Prosecution's submission that it's premature
22 at this stage to order a new trial as required by the procedural law of
23 this Tribunal, the Rules, and basically common sense when you consider the
24 practical considerations. This Chamber can perform that task and make an
25 informed decision before it proceeds.
1 I wonder whether the Appeals Chamber would do the same if it was
2 an acquittal that was being challenged. On the basis of additional
3 evidence, after a 25-month trial that is untested, no arguments on it, and
4 no evidence in rebuttal, would the Appeals Chamber order that an acquittal
5 is overturned and order a new trial on the basis of the number of
6 documents that were before it and two witnesses which have been
7 unchallenged? I would respectfully submit it wouldn't be the appropriate
9 If you consider the evidence as, in the Prosecution's submission,
10 you should, and as indicated by Kupreskic, you will conclude that much of
11 the appellant's evidence is full of contradictions and unsubstantiated
12 inferences and that many of the factual bases upon which they are asking
13 that a new trial will be ordered will reveal that will be nothing more
14 than a facade.
15 Those are my submissions at the moment, Your Honours. I'm --
16 obviously have eight more minutes for questions; if not, I'm concluded
17 with the Prosecution's submissions on this issue.
18 JUDGE POCAR: I thank you, Mr. Farrell.
19 Do any of the colleagues want to put questions? Judge Hunt.
20 JUDGE HUNT: Mr. Farrell, you said that we had authority under
21 Rule 115 to refer to a Trial Chamber the issues which arise under that
22 Rule. The Rule itself doesn't say so, but are you relying, for example,
23 upon the Celebici decision to refer such a type of matter to a Trial
25 MR. FARRELL: No, I may have misspoke there. The reliance is
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 specifically on the Kupreskic Appeals Chamber judgement, paragraph 70,
2 where it indicates that, "The Appeals Chamber can test the evidence itself
3 or order the case to be remitted to a Trial Chamber to hear the new
4 evidence." That's the passage, Your Honour.
5 JUDGE HUNT: I am grateful to see that there is some support for
6 the Celebici judgement that was so strongly challenged on that point.
7 MR. FARRELL: Yes.
8 JUDGE HUNT: The other question I have of you is this: You said,
9 in relation to some of the documents you've shown us, that's in your pile
10 of documents, that they are exhibits at the trial. Were they all exhibits
11 at the trial?
12 MR. FARRELL: No, they were not, Your Honour.
13 JUDGE HUNT: What was your source?
14 MR. FARRELL: The source is the material that was received by the
15 Prosecution from the Zagreb archives.
16 JUDGE HUNT: So it's the same source as the material that the
17 appellant was relying on?
18 MR. FARRELL: I'm not sure exactly where the appellant got them
19 from, but to the extent that he got them from the Zagreb archives, it
20 would be the same, yes.
21 JUDGE HUNT: A great deal of this material has. So you would rely
22 upon it as new evidence on the same basis as he has?
23 MR. FARRELL: Well, the Prosecution does not have to admit it as
24 new evidence. It's not a 115 application. We don't have to put it
25 forward on that basis. But if what you are insinuating is it came from
1 the same source and wasn't available which, of course, goes to your next
2 question which is: If there isn't evidence available during the trial and
3 this has come to light after the fact, especially in the case of a large
4 archive, would it be more just to send it back for a new trial? I
6 JUDGE HUNT: That is a very important issue in this appeal, isn't
7 it, but I wanted just to check that. Is all from the same source, in
9 MR. FARRELL: In effect, yes.
10 JUDGE POCAR: Well, if there are no other questions, I don't have
11 any questions to put to the Prosecution now. I -- we can perhaps break
12 now for half an hour and then hear the appellant.
13 MR. FARRELL: That's fine with the Prosecution.
14 Thank you, Judge Pocar.
15 JUDGE POCAR: So the meeting is adjourned now.
16 --- Recess taken at 3.40 p.m.
17 --- On resuming at 4.10 p.m.
18 JUDGE POCAR: So we can resume our hearing. I give the floor to
19 counsel for the appellant for 75 minutes. You have the floor.
20 MR. HAYMAN: Thank you, Your Honours, and thank you for the
21 opportunity to address these issues here today with the Appeals Chamber.
22 The fundamental problem in this case is one that the Prosecution
23 is responsible for, and that is that they chose to bring the indictment in
24 this case at a time when they did not have access to the war archive of
25 the HVO or the BH army. They chose to bring a case of command
1 responsibility against then, at the time of the war, Colonel Blaskic, who
2 was responsible for the Bosnian Croat militia area of responsibility
3 within Central Bosnia, and the prosecution was undertaken without either
4 the complete archive of the HVO militia, the Bosnian Croat militia, or the
5 archive of the BH army, that is the army of Bosnia and Herzegovina, which
6 was the successor, if you will, to a large extent to the Territorial
7 Defence or TO forces in Bosnia-Herzegovina.
8 So the prosecution was undertaken, if you will, with a relative
9 lack of access to the most important evidence in the case, because in a
10 case, I submit to you, of command responsibility, it is very important
11 what the orders flowing down from the commander are and what the reports
12 flowing up to the commander are. It is very important what documents like
13 the war diary show. What was the information that the commander had
14 available to him? This case was prosecuted without that material, and
15 that was a decision that the Prosecution made.
16 The result has been this tortured, if you will, appellate
17 proceeding to date where documents have been dribbling in. We have filed
18 three Rule 115 motions, as the Court is aware. We're continuing to get
19 more documents from the Prosecution under Rule 68. They have told us
20 they're reviewing another 1.4 million pages of documents. This is in the
21 court record. They filed their correspondence with Your Honours. And
22 they believe 25.000 pages of that material are likely to be directly
23 relevant to General Blaskic and his area of command during the civil war.
24 So here we are. Here we are. Meanwhile, General Blaskic has been
25 in prison for six and a half years.
1 The Prosecution feels it's premature to remand this case for a new
2 trial. We do not think it is premature, and we ask the Appeals Chamber to
3 act with due speed to remand this case for a new trial.
4 My learned colleague first addressed the question of whether Your
5 Honours have the authority to remand the case for a new trial. I disagree
6 with my learned colleague. Both Article 25 of the Tribunal Statute and
7 Rule 117 (C) give Your Honours authority to remand a case on appeal to a
8 Trial Chamber for a new trial, and that authority was recognised in the
9 Jelisic Appeals decision, in paragraph 73, where that opinion expressly
10 acknowledged that Your Honours have the discretion to order a retrial.
11 Rule 117 does not limit that ability, and I submit to you that Rule 115
12 does not limit that ability. If you look at Rule 115 and the cases
13 applying it and interpreting it, none of these cases say that this Court,
14 in accepting a 115 motion to admit new evidence, is somehow locked into a
15 process or a procedure which it must pursue for months and months and
16 months without making an ultimate decision in a case, particularly whereas
17 here the appellate briefs were filed months ago.
18 Your Honours have the appellate briefs. You have our three Rule
19 115 motions. You have ruled on approximately 50 items in those Rule 115
20 motions. You have a tremendous amount of information before you. All of
21 those processes have been duly pursued and Your Honours have given it
22 great attention. So we disagree with the Prosecution that you don't have
23 the authority and that it's premature to act in this appeal.
24 The Kupreskic appellate decision does not differ, we submit, from
25 that analysis. Paragraph 70 of that opinion states, in essence, that once
1 an Appeals Chamber find there is relevant -- finds - excuse me - there is
2 relevant 115 evidence, you have two choices. You can weigh it yourselves,
3 or you can send it back to the Trial Chamber -- to a Trial Chamber. It
4 doesn't limit what -- for what purpose you can send it back. You can send
5 it to a Trial Chamber for retrial, we submit, and we submit that that is
6 included within the analysis described at paragraph 70 of the Kupreskic
7 appellate decision.
8 That's all I'm going to say about your authority. You have the
9 authority to do it, and the Defence calls upon you in this case to act
10 pursuant to that authority.
11 Should you order a retrial based on the newly admitted 115
12 evidence? That is the question you asked us to address. That is the
13 question I will focus on.
14 The Defence submits that you should do so for three independent
15 reasons, and I will list them and then address them in order. First, the
16 content or substance of the newly admitted evidence requires a retrial.
17 Second, procedural fairness in this case requires that a fair trial be
18 held. The first trial was not a fair trial for reasons I will enumerate,
19 so we need a new trial for procedural fairness. Third, the efficient
20 process of justice requires a new trial.
21 First, what about the new evidence and its contents? Well, the
22 standard articulated in the Jelisic decision is that this Court can remand
23 for a new trial if it's in the interests of justice. And the Jelisic
24 appellate decision enumerates some of those factors, but I believe they
25 are illustrative not exclusive, and I will address at some length, in my
1 comments, why it is in the interests of justice for a new trial to occur.
2 To understand the meaning of the new evidence, we need to step
3 back from the analysis that my learned colleague undertook. He looked at
4 a few orders, made some interesting comments that I will respond to in due
5 course. But I ask you to step back for a moment, look at the new evidence
6 in it's totality and at it's core what the new evidence tells Your Honours
7 about the crimes in Ahmici, where horrible crimes occurred and more than
8 100 civilians - men, women and children - lost their lives in the early
9 morning of April 16th, 1993.
10 The Trial Chamber was faced with a situation where there were no
11 illegal orders by the accused. How did the Trial Chamber reach its
12 judgement? And again, I have great empathy for the Trial Chamber acting
13 in the relative vacuum in which it was forced to act by the Prosecutor's
15 The Trial Chamber reasoned as follows: Colonel Blaskic had
16 effective control over all the HVO troops in the Lasva Valley. Crimes
17 were committed by those troops that were organised and had to be organised
18 and orchestrated by some supervisory or directing authority. Therefore,
19 the Trial Chamber concluded Colonel Blaskic must have organised, directed,
20 and orchestrated those crimes because he was the superior authority. He
21 was the only superior authority over those troops in the Lasva Valley.
22 That is the thesis of the judgement.
23 The Trial Chamber went on to evaluate the rest of the evidence
24 within this framework. It found, for example, because they didn't have
25 all of Colonel Blaskic's orders, they inferred that some of the missing
1 orders were likely illegal orders to commit crimes. That's in the
2 judgement at paragraphs 589 and 590. They didn't have access to the
3 archives. They couldn't go and see what were the orders issued between
4 Thursday and Saturday. If they had, they could have gone and looked at
5 those orders and seen that there were no illegal orders.
6 The Trial Chamber also reasoned that with respect to the critical
7 issue of Ahmici and whether he ordered the crimes, and whether,
8 thereafter, he attempted to diligently investigate who had committed those
9 crimes so that they could be brought to justice, the Trial Chamber found
10 that Colonel Blaskic was not able to produce a copy of the investigative
11 report by the Bosnian Croat Security and Information Service or SIS which
12 he claimed, and he did testify and say he directed SIS to investigate
13 Ahmici, the Trial Chamber found because Colonel Blaskic wasn't able to
14 produce that report - and I believe the Trial Chamber called it the single
15 one most important piece of evidence that Colonel Blaskic could have
16 produced to clear his name - the Trial Chamber found that failure, "Cast
17 doubt on the very existence of such a report." I am quoting from the
18 judgement at paragraph 493.
19 I'll return to the existence or nonexistence of that report in a
20 moment. That's the essential framework of the judgement. Our thesis is
21 that the archival evidence breaks the chain of logic in the Trial
22 Chamber's reasoning. It breaks it in several important areas. First --
23 well, let's return to the report. We have the SIS report, the
24 investigative report into the crimes in Ahmici. It corroborates not only
25 that there was an investigation, that there was a report prepared, the
1 report is dated in November of 1993, which is about the right time given
2 the attempts by appellant, repeated attempts to have an investigation
3 conducted. But the report exonerates the appellant. It identifies the
4 perpetrators of the crime in Ahmici and exonerates him.
5 Imagine how different the trial would have been below if we had
6 been able to get that report and produce it to the Trial Chamber. Instead
7 of inferring that his failure to get it indicated his guilt, the Trial
8 Chamber would have known he pursued it, he had it investigated. The
9 perpetrators were identified, they were reported, by the way, not to him,
10 but to the political leadership in Bosnia in Herzegovina. That is the
11 Croatian, the Bosnian Croat political leadership in Mostar as well as
12 President Tudjman in Zagreb who did nothing to bring the real perpetrators
13 to justice. Only this court has taken steps, meaningful steps, to bring
14 the real perpetrators to justice.
15 But what is the importance of the new evidence? Let me step back
16 from the SIS investigative report of Ahmici and proceed a little more
17 analytically. First of all, the new evidence indicates that Colonel
18 Blaskic did not have effective control over the two key special units
19 operating in the Lasva Valley and they were the 4th Battalion of the
20 military police, and the Vitezovi unit.
21 Why is this very important? This is very important because most
22 of the units, most of the brigades based in towns were made up of
23 villagers with very little by way of military training, very little by way
24 of arms. They were not -- they were in the nature of a village militia,
25 not in the nature of army troops as we, in the west, tend to think of
2 By contrast, the Vitezovi and the military police 4th Battalion,
3 particularly the Jokers unit, they were young men, they had special pay,
4 they had special weapons, they had training, and they answered directly to
5 elements outside of the Lasva Valley.
6 The military police unit answered to the military police
7 administration in Mostar, and the Vitezovi answered to the Ministry of
8 Defence in Mostar. That's how they got their special pay, their special
9 logistics, their special weapons. So they, in a sense, were the most
10 capable fighting forces in the region. However, these units were made up
11 of young men and they were headed by criminals.
12 Darko Kraljevic, who headed the Vitezovi, was someone who acted on
13 his own will and there were various -- I will refer to a couple of
14 incidents but he was someone who was out of control in ordinary parlance.
15 The military police, meanwhile, particularly the 4th Battalion, as
16 I'm speaking of, and the Jokers, they had a line to the military police
17 administration in Mostar, but they actually had a very close relationship
18 with the political figure in Busovaca. Most of the men in the Jokers unit
19 of the military police came from Busovaca, and that man was Dario Kordic.
20 So what is the evidence? What is the new evidence about the
21 ability of Colonel Blaskic to have effective control over the military
22 police? Well, the intelligence reports that we have provided to you
23 detail that the military police acted at their own initiative, on their
24 own adventures or misadventures. For example, Exhibit 10 to our first
25 Rule 115 motion: Two other witnesses speak very clearly to this and these
1 are witnesses that testified for the Prosecutor from the Kordic trial.
2 General Merdan, a General in the BH army testified that Colonel Blaskic
3 could not control Darko Kraljevic and the Vitezovi. Indeed, it was viewed
4 as a laughable proposition, as I recall.
5 Similarly the information officer for the Vitezovi testified in
6 the Kordic case. His name is Ante Breljas. He testified that Kraljevic
7 did what he wanted. If he wanted to go along with whatever, if there was
8 a military operation that Colonel Blaskic wanted to pursue, he would go
9 with it if he wanted, and if he didn't, he wouldn't. And if he wanted to
10 do his own action on his own initiative, he would do that also.
11 THE INTERPRETER: Could counsel please slow down.
12 MR. HAYMAN: We have reports --
13 JUDGE HUNT: Just slow down.
14 MR. HAYMAN: I'm sorry. After all these years, the case is still
16 So we have General Merdan, Mr. Breljas, intelligence reports all
17 informing us, if you will, that although at times the Vitezovi did act in
18 concert with other HVO units, the Trial Chamber was not in a position to
19 assume that Colonel Blaskic had effective control over the Vitezovi at all
20 times, and that is the assumption they made in the three-step logic that I
21 outlined earlier.
22 Now, there were some comments by my colleague about the Vitezovi
23 specifically, and I believe he tendered to Your Honours in one of his
24 filings some additional and new documents relating to the Vitezovi, and
25 one of them is a report from this Kraljevic who headed the Vitezovi
1 saying, "During this period of time I did all these things acting on
2 Colonel Blaskic's orders."
3 This isn't a mini-trial, and I don't want to spend a lot of time
4 responding to these discrete documents, but I can't resist responding to
5 these few. First of all, note that the reports were sent to the Main
6 Staff in Mostar. What is the Vitezovi unit doing reporting to the Main
7 Staff in Mostar if they're truly subordinated to Colonel Blaskic in
9 One of the documents is a protest to the BH army. Mr. Kraljevic
10 is sending his own protest to the enemy forces, speaking directly to them,
11 not through any command structure either in Mostar or in Vitez. He's
12 having his own dialogue with the enemy. That would be insubordination in
13 any normal configuration or army.
14 Also, if you look at all these documents authored by
15 Mr. Kraljevic, leader of the Vitezovi, you will see that Colonel Blaskic
16 isn't copied on any of them. He wasn't privy to any of those
17 communications. Mr. Kraljevic considered him largely irrelevant.
18 Mr. Kraljevic carried on his own dialogue with his superior command in
19 Mostar, with enemy forces, et cetera.
20 So the new evidence speaks to a lack of effective control over the
21 military police and the Jokers. It speaks to a lack of effective control
22 by Colonel Blaskic over the Vitezovi. It also speaks to the situation in
24 If you haven't seen a map, it's very instructive. During this
25 relevant period of the war, there was a small enclave around Vitez a mile
1 or two across. There was a larger enclave around Kiseljak, and there's a
2 road connecting them, and a few -- a hundred yards on either side of the
3 road was controlled by the HVO. So in the nature of a dumbbell, if you
4 will, with one end of the dumbbell larger than the other. The road to
5 Kiseljak and in between -- and there's a third little circle, essentially
6 Busovaca. The road to Kiseljak was cut in January of 1993 by the BH army,
7 and thereafter, Colonel Blaskic could not travel to Kiseljak other than
8 with the help of UNPROFOR.
9 So my learned colleague showed you a couple of reports, additional
10 reports I think that we've tendered, to show that despite the fact that he
11 was cut off, Colonel Blaskic continued to send humanitarian orders to
12 Kiseljak, and we tendered the additional follow-up, if you will,
13 disseminating orders by the commander down there to show you that these
14 were real orders issued by Colonel Blaskic. They weren't orders issued
15 with a wink and a nod. They were serious orders, and they were apparently
16 repeated in those instances.
17 Nonetheless, if you look at the new evidence that we've submitted,
18 with respect to Kiseljak first of all, there is an EC monitor by the name
19 of Witness AO or AD, I believe it's AD, who testified again in the Kordic
20 case that Blaskic didn't have reliable information about events in
21 Kiseljak or the other far-flung enclaves, and he could not control HVO
22 troops in those far-flung, cut-off, disparate enclaves.
23 The new evidence also shows that the person who became the
24 commander in Kiseljak, Ivica Rajic, he reported directly to the Main Staff
25 in Mostar because he could travel to Mostar, whereas those in the Lasva
1 Valley, such as Colonel Blaskic, could not travel by land to Mostar. So
2 the new evidence also addresses the question of whether Colonel Blaskic
3 had effective control over HVO troops in Kiseljak, and that evidence
4 speaks clearly that he did not.
5 But that is just the beginning of it, Your Honours. Not only does
6 the new evidence show that these units, particularly the military police
7 and the Vitezovi, acted on their own will and at their own initiative, but
8 other elements outside of the de jure chain of command exerted control
9 over the military police, particularly the Jokers, and I'm referring to
10 Dario Kordic.
11 What evidence am I speaking of? Well, if you look at Exhibits 4
12 and 5 to our Rule 115 motion, you will find reports authored for President
13 Tudjman of Croatia by the Croatian intelligence service written in
14 February of 1994. February of 1994 is long before Colonel Blaskic was
15 ever charged with anything in connection with this case, to my knowledge.
16 Those intelligence reports which, by the way, do cite statements
17 having been taken from witnesses and so forth, state unequivocally who is
18 responsible for the crimes in Ahmici, and it states that Dario Kordic and
19 another man named Ignac Kostroman, who was also a political figure in the
20 Busovaca area of Central Bosnia, were responsible for directing and
21 ordering the massacre. It goes on to say that Colonel Blaskic had little
22 influence, if any, over military operations designed by Kordic and
24 Now, rather than speak to the issue of Ahmici and the impact of
25 the new evidence concerning who actually ordered those crimes, the
1 Prosecutor nibbles at the edges and ridicules the statement in this HIS
2 report that the Vitez Brigade was not in Ahmici. Now, this is an
3 important point, in all fairness to the Prosecutor, because the military
4 police acted on orders of others and the Vitez Brigade was more of a
5 village brigade without this exotic relationship, if you will, with a
6 political figure in Busovaca.
7 However, if you look at the reports that my colleague has cited
8 to, they are in the nature generally of general reports from the Vitez
9 Brigade reporting on activity in their entire geographic area, that is the
10 Vitez municipality. One of them lists 15 different locations where
11 there's fighting going on. The Vitez Brigade was not in all those
12 places. They were making a report of the geographic area of the Vitez
13 municipality to their commander.
14 I also note that although it is interesting for the Prosecutor to
15 still be arguing that the Vitez Brigade was in Ahmici, the Kordic Trial
16 Chamber found they were not in Ahmici until the afternoon of April 16,
17 1993, long after the massacre was committed. Indeed, the commander of the
18 Vitez Brigade Mario Cerkez, he was acquitted for any involvement or role
19 in the Ahmici massacre. So it is a little perplexing why the Prosecutor
20 is still beating this drum to defend its conviction of the accused based
21 on the ground that the Vitez Brigade somehow participated in the massacre
22 in Ahmici which by all accounts occurred between 5.30 and 7.00 or 7.30 in
23 the morning on the 16th of April, 1993.
24 And lastly on this point because it is a bit of a tangent, if you
25 look at the war diary which the Prosecutor pooh-poohs, all the reports
1 from the Vitez Brigade on the morning of April 16th are from areas in the
2 Vitez town area or other areas where they were assigned in the orders for
3 defence that were issued prior to the 16th. There were no reports
4 reflected in the war diary for the Operative Zone from the Vitez Brigade
5 from Ahmici on the morning of April 16th. That's the value of
6 contemporaneous evidence, evidence produced as a matter of business
7 practice or military practice contemporaneously at a time when the events,
8 in fact, were unknown, how the events would unfold is unknown.
9 So I was speaking to the HIS reports, that is Hrvatska
10 Intelligence Service, H-I-S, which is the Croatian intelligence service,
11 prepared for President Tudjman in February of 1994. They are important
12 evidence, we submit. But there is more. The first exhibit to our second
13 Rule 115 motion provides even more detail about the planning and
14 implementation of the massacre in Ahmici. This is a report prepared by
15 the Ministry of Interior or the MUP, M-U-P in Croatia.
16 This report details how late in the evening, the evening of April
17 15th to 16th, there was a clandestine meeting at the home of Dario Kordic
18 in Busovaca attended by the leadership of the Jokers and the military
19 police, and at that meeting, a decision was made to cause a massacre in
20 Ahmici so as to scare the Muslim population out of the Lasva Valley. That
21 appears to have been the perverse and criminal motive for this crime.
22 That decision, as set forth in this report, was taken without the
23 knowledge of and with no involvement of Colonel Blaskic who was at his
24 military headquarters in Vitez. He was not at that meeting. He was not
25 mentioned at that meeting. He had no involvement in that meeting.
1 So our thesis is the new evidence breaks key links in the logic,
2 the chain of logical conclusions that the Trial Chamber reached which
3 unfortunately were reached because of the relative vacuum of particularly
4 documentary information that the Trial Chamber was forced to deal with.
5 Does this evidence require a new trial? I've already spoken to
6 the fact that we believe that the jurisprudence of this Tribunal would
7 permit it, certainly under the Jelisic opinion. And we also submit that
8 this would most appropriately occur before a Trial Chamber, because as
9 this Court has opined, I think in different settings, Trial Chambers exist
10 to make findings of fact. Findings of fact are entitled to deference by
11 an Appeals Chamber. There is a reason to have extensive finding --
12 fact-finding proceedings in a Trial Chamber, not to mention to preserves
13 the right of appeal, which I'll speak of at greater length in a few
15 The Rome treaty also provides for a retrial in Articles 83 and
16 84. Civil law countries provide for a retrial, we believe in these
17 circumstances such as the German Code of Criminal Procedure at section 354
18 which provides that if questions of fact are raised, that are significant
19 and material, the case should be remanded for a new trial. The UK
20 Criminal Appeals Act of -- Section 2, turning to the common law, similarly
21 provides that if a conviction is unsafe, the UK Appeals Court may either
22 acquit or order a retrial. Both the McNamee and Clegg cases, which I
23 think were cited by both parties, illustrate that proposition as well as
24 the quantum of new evidence to justify a remand for a new trial. We
25 submit that the quantum of new important exculpatory evidence already
1 admitted here in the case of these 50 items exceeds that discussed in both
2 of those cases.
3 Now, the Prosecutor raises an objection to this and he says, well,
4 but the evidence hasn't been tested, so it's premature. You can't act
5 because the evidence hasn't been tested. Well, what is the new evidence?
6 First of all, most, if not all of the new documents are from the
7 Croatian War Archives in Zagreb. They bear the stamp in the upper right
8 corner, that little circular stamp of the archives. The Kupreskic
9 Appellate Chamber already found that documents have an official source
10 such as that archive, those documents are -- have -- do bear the
11 reliability and credibility of documents coming from such an official
12 source. I hasten to conclude that if the Prosecution had any doubts that
13 any of the documents that bear the stamp of the archive that we have
14 submitted truly didn't come from the archive, you would have heard about
15 it a long time ago.
16 I also submit that Your Honours, as professional Judges, when you
17 look at new documents, you read statements from newly proffered witnesses,
18 and you see that this material is interlocking. It touches upon each
19 other. It corroborates each other in different ways; some very important
20 points, some minuscule points that no one would ever think of in trying,
21 if they were trying to fabricate something that as professional Judges.
22 You know it when you see it. You have a sense, having looked at these
23 materials, read these witness statements, is this something that somebody
24 has made up somewhere or is there a significant element of truth and
25 reality to it? If you are satisfied that there is that element of truth
1 and reality to it, then I submit it's been tested. It's been tested by
2 the experience and judgement of Your Honours.
3 So we believe the new evidence requires a retrial. We also
4 believe that a fair trial needs to be held, and a fair trial was not held
5 in this case. And that is an independent reason for a remand and for a
6 new trial.
7 First of all, two states acted affirmatively, acted to undermine
8 the accused defence. Article 29 of the Tribunal Statute requires states
9 to assist this Tribunal. That did not happen here in the case of Croatia
10 and Bosnia-Herzegovina. For example, the Trial Chamber, during the trial,
11 subpoenaed Bosnia-Herzegovina for the war diary of the Central Bosnia
12 Operative Zone HVO. The BH authorities did not produce it.
13 Later, everybody got it from the war archive; the Prosecutor got
14 it, and we got it, and it's very important. It confirms the absence of
15 illegal orders by the accused. It shows he had no knowledge of the elicit
16 clandestine meeting at Kordic's home on the night of April 15, 16 where
17 the massacre of Ahmici was planned, and it's useful for a number of other
18 exculpatory reasons. But what's important for the moment is the BH
19 authorities didn't provide this when it was subpoenaed by the Trial
20 Chamber, and that's not fair. Colonel Blaskic was entitled to have that
21 document here at his trial.
22 Similarly, the Prosecutor subpoenaed the Republic of Croatia for
23 HVO war records. We all believed they would be very relevant. Croatia
24 did not, in the main, produce those documents. They certainly did not
25 produce the documents that we are now able to tender to you from the
1 archives, and they did it to protect their President, Franjo Tudjman, who
2 had a hand in the dealings of the political leadership in Herzegovina,
3 that is the Bosnian Croats.
4 THE INTERPRETER: The interpreters are having trouble keeping up,
5 Your Honours.
6 MR. HAYMAN: I'm sorry.
7 So although Mr. Nobilo and I laboured hard and long to gather the
8 relevant documents for the defence of our client, we had two secret
9 services working against us, the Croatian SIS and the BH intelligence
10 service, and they obstructed the defence of our client, and that was not
12 The Prosecutor also withheld key exculpatory information from us.
13 In pursuing their case against Dario Kordic, they developed significant
14 material tending to show that Dario Kordic exercised military authority.
15 That material was exculpatory to Colonel Blaskic, and it was withheld.
16 Seven of the exhibits you have admitted are from the Kordic
17 trial. None were disclosed to the accused by the Prosecution prior to the
18 judgement. We had to go to the Registrar's office and dig them out
19 post-judgement. And what does that evidence go to? This is not
20 inconsequential evidence. They include testimony by a Lieutenant Colonel
21 in the US army, Floyd Carter, who testified in the Kordic proceedings that
22 the Jokers unit of the military police were instruments of the political
23 leadership of the Bosnian Croats.
24 Witness AD, whom I referenced earlier, the EC monitor testified
25 that Colonel Blaskic did not have effective control over the Kiseljak HVO
1 because he was isolated and separate from them; Mr. Breljas, whom I
2 mentioned; General Merdan, whom I think I mentioned, both testified in the
3 Kordic case. If we had been given their statements in a timely manner, we
4 believe we could have presented that important testimony to the Trial
5 Chamber, but we didn't get it. In fact, we haven't gotten their witness
6 statements to this day; the Prosecutor will not produce them.
7 The Prosecutor even used a chart adopted by General Merdan in that
8 case in which there are different boxes showing the chain of command of
9 the Bosnian Croats, and Colonel Blaskic is down here. He's on a line
10 below the Vitezovi, the military police, and the Kiseljak HVO. It is
11 represented on that chart that Colonel Blaskic did not command any of
12 those three elements, and they used that chart in the Kordic case to get a
13 conviction against Kordic and didn't produce it to us, so we couldn't use
14 it in our defence of our client. That was not fair.
15 Included in our book of authorities are various cases providing
16 that, in a situation where exculpatory information is withheld, a reversal
17 and a remand for a new trial is appropriate. I'm referring to the Kyles
18 case of the Supreme Court of the United States, and the Pelullo case. I
19 note also that that case law speaks to the question of: Do you evaluate
20 each piece of evidence in isolation when asking whether an accused's right
21 to a fair trial was undermined materially or do you evaluate the
22 cumulative effect of evidence that was improperly withheld? Kyles speaks
23 to it. It's the cumulative effect of the inappropriately withheld
24 evidence that should be weighed, and I submit it's persuasive. It's
25 obviously not an authority governing this Court, but we submit it is a
1 persuasive view.
2 And finally, a fair trial would have required and requires that
3 the accused had this body of helpful exculpatory information both from the
4 war archives and from the Prosecutor's files, and that we had it to
5 effectively examine and confront the witnesses that came forward to
6 testify against Colonel Blaskic. And I'll give you one example, if I
7 may. There was a witness who testified at the trial, a very nice man, an
8 EC monitor from a Scandinavian country by the name of Lars Baggesen. He
9 testified in this room on August 22nd, 1997. I was here. I remember it
11 Mr. Baggesen said among other things -- by the way, he spent three
12 months in Central Bosnia as an EC monitor. He gave an opinion that
13 Colonel Blaskic controlled the military police in Central Bosnia. And we
14 asked him: What is your basis for that conclusion? And he said, "Well, I
15 was once detained by the military police of the HVO and -- along with
16 General Merdan of the BH army, and after a phone call from Blaskic, I was
17 released. So they obviously followed Blaskic's order to release me so I
18 therefore conclude Blaskic controlled them."
19 Well, General Merdan, as I said, he testified in the Kordic case.
20 What did General Merdan say about this incident because he was there along
21 with the EC monitor, Mr. Baggesen. General Merdan, who spoke the language
22 and understood who was being said at least on the half of the phone
23 conversation that he overheard, he testified in Kordic that the military
24 police disregarded Blaskic's directive to release the EC monitor and
25 Merdan, and the military police said they were waiting to hear from
1 somebody else other than Blaskic.
2 So to have a fair trial, it's not just a couple of witnesses or
3 half a dozen witnesses or ten witnesses who need to be brought before this
4 Court. Witnesses like Mr. Baggesen need to come back because Mr. Baggesen
5 is going to recant his testimony. He's going to say, "I'm sorry, I didn't
6 understand what was being spoken on the phone. I reached the wrong
7 conclusion. I apologise." And there are lots of other witnesses who
8 testified, gave opinion testimony, which was relied
9 on very heavily by the Trial Chamber.
10 So lots and lots of those witnesses are going to need to come
11 back. And I'll turn in a moment to the question of should they come here
12 before Your Honours or should there be a new trial, a fair trial, which
13 then preserves the accused's right to have an appeal from the result of a
14 fair trial.
15 There's a third independent reason there should be a new trial,
16 and that is the efficient administration of justice requires it. I don't
17 agree with my learned colleague across the well concerning the volume of
18 new evidence that is going to need to be assessed in order for there to be
19 a proper and just proceeding in this case.
20 What do we have? We have the 50 new items Your Honours have
21 admitted. We have 100 or 200 more items that you have not yet ruled on.
22 We have items that the Prosecutor has given us that we're still reviewing
23 under Rule 68. It takes time. Some of them have to be translated and the
24 like. We have the 25.000 documents which they're still reviewing. That's
25 a subset of the 1.4 million pages of documents. Certainly we're going to
1 be seeing some more documents from that tranche of material.
2 We only in September this year gained access to the closed-session
3 material from the Lasva Valley cases that's filed in the Registrar's
4 office. We are still reviewing that for exculpatory material. We have
5 the two witnesses whose statements we've tendered and you have agreed to
6 hear. We have the Kordic witnesses I have referred to, Carter, Breljas,
7 Witness AD, et cetera. And we have key witnesses from the trial that
8 would need to come back and be given the opportunity to amend particularly
9 their opinion testimony concerning the chain of command in the Lasva
10 Valley with respect to the HVO. That's a lot of material. That's a lot
11 of witnesses.
12 Furthermore, for there to be a fair proceeding in this case, that
13 body of material must be weighed and considered in conjunction with the
14 trial evidence itself. We are not suggesting that the trial evidence be
15 disregarded. The Defence has a lot of confidence that there is a lot of
16 truth in the trial evidence despite the fact we didn't have the war
17 archives to draw upon. So in a fair proceeding, all that material, new
18 and old, must be weighed, considered, compared, and judged.
19 The trial was fairly long. I believe the Prosecutor had 75 days
20 of testimony, we had 60 days of testimony, and there are more than a
21 thousand exhibits. So there's a lot of material there to be weighed.
22 What is the most efficient and fairest process for that weighing
23 and synthesis to embody or constitute? We submit that it is a process,
24 and I'm not sure that the Prosecutor disagrees. It's not something Your
25 Honours can do back in your Chambers. You could stack up all the
1 transcripts and you could stack up all the documents, but they don't just
2 merge and spit out the truth. There has to be a process. There has to be
3 a process. And we submit that that's a process that involves adversarial
4 parties probing, pushing, pulling for the truth, examining and
5 cross-examining witnesses, showing witnesses documents. It's called a
6 trial. It's not called a Rule 115 hearing. It's not called taking the
7 matter under submission in Chambers. It is called a trial. And we are
8 going to need a new trial so that a trier of fact can analyse, sift
9 through, and hear this material and reach a just and fair and accurate
11 And as I said earlier, we submit that needs to be before a Trial
12 Chamber for the further reason that it will be such a substantial
13 proceeding that the accused's right of appeal needs to be protected. If
14 Your Honours hold some kind of a mini-trial or even maybe not a
15 mini-trial, it could be a six-month trial, where is the appeal? The
16 accused would have no right of appeal.
17 Now, we have a lot of confidence in Your Honours, so I'm not
18 suggesting that we are worried particularly on a practical level, but
19 still, we think the Tribunal Statute envisions if there's to be a
20 significant rehearing of the evidence, a new trial, call it a rehearing
21 for six months, call it a trial for six months, it needs to be done before
22 a Trial Chamber so that the right of appeal is preserved.
23 Now, I'd like to try and address two more topics in my remaining
24 time. Maybe it's only one, and that is -- no, it is two. A retrial is
25 required on all counts, and a retrial should occur before a newly
1 constituted Trial Chamber. But let's address first all counts.
2 The lack of procedural fairness in the first trial infects the
3 conviction as a whole. All counts of conviction were affected by that
4 lack of fairness. The fact that we did not have relevant documents from
5 two states but instead their intelligence services actively worked against
6 us, the fact that we did not have relevant exculpatory material from the
7 Prosecutor means that all counts should be set aside as to conviction.
8 Further, much of the new evidence goes to the proposition of
9 whether Colonel Blaskic had effective control over all HVO forces in the
10 Lasva Valley. And if you accept, as we believe you must, that there is
11 clearly reasonable doubt based on the old evidence and the new evidence,
12 indeed there's reasonable doubt based on the new evidence alone that
13 Colonel Blaskic did not have effective control over all such troops, then
14 proof of a specific act by him, something he did, an order he gave or some
15 other criminal omission is going to be required to convict him, because
16 the next -- at the next trial, the Trial Chamber is not going to be able
17 to assume he controlled everything done by the HVO on this terrain and
18 therefore, if something bad happened and it had an element of organisation
19 to it, he must have ordered it. That isn't going to work, we submit, at
20 the next trial, so that -- so this additional level or quantum of proof is
21 going to be required, and that infects every count.
22 If you look at the judgement, there are no counts where the Court
23 deviates from this effective control mode and says, "Here's an order where
24 Colonel Blaskic ordered an attack on a village, a criminal attack, an
25 attack on civilians." It's just not there. So we believe the effective
1 control evidence, that is the lack of effective control evidence, affects
2 all the counts.
3 Now, I see a chart tendered by my colleague, and I haven't had a
4 chance to really review it and respond. I -- my understanding was that
5 Your Honours did not want an advocacy submission. You wanted a book of
6 authorities and to hear our arguments orally, not to submit a brief in
7 argument or even an argumentative chart. If the Court wishes to consider
8 this argumentative chart, I would ask that we be given leave either to
9 submit a reply chart or to submit a written argument explaining why we
10 disagree with this chart, because I do disagree with this chart, but it
11 has too many details on too many different issues to respond verbally, at
12 least now. I may be able to do so in my rebuttal in a few minutes, but I
13 don't believe I can do so right now.
14 So I will turn to my last issue and then we'll still have some
15 time for questions. And that last issue is: Should a retrial be
16 conducted before the Trial Chamber that heard this case initially, or
17 should it be before a newly constituted Trial Chamber?
18 We believe a retrial should be held before a newly constituted
19 Trial Chamber, and I'd like to make very clear that this is in no way
20 based on any belief that the Trial Chamber in this case exhibited any bias
21 or inappropriate feeling or belief towards the Defence or towards
22 Colonel Blaskic. We have nothing but highest regard for the Trial Chamber
23 Judges. We believe the Trial Chamber erred principally because it didn't
24 have the most relevant information and evidence bearing on this case at
25 the time it was called upon to try the case and render a verdict.
1 In looking for what considerations the Court might review on this
2 issue, we found a case that we thought might be instructive, and it's a
3 United States called the Robin case, and we submitted it in our book of
4 authorities at tab 15, and it identifies three considerations to ask in
5 deciding whether a retrial should be before the old Judge or a new Judge.
6 And this again is at tab 15 of our submission.
7 Question number 1: Can the Court be reasonably expected to put
8 out of its mind prior conclusions or evidence that should be rejected or
10 I'll read the questions and then come back to them one at a time.
11 2. Would reassignment advance the appearance of justice?
12 And 3: Would reassignment entail a disproportionate waste or
13 duplication of resources?
14 I'll go back to the first. Could the old Trial Chamber be
15 reasonably expected to be able to put out of its mind erroneous
16 conclusions, testimony that may be amended by new witnesses or witnesses
17 that come back? We submit that that would be very difficult. Hundreds of
18 witnesses were heard. It's very difficult to keep it all straight. There
19 also will be testimony or transcripts from some witnesses in the Kordic
20 case. Some of the same witnesses testified in the Kordic case, et
21 cetera. So to the extent one purpose of a new trial is a fresh look at
22 the evidence, we think a new Trial Chamber could give the freshest look at
23 the evidence.
24 Secondly, we believe that assignment to a new Trial Chamber would
25 advance the appearance of justice, which is a good thing. It builds
1 respect for justice and for all courts and for this Tribunal.
2 And third, would reassignment entail a disproportionate waste or
3 duplication of resources? We submit it would not, because the original
4 Trial Chamber cannot be reconstituted. The members of that Trial Chamber
5 are not all still with the court. So by definition, the evidence must be
6 heard anew, we believe. And if one Judge needs to hear it anew, the whole
7 Trial Chamber is going to hear it anew.
8 We looked at civil and common law on this question, and we found
9 that civil law uniformly favours reassignment to a new trier of fact. The
10 German, French, and Italian Codes of Criminal Procedure all indicate this
11 at sections 354, 610 and 623 respectively.
12 With respect to common law authorities, we found authorities in
13 the United States. Specifically two of the Circuit Courts of Appeal have
14 written rules or published practices to remand complex criminal cases to a
15 new Judge, principally to promote the appearance of fairness and justice.
16 If I may have a moment to confer with my colleagues, and then I
17 would be pleased to entertain any questions.
18 [Defence counsel confer]
19 MR. HAYMAN: I have no further comments but would be pleased to
20 try and answer any questions you may have.
21 JUDGE POCAR: Thank you, Mr. Hayman. I turn to my colleague.
22 Judge Guney would like to ask you a question.
23 JUDGE GUNEY: Mr. Hayman, you emphasised on the effect that the
24 reporting authority was not Colonel Blaskic but the authority in Mostar.
25 And you conclude by saying that this proved clearly that Colonel Blaskic
1 had no effective authority to command and to control all the forces. What
2 I would like to be enlightened on is: Do you think that different
3 reporting authority gives enough basis in all cases to conclude that the
4 authority in command had no effective control? Thank you.
5 MR. HAYMAN: Thank you, Your Honour. Your Honour, I submit, and
6 this was our position at trial, that where you have multiple lines of
7 authority, for example -- well, let me illustrate with the military
8 police, the Jokers unit. They had a de jure line of reporting to the
9 military police administration in Mostar. They were told under the
10 military police law they also reported to Colonel Blaskic for their daily
11 policing activities. So they had a dotted line, if you will to
12 General Blaskic. And then we also believe, and we believe that the
13 evidence we have been submitting and bringing to your attention also
14 indicates that they had a de facto command relationship with Dario
16 So as to the Jokers and the military police, you really have three
17 lines of command, three different lines of entities that had the ability
18 to control the Jokers in at least some respects, although Colonel
19 Blaskic's line was limited to daily policing activities but for any
20 attachment or subordination, resubordination of the unit. That does not
21 mean that it is impossible that Colonel Blaskic had effective control of
22 that unit at any particular time.
23 We do not maintain that. What we maintain is that if you have
24 three lines, then what the Trial Chamber did is impermissible. You cannot
25 assume that there's only one line and assume that anything they do is at
1 the direction of the holder of the first line. You have to look at the
2 facts, look at what happened, look at what was ordered, look at what was
3 reported, who knew what to figure out if that unit committed a crime.
4 Did they do it on their own initiative? Did they do it on the
5 orders of Dario Kordic? Did they do it on the orders of the police
6 administration in Mostar or did they do it on the orders of the Colonel
7 Blaskic assuming, at that point in time, the unit was attached or
8 subordinated to Colonel Blaskic? That is all we are maintaining. That
9 you have to look at the specifics, you cannot assume away two out of the
10 three potential lines of command.
11 JUDGE POCAR: Judge Gunawardana, please.
12 JUDGE GUNAWARDANA: The Prosecutor submitted that you are seeking
13 a retrial on the basis of untested evidence.
14 MR. HAYMAN: Pardon me?
15 JUDGE GUNAWARDANA: The Prosecutor submitted that you are seeking
16 a retrial on the basis untested evidence. What liability do you attach to
17 the items of evidence that you are relying on for asking for a retrial?
18 MR. HAYMAN: The documents, Your Honour, for the most part - and I
19 haven't looked at every one, I can do that before the rebuttal period -
20 are in the main from a military archive. Documents in a military archive
21 are akin to documents created in the ordinary course of business so they
22 have a certain inherent reliability, but you do have to look at the
23 document and see where did the information come from.
24 Where you have a war diary, that is something that a secretary is
25 writing down minute by minute, based on the best information that they are
1 hearing. If you have an intelligence report, you look at it and
2 determine, well, what did they do? Do they know who they interviewed?
3 Does it say on the face of the report where it came from?
4 We submit that the documents in the main -- they are from an
5 official archive. The Prosecutor has drawn upon them for other
6 prosecutions. They are not going to stand up and say: We think these are
7 documents that were not contemporaneously created during the civil war.
8 They cannot do that. They are using these documents themselves in various
10 As for the witnesses that the Prosecutor called that we want to
11 use in the Kordic case, Mr. Breljas, (redacted),
12 these are those witnesses. I don't think they are going to tell you in
13 the rebuttal period that they think those witnesses lack credibility or
14 lack reliability. They found them sufficiently credible and reliable to
15 present them on their own behalf in the Kordic case.
16 And further, we have two witnesses which, as you know, Your
17 Honours have indicated a willingness to hear their evidence. They
18 submitted a sworn statement. At least one of the statements is
19 self-inculpatory. It is a statement against interest which, in the
20 system, the legal system I'm most familiar with where you make a statement
21 against interest, it has some additional element of credibility.
22 And then lastly, I would submit that Your Honours are receiving
23 information, new evidence, from the many different sources and that if you
24 can undertake a rough collation and comparison of that information, you
25 will find, for example, that the testimony given by these witnesses in
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Kordic that we would like to introduce, the testimony by the two new
2 witnesses we would like to bring before the trier of fact, and the
3 documents from the archive, they are all speaking essentially the same
4 message so that there is an element of corroboration within the new
5 evidence. Those are the ways in which we submit either they are tested or
6 can be tested.
7 JUDGE GUNAWARDANA: So you would be leading evidence to establish
8 the authenticity of the documents?
9 MR. HAYMAN: The -- well, the documents, at least in the main,
10 they are from an official archive. We can bring a custodian from the
11 archive, just as the Prosecutor can, so I don't think it's in dispute that
12 they are official documents from the archive.
13 The witnesses are a different matter. Witnesses need to testify
14 and be sworn and be subject to cross-examination, but I don't think the
15 Prosecutor feels they need to be tested now before Your Honours make any
16 decision. We're simply saying witnesses should be tested and subject to
17 cross-examination. But you already know enough, you have enough to
18 conclude that there needs to be a retrial in this case, and since you know
19 that, you should act.
20 JUDGE GUNAWARDANA: Thank you.
21 MR. HAYMAN: Thank you.
22 JUDGE POCAR: Judge Hunt.
23 JUDGE HUNT: Mr. Hayman, one of the factors we have to consider is,
24 you acknowledged in that case from the United States that you cited, is
25 the waste of resources that would be involved in a completely new trial.
1 The length of the first trial is a rather alarming factor in that. The
2 length of the first trial, for whatever reasons that existed which caused
3 it, nevertheless leave me to ask you: Would the accused on this occasion
4 be prepared to accept a great deal of the evidence which doesn't -- which
5 isn't affected by these documents but could be just led by the tender of
6 the transcripts?
7 MR. HAYMAN: Of course I need to speak to him on that question,
8 Your Honour, but I would expect that a considerable amount of the
9 testimony could be accepted on the transcripts. For example, we spent
10 almost the first year in trial hearing from victims in different villages
11 including survivors of the Ahmici massacre and they testified -- 98 per
12 cent, 99 per cent of their testimony was uncontroverted.
13 So I think there is a significant amount of testimony that could
14 be accepted based on the transcript; however, I also think that the
15 important testimony in the case is not the victim testimony. Villages
16 were burned, civilians died in Ahmici. The important testimony are the
17 individuals who had dealings with Colonel Blaskic and the members of the
18 International Community that gave opinion testimony about the chain of
19 command within the HVO, and those witnesses all have to come back and be
20 retested with the new evidence. Whether that means the trial will be half
21 as long or two thirds as long or one-third as long, I don't know, but I
22 would note, although we went on for 24 months, there were only 135 days of
23 trial. So -- and we only had one courtroom for much of the early period,
24 and that's why we got one week of trial per month and so forth.
25 So I hope that's somewhat responsive to Your Honour's question.
1 JUDGE HUNT: Well it is, but you can understand why I ask, I
2 think. There was, if I may say so, an element of gamesmanship in a lot of
3 the trial that appears, even from a brief association with having read
4 some of the material in it. The Defence, for example, was not revealed
5 until almost, I think, when your client began to give evidence, the nature
6 of the defence, the general nature of the defence, and it seems to me that
7 if there were to be a new trial, there would have to be some fairly strict
8 conditions laid.
9 I personally would accept the qualifications you gave to your
10 answer, but for the year, the whole year of victims' evidence, that should
11 never be repeated. Now, you do understand that there would have to be
12 some sort of a condition laid on a new trial that all of that evidence
13 would have to be admitted, the transcript of it, or the findings by the
14 first Trial Chamber subject to any particular things that you want to
15 raise. And that would be for the new Trial Chamber to decide whether you
16 should be entitled to have those witnesses recalled.
17 MR. HAYMAN: I agree completely, Your Honour, and I also believe
18 that if a new trial is ordered, the Defence will sit down with the
19 Prosecution - some of us in this room have been working on this case since
20 1996, it probably shows in our faces - we will sit down and have a heart
21 to heart about how we can try this case in somewhere between three and six
22 months and get it done. What can be reduced to a stipulation, what
23 testimony can be simply admitted and perhaps summarised so that the Court
24 doesn't have to read stacks and stacks of repetitive material. But I
25 think there will be a spirit of trying to get it -- to get it done in the
1 most efficient way possible simply because this case has gone on so long
2 and it's taken such a big chunk out of the accused's life as well as
3 counsel's lives, professional lives.
4 JUDGE HUNT: Thank you.
5 JUDGE POCAR: Thank you. Well, I think this concludes this part
6 of the hearing. We can break now for -- resume at ten to 6.00, I would
7 say. Quarter to 6.00, quarter to 6.00 then.
8 --- Recess taken at 5.22 p.m.
9 --- On resuming at 5.48 p.m.
10 JUDGE POCAR: Well, we heard the presentation of the parties. We
11 can now hear the replies. I will give the floor to the Prosecution for
12 30 minutes.
13 MR. FARRELL: Thank you, Your Honour, Judge Pocar. Your Honours,
14 good afternoon.
15 Let me start by making one general observation. I have yet to
16 hear where the error is that would warrant a new trial. I may have been
17 mistaken in the submissions by my learned colleague, but I have not yet
18 heard where the Trial Chamber erred or where the evidence and facts before
19 you results in an objectively found incorrectness of facts as required by
21 With respect, the requirements of the jurisprudence of this
22 Tribunal and of the procedural law of this Tribunal cannot be circumvented
23 simply because of the extensive nature of the document. The specific law
24 of this Tribunal requires, as said in Kupreskic, the hearing, testing of
25 the evidence, and a determination whether or not it affects it to the
1 point where the test is that no reasonable tribunal of fact, on the basis
2 all the evidence, could have rendered the decision it did.
3 If this Chamber is hearing a motion on misconduct, which is that
4 now you should grant a new trial because the appellant didn't have it at
5 the time, that is a separate issue and is not subject to the Rule 115
6 standard and is not before you on the basis of the Rule 115 application.
7 If we're going to change in midstream on this issue, the
8 Prosecution submits that you should at least hear the arguments which will
9 come before you on the appeal proper on this issue.
10 The three apparent arguments encompassed, of course -- and my
11 learned colleague made a number of arguments. I'm just addressing these
12 ones. The three apparent arguments which support this allegation of
13 misconduct or the hiding of documents which would warrant intervention at
14 this stage is essentially a ground of appeal, in my respectful
15 submission. This is not a determination of the 115 application stage.
16 He, first of all, says the ABiH archives were withheld from him
17 despite his intention and his actions. I'm sure you're aware that the
18 ABiH archives were not received by the Prosecution until months after his
19 trial concluded. There's no misconduct which he's insinuating in relation
20 to the ABiH archives. There's no basis for claiming that that -- those
21 actions are such that this Court should take the severe step and warrant a
22 new trial on that basis without looking at the evidence and testing it.
23 The ABiH archives, which were discovered by the Prosecution in the
24 fall of 2000, were immediately disclosed as required which the Rules. I
25 would note that none, and I would like to reinforce that, none of the
1 documents admitted by this Court come from the ABiH archives. Of the
2 47 documents, there are none that originate from that archive. So what
3 you have is you have a plea from the appellant based on no demonstration
4 of misconduct, something he can raise on the appeal proper, and no
5 documents before you from that archive.
6 Secondly, the Croatian archives. There's been extensive
7 litigation on the availability, and I will refrain from any comment on
8 that. The only thing I would note is that the allegation now that there
9 was the attempt by the Prosecution to proceed without all the evidence is,
10 quite respectfully, irrelevant. If there's sufficient evidence to confirm
11 this, there was, and if there's sufficient evidence to convict, and there
12 was, the issue now can be resolved through the 115 process.
13 The Defence at trial never once brought a motion seeking for
14 access to the Croatian archives. The Prosecution brought many and never
15 once did they join in the Prosecution in claiming that they were not
16 getting access and asking for a subpoena or a court order to the State of
17 Croatia for documents. If they wish to make some argument now, they can
18 make it in the appeal, but this allegation is, quite frankly, of limited
20 Lastly, they allege that the Prosecution has withheld evidence,
21 and they cite, I think it's three examples. This is and can be part of
22 their appeal. It's not even been demonstrated that these allegations are
23 true or the evidence itself is such that it would have affected the
24 verdict. On that basis alone, I would submit that the Court should not be
25 using that as a basis prior to the argument of the appeal and a
1 determination by this Appeals Chamber on the appeal on that issue as a
2 basis for warranting a new trial.
3 Regarding some of the comments with respect to the evidence, I
4 won't go through it in any depth. Regarding the documents that I referred
5 to, the Vitezovi documents, the specific documents that the commander of
6 the Vitezovi said he was under Blaskic's orders at the material time, the
7 Defence say when you look at all these documents, you'll see that Blaskic
8 was actually not copied on any of them. Well, the three he's referring to
9 are the ones at trial.
10 The three that the Prosecution has presented today has a Blaskic
11 order to the Vitezovi -- well, it's issued by Blaskic. There's no need
12 that he's copied. Another is a report by Blaskic to the Main Staff about
13 the Vitezovi. Well, the copying issue is irrelevant. And the third is a
14 report by Kraljevic to the Main Staff where he says he's under Blaskic's
15 orders. With respect, the allegation that's been made is unfounded.
16 My learned colleague made reference to Rajic, this is in the
17 additional material, it's at the end of the material, and said that this
18 was a demonstration that they were cut off and Rajic was reporting
19 directly to Mostar.
20 If you remember the documents that were admitted by the Appeals
21 Chamber about Rajic, they relate specifically to correspondence between
22 Rajic and Mostar regarding the XY side; the XY side is the Serb side. It
23 relates to the issue of whether or not they can get logistics from the
24 Serb side and whether or not the -- they can get members from a Croatian
25 area through into -- through a Serb area and into a Croatian area.
1 Well, if you look at the two documents that are submitted in the
2 material, Blaskic wrote the order, the request to the Main Staff for that
3 specific issue and said that because this is at the high level between the
4 senior staff of the Serb army and the senior staff of the HVO army, it has
5 to be dealt with at that level, and he specifically requests that the Main
6 Staff of Mostar deal with it.
7 Secondly, Blaskic is cut off. He doesn't have access to the Serb
8 area. Rajic does. You'll also see in the material that's been filed that
9 there is a second document in which Blaskic is involved in the
10 correspondence by Rajic to the Main Staff on this very issue. The rest of
11 the documents, in my submission, really are not sufficient to warrant a
12 new trial, and don't demonstrate the proposition for which they've been
13 put forward.
14 The appellant's counsel refers to the fact that the Prosecution
15 seems to be continually trying to implicate Cerkez in the Ahmici crimes
16 and that the Trial Chamber in Kordic and Cerkez found that the Vitezovi
17 was not there. Well, first of all the documents we presented before you
18 were not before that Trial Chamber. And secondly, if my learned colleague
19 is happy to rely on the findings of the Kordic Trial Chamber, I'm happy to
20 rely on the findings that say that Blaskic was involved and was
21 responsible for Ahmici, and I'm happy to rely on the findings that say
22 that the defensive orders issued by Blaskic were a smokescreen, and I'm
23 happy to find that he was working in concert with Mr. Kordic throughout
24 the whole time.
25 Regarding his claims about the war diary in relation to the Vitez
1 Brigade, he claims that there's nothing in the war diary about the Vitez
2 Brigade in Ahmici. Well, it's hard to imagine that this Court would order
3 a new trial on that issue on the basis of something that isn't there.
4 More importantly, if you look at the war diary, and you look at the orders
5 I presented earlier today to you, one of the orders is at 2.00 asking that
6 Cerkez report back. If you look at the war diary, there is an entry at
7 1355 asking Cerkez to contact Blaskic. There's also an entry between two
8 of the orders asking Cerkez, or Cerkez contacting Blaskic and reporting
9 the situation on the field. In light of those orders, it's quite clear
10 what he's reporting.
11 The appellant refers to the MUP report. Now, quite frankly, I
12 find this somewhat difficult to comprehend. The part that appellant's
13 counsel specifically refers to is that there was a clandestine meeting at
14 the home of Dario Kordic where the decision was made to kill those persons
15 in Ahmici. Now, unless I'm mistaken - and I'm more than willing to be
16 corrected on this - there is no independent evidence in the admitted
17 documents of that. In fact, if you look at the MUP report, that passage
18 comes from an interview by Defence counsel, Anto Nobilo.
19 I find it astounding that they would rely on a Defence counsel
20 interview a long time after the events who said what happened as the basis
21 for claiming that in fact there was this meeting unless, of course,
22 Mr. Nobilo wants to get in the witness box and explain that to us. Other
23 than that, I think the MUP report is of limited value, to say the least.
24 In his submissions related to what is the fairest way or the most
25 efficient way to deal with this, he goes on and on about the trial and the
1 length of the trial and the issues to be resolved if there is a new trial,
2 and the fact that he's willing to make concessions and that certain
3 witnesses don't need to be tried -- don't need to be brought, excuse me.
4 The issue before you today, in my respectful submission, is what
5 to do with the additional evidence. This Appeals Chamber has the
6 authority to remit the matter back to a Trial Chamber if it decides that
7 it's not in a position to deal with the additional evidence. It does not
8 order a new trial. There's -- as I've stressed, the merging of the
9 admissibility standard with the standard for a new trial, in my
10 submission, would be an incorrect way to proceed.
11 The Kupreskic judgement permits you the authority to remand it to
12 a Trial Chamber for the specific issue and, with respect, I can't accept
13 the submissions by my learned colleague when he indicates that paragraph
14 70 of the Kupreskic judgement stands for the proposition that you can send
15 it back for a new trial. If you're at all uncertain of that, I'll just
16 point out again that the passage reads, "But in the more likely case that
17 the opposing party challenges the voracity of the additional evidence, the
18 Appeals Chamber is faced with a choice, either it can test the evidence
19 itself to determine voracity, or order the case to be remitted to a Trial
20 Chamber to hear the new evidence." I don't think it's equivocal.
21 At one point in time, my learned colleague indicates that in
22 response to, I think, Judge Guney's question, relation to the lines of
23 authority, he says when there's different lines of authorities, for
24 example, to the Jokers. You cannot assume that because there's different
25 lines of authority that the one eventually leads to Blaskic. He says you
1 must look at all the facts. Well, I would respectfully agree. I think
2 you should look at all the facts and that includes the facts that the
3 Prosecution has presented to you and the facts which we would present on
4 this issue and the testing of the evidence.
5 This case is not about Ahmici, though there's been much to say
6 about this. This case relates to conduct over 14 months, many counts, and
7 many different geographical locations, and it's the Prosecution's
8 submission that many of the counts are not affected by the new evidence.
9 And the chart has been given to you if you wish submissions, of course, by
10 counsel for the appellant and by the Prosecution; we'd be pleased to
11 provide them.
12 I've certainly been called argumentative before, but never has any
13 paper that I've presented to a court been called that. But if it is an
14 argumentative chart, we would certainly be willing to make arguments on
15 what counts are not affected.
16 Part of the basis for the argument of the appellant that the
17 evidence affects all counts is that the evidence goes to his effective
18 control over all the forces in the HVO. I just bring to your attention
19 one count, the count relating to Grbavica, which is the destruction or
20 plunder of property under Counts 11 to 13. Under Counts 11 to 13, one of
21 the counts in the Vitez municipality in September of 1993 is a place
22 called Grbavica. The Trial Chamber convicted the appellant for the attack
23 on Grbavica for the following reasons: The forces he used to participate
24 in the attack were selected by him personally. This is -- I'm taking this
25 from the judgement, Your Honours.
1 "He personally, himself, participated in the attack. The units
2 that participated in the attack were directly subordinate to him as was
3 testified by one of the witnesses, it was the Jokers and the military
4 police. The head of the military police by September was not Mr. Ljubicic
5 but was a hand-picked commander, hand-picked by Blaskic who testified at
6 trial and who indicated he was operating directly under Blaskic."
7 The Trial Chamber found that his direct involvement in the attacks
8 themselves were criminal. There is no new evidence which has anything to
9 do with this count. And with respect, if the Court is seriously
10 considering the -- my learned colleague's submissions, I would submit that
11 you should consider the submissions by the parties on this issue and look
12 hard at the issue of whether or not everything is truly affected.
13 The Defence has conceded that it gives great deference to the
14 Trial Chamber's findings and that, of course, it doesn't dispute many of
15 the factual findings as found. That may be the case, but if we proceed to
16 the appeal proper, I'd ask him to tell me whether he's going to continue
17 in that vein in light of the fact that the appellant has challenged every
18 single factual finding in the judgement. They've even challenged whether
19 or not the number of victims in Ahmici are correct. With respect, you
20 can't have it both ways.
21 The main issue, one of the main issues, which may concern the
22 Court is the scope and breadth of the material and the ability to hear
23 this issue. With respect, there's a difference between a new trial where
24 all these witnesses will be brought, some will have to be tested again,
25 and the limited issue before you which is: Do the documents and the two
1 witnesses warrant overturning a judgement of this length and magnitude?
2 The issue is whether or not on the basis of the complete evidence
3 to allow you to make an informed decision this should result in a new
4 trial. The way to be informed of this is by -- of course the Appeals
5 Chamber has the authority to do it or to provide it to a Trial Chamber for
6 the single issue of the new evidence. That, I respectfully submit, is
7 much different than the new trial which is being considered.
8 On the additional evidence hearing, what is tested is the veracity
9 of the witnesses or anything that goes to the impact of their testimony on
10 the judgement. That is a very narrow matter, and it's very specific and
11 has been limited by this Chamber in both Kupreskic, Musema, and Kambanda.
12 At the end of the day, the appellant seems to merge two
13 submissions. One, that the alleged misconduct or the failure to receive
14 the documents somehow warrants a new trial and that the untested evidence
15 presented to you from one side only warrants a new trial. I think my
16 submission is fairly clear on both of those. The misconduct issue has not
17 been determined by this Court, and with respect, with the exception of the
18 Croatian archives, the other two issues are not something that is before
19 you or can be determined.
20 With respect to the second issue, I've already made submissions
21 and attempted to inform this Court of why it does not have the authority
22 at this stage under its own law; and secondly, if it does, why it should
23 be so careful to proceed on a one-sided basis of the evidence.
24 Subject to any questions, those are the submissions on behalf of
25 the Prosecution for the purposes of this hearing.
1 JUDGE POCAR: Thank you, Mr. Farrell.
2 Judge Meron.
3 JUDGE MERON: Thank you, President Pocar.
4 I congratulate you --
5 THE INTERPRETER: Microphone, please.
6 JUDGE MERON: Simply to repeat that I wanted to start by
7 congratulating both you and Mr. Hayman for your very professional argument
9 Two questions to you. The first one, you will recall that
10 Mr. Hayman mentioned today some 25.000 pages of additional material which
11 needs to be disclosed. Could you enlighten us on that a little bit? What
12 is the state of that? Is that figure more or less -- does it correspond
13 to it? Then I will have another question. Please go ahead.
14 MR. FARRELL: Thank you, Your Honour. The Prosecution, pursuant
15 to its ongoing disclosure obligations, is reviewing material that has come
16 in. The material that has come in could potentially include 25.000
17 documents that could be relevant. Sure, some of the panel is fully
18 conversant in the procedures adopted by the Prosecution, but the initial
19 search is simply a general search where you put in names of individuals,
20 names of places, and it just -- what it does is it permits the team that's
21 searching to pull out all documents that could potentially have some
22 relevance, but the relevancy criteria are so broad that it would be
23 anything related to Central Bosnia. So that is just the first step to
24 take from that large pool of evidence the evidence that could potentially
25 be relevant. There's no basis for claiming that this is going to be
1 disclosed. It's just -- was for the purposes of the Court to understand
2 the steps that we were taking and how long it would be before we could
3 actually determine whether any of it was Rule 68.
4 So, yes, there are 25.000 pages that could potentially be
5 relevant. At this stage, it's just part of the process and certainly
6 doesn't support the inference that they will all be disclosed.
7 JUDGE MERON: So how does this -- where do we stand on proceeding
8 with the case then?
9 MR. FARRELL: Sorry. On that, the original report, status report
10 provided to the Pre-Appeal Judge was that it would take -- it was about a
11 month ago, was that it would take about three months to review this
12 material and disclose it. In light of our other disclosure obligations in
13 other cases that may be pushed off a bit, but that was the original time
14 period, Your Honour.
15 JUDGE MERON: Thank you. My second question is this: You have
16 stressed in your argument today the need for the admitted new evidence to
17 be tested, and I would benefit from your clarification. What would
18 testing involved in the case of such documents of evidence apart from
19 considering any documents that you may tender in rebuttal?
20 MR. FARRELL: Yes. Thank you. In relation to the documentary
21 evidence, it would be -- yes, it would be one of two things. If there are
22 any witnesses who have specific knowledge about those documents and who
23 can testify to them; and secondly, any documents in rebuttal or documents
24 which clarify. And then, of course, the argument would be simply whether
25 or not one of the documents is consistent with the other, which in the
1 Prosecution's system is something that makes no distinction between this
2 Appeals Chamber and the Trial Chamber. Both can do it and both have done
3 it, so it certainly doesn't require a new trial for practical purposes
4 except for the length of time it will take, of course.
5 JUDGE MERON: Thank you.
6 MR. FARRELL: Thank you, Your Honour.
7 JUDGE POCAR: Thank you, but in this connection, if you had to
8 submit evidence in rebuttal to this Appeals Chamber, how much time would
9 you require for that? Taking in account the 25.000 documents, of course,
10 but apart from that, apart from this three months.
11 MR. FARRELL: On the issue of these, of course the 25.000 have to
12 be disclosed and my learn colleague has the right to review them. These,
13 I suspect it would take - I don't know - three to four weeks. I think
14 that it would take a -- I'm not sure. A month, a month and a half to put
15 it. It wouldn't take that long. The material's been collected for the
16 purpose of this argument -- most of it anyway.
17 JUDGE POCAR: Thank you. Judge Hunt, please.
18 JUDGE HUNT: I want to take you up on your reference to Kupreskic
19 and the test that was ultimately applied in that case. I think it was --
20 I haven't got it in front of me, and I think it was no reasonable trier of
21 fact could have acquitted in the light of this additional evidence.
22 MR. FARRELL: That's correct.
23 JUDGE HUNT: That was indeed the test which was applied, but
24 you'll notice that the judgement suffered a slight sea-change along the
25 way, because at a different part of the judgement it talked about a
1 different test. It compared the "could" affect the verdict or the
2 findings of fact for the admissibility against "would" have affected the
3 findings. The second one, the "would," being the proper test for
4 determining whether there should be a new trial or an acquittal or
5 whatever. And I wouldn't like you to think that that test which was
6 applied in Kupreskic is one of universal application. It was appropriate
7 in that case. But it surely is one about sufficiently of evidence. And
8 despite all searches that have been made so far, it hasn't been
9 demonstrated that this is a matter which was the subject of any
10 submissions by the parties before the Appeals Chamber.
11 MR. FARRELL: Excuse me. I'm sorry, Your Honour, I didn't --
12 despite searches so far, I'm sorry, I didn't understand that.
13 JUDGE HUNT: Nobody has discovered that the test that was
14 ultimately applied was the subject of any of submissions by the parties
15 before that Appeals Chamber.
16 MR. FARRELL: I may be missing the point and I apologise, but if
17 what you're indicating is that no one submitted that that was the test to
18 be applied --
19 JUDGE HUNT: That's right.
20 MR. FARRELL: -- I think that's probably correct.
21 JUDGE HUNT: And I don't want you to think that it's going to stay
22 as some sort of ultimate universal test.
23 MR. FARRELL: Well --
24 JUDGE HUNT: It's a very extraordinary one to say the least of
25 it. It would make any party seeking to produce additional evidence -- I'm
1 sorry. Once they got it in, it would make it impossible for that party to
2 proceed in most cases, and that surely is not just.
3 MR. FARRELL: Well, if I may, Your Honour, this was litigated,
4 this very issue. In fact, Mr. Clegg, counsel for Josipovic made that very
5 argument that you're making now that it should not be a high standard,
6 that it would not result in fairness to an accused who had to meet the
7 high standard of a "would," which is the equivalent of this.
8 JUDGE HUNT: No, it is not. That's the point. I'm sorry to
9 interrupt, but that's the difference. To say it would have affected is
10 not the same as saying that no reasonable trier of fact would have
11 acquitted. That's putting it very much higher.
12 MR. FARRELL: If that's your submission, then let me respond --
13 JUDGE HUNT: It's not my submission. It's my suggestion.
14 MR. FARRELL: Sorry. I'll make submissions, Your Honour,
15 obviously, and I'm happy to hear your suggestions.
16 With respect, this issue was litigated, and the Court did hear --
17 excepting your suggestion, but the Court did hear this and did hear the
18 distinctions between "would" and "could" and did hear the argument that it
19 should be "would" but still decided to apply this test. And with respect,
20 the reason they did - and this is my reading of the judgement - is that as
21 indicated in the decision, it says that it is trying to reconcile the test
22 not with national jurisdictions but what would be applicable under the
23 rules and practice of this Tribunal. And it also tried to reconcile it
24 with Article 25 of the Statute where they have to make a finding of an
25 error of fact.
1 So at the end of the day, yes, what the Appeals Chamber did was it
2 did decide that this was the appropriate test because it considers the
3 evidence itself. It looks at the evidence, it hears it, and it puts it in
4 the pool with all the rest of the evidence. It's then generally in a
5 position to look at all that evidence and make a determination of
6 unreasonableness of the verdict based on all the evidence, that which was
7 before the Court and that which was not and has been heard and has placed
8 in that pool.
9 The purpose of doing that is it results in a consistency in
10 approach in this jurisprudence as to what the standard is under
11 Article 25, which is an error of fact results in a miscarriage of
12 justice. The error of fact in this jurisprudence is one of essentially
13 reasonableness of the verdict on a change of this magnitude, and the Court
14 attempts to actually reconcile those very difficult issues in relation to
15 Article 25.
16 The Court has held in Tadic and in Kupreskic that you have to
17 reach a standard under Article 25 before you can send it back under
18 Rule 117. It doesn't say it could or it would or it might and then you
19 send it back under Rule 117, and that's what the Court was trying to
20 reconcile here. And it did result in this test, albeit very high, but
21 this is the test that has been enunciated by the Appeals Chamber.
22 And if this is not the test, then of course this Court needs
23 cogent reasons to change the test. And if the Court determines that this
24 test needs to be changed and that the Court has to determine whether there
25 are circumstances under which a new trial is warranted, with respect, it
1 doesn't mean that the proceedings, the procedural law as established in
2 Kupreskic, goes out the window as well, the procedural law being that it
3 has to be tested before you can make the ultimate determination. The only
4 reference to support your suggestion, Your Honour, that one could find in
5 the Kupreskic judgement is when the Appeals Chamber, and it's in paragraph
6 69, when the Appeals Chamber considers the change from "could" to another
8 In paragraph 69 it says, "The Appeals Chamber considers this
9 change from the earlier Tadic formulation as more as a matter of timing
10 than substance."
11 The "would probably" standard is still basically appropriate for a
12 miscarriage of justice has occurred requiring a reversal which supports
13 your suggestion. The Court then goes on, and after considering that,
14 comes to the decision as to what the test is.
15 JUDGE HUNT: Mr. Farrell, both Tadic and Kupreskic went ahead to
16 say that the Appeals Chamber decided that it would retry the facts, in
18 MR. FARRELL: In Musema, yes, and Kambanda.
19 JUDGE HUNT: And you've conceded and said several times it could
20 be sent back for a new trial.
21 MR. FARRELL: No, I'm sorry if I have not made myself clear, it
22 cannot be sent back for a trial. Kupreskic says it can be sent back for a
23 trial on new evidence, for a determination on that matter alone.
24 JUDGE HUNT: That's taking Kupreskic far beyond what the expressed
25 words say, surely. What they're saying is that if they are going to try
1 it, then that has to be the situation, but there is nothing in Kupreskic
2 which denies the power of the Appeals Chamber under Rule 117 to say that
3 it would be more appropriate for there to be a complete new trial.
4 Now, wait a minute before you go on and repeat what you've said,
5 let's concede for the moment that testing and all the rest of it has to go
6 on before a new trial is ordered by a fresh Trial Chamber. That what you
7 are now saying - I don't think you will find it expressly in Kupreskic -
8 is that the Appeals Chamber has no power ever to send it back for a new
9 trial by reason of the fresh evidence so that you may find that every
10 witness has to be recalled before the Appeals Chamber.
11 MR. FARRELL: The structure of the -- I appreciate your comments,
12 suggestions, Your Honour. The structure of the test in Kupreskic, in my
13 respectful submission, has four stages: The first is the admissibility
14 stage; the second is the testing of the evidence; the third is the factual
15 finding stage by the Appeals Chamber, let's just take the simple example
16 of the Appeals Chamber, and then the application of the test. The
17 admissibility stage, the testing, and then the factual finding which is
18 the third one.
19 Now, in the simple cases, the Court can do those factual findings
20 itself; Musema, the other cases, Kupreskic, though not a simple case but
21 on this scenario, let's say the simple cases. It's only, in my
22 submission, in those circumstances where that factual finding cannot be
23 made after the testing of the evidence by the Appeals Chamber or a Chamber
24 for which it's been remitted because of credibility conflict that you're
25 then not in a position to apply the test, you're not in a position to
1 reach the last of the four steps, and that's where you can order a new
2 trial. But not, on this test, simply at the admissibility stage, clearly
3 not. And it's -- anyway, you are --
4 JUDGE HUNT: I'm not suggesting that it was, and I thought I'd
5 made that very clear. What I'm saying is that there's nothing in
6 Kupreskic which would prevent this Appeals Chamber ordering a complete new
7 trial. Now you've told me that that's wrong. Whereabouts in the
8 judgement does it say that expressly?
9 THE INTERPRETER: May we appeal to the speakers to slow down,
11 JUDGE HUNT: I'm sorry. We're both being punished.
12 MR. FARRELL: My apologies.
13 I accept your comment. My submission, which you're fully aware
14 of, is when you consider that these very arguments were made, when you
15 consider that this issue was before the Court, when you consider that they
16 could have ordered a retrial on this matter, and when confronted with the
17 credibility issue, they said they had two choices, test it or remit it for
18 hearing on the new evidence. It's my submission that you may be able to
19 make the argument that it doesn't specifically deny it, but it doesn't
20 permit it on the admissibility stage.
21 JUDGE HUNT: Thank you.
22 MR. FARRELL: Thank you very much, Your Honour.
23 JUDGE POCAR: Judge Gunawardana.
24 JUDGE GUNAWARDANA: Do you concede that the 47 exhibits and the
25 two witnesses that Defence is seeking to call the evidence of those
1 documents and the witness are admissible?
2 MR. FARRELL: Admissible? Well, we've argued the admissibility
3 stage already and the Prosecution has lost on those, so we concede that
4 they are admissible at the very low threshold in relation to Rule 115.
5 I may be misunderstanding your question, I'm sorry, but for the 47
6 and the two, I think we're bound by the Court ruling and they are
7 admissible for the purposes under Rule 115 on that limited basis, yes.
8 JUDGE GUNAWARDANA: If that is so, is it safe to leave the
9 verdict -- is it safe to leave the verdict unchallenged? On this
10 evidence admitted, is it safe to leave the conviction unchallenged?
11 MR. FARRELL: Absolutely. The Court in Kupreskic and Musema,
12 Kambanda did not find that once the documents were admissible, that the
13 findings were even challenged.
14 JUDGE GUNAWARDANA: So by sending it back for retrial, it is the
15 review of the verdict that is being looked into, no?
16 MR. FARRELL: Yes, I think so. I think that's, at this stage, not
17 either permissible or appropriate.
18 JUDGE GUNAWARDANA: Thank you.
19 JUDGE POCAR: Well, if there are no other questions, we can ask
20 the -- I'll ask Mr. Hayman to take the floor for his reply.
21 MR. HAYMAN: Thank you, Your Honours. I will try and be brief.
22 It's startling to hear the Prosecutor say that the Prosecution of
23 the accused was not, in large part, about the Ahmici massacre because
24 that's certainly that's not how the case was tried.
25 The case was tried by the Prosecutor of which the Ahmici massacre
1 was the centrepiece. Most of the victims were from Ahmici, we had dozens
2 and dozens if not 50 victims from that area that testified. The bulk of
3 the trial was about the events on the morning of April 16th, 1993, and I
4 think it is in that context that the new evidence which surely could
5 change the verdict on -- as to whether the accused ordered the Ahmici
6 massacre, which was what he was convicted of, among other things, surely
7 that -- a change in the verdict of that nature would appropriately call
8 into question the balance of the verdict. It was the linchpin, it was the
9 heart and soul, it was what the case, in essence, was about, and it's the
10 basis of his 45-year sentence.
11 He wasn't sentenced to 45 years for allowing someone to be forced
12 to dig trenches in some other part of the region. He was sentenced
13 because more than 100 civilians died in that village on the morning, a
14 very serious, heinous crime was committed. And our position was he was
15 wrongfully committed of that and we want a chance to correct that grievous
17 My colleague asked: Where's the error? It is as if the appeals
18 briefs have not been filed in this case. They've been filed. You have
19 our briefs on the appeal. The errors that we believe occurred are in the
20 brief. The Prosecution has responded. We have spent a long period of
21 time on this appeal to date, and we are not in the early phases; hopefully
22 we're in the final phases.
23 My colleague, I don't think, understood me fully with respect to
24 why we believe the trial below was unfair with respect to the BH army
25 archive, the HVO archive, and then the Rule 68 material. The only Rule 68
1 violations that we are alleging and that we, by the way, talk about and
2 allege -- state in our appellate brief are the documents that the
3 Prosecution had such as the Kordic case materials.
4 The point with respect to these other archives is the Trial
5 Chamber subpoenaed BH for documents, the accused subpoenaed BH for
6 documents; neither of those subpoenas were adequately complied with. The
7 Prosecution subpoenaed Croatia for HVO records. We participated in those
8 hearings. We were at those hearings. We were entitled to participate,
9 watch, when the documents arrived, and we hoped that they would, the
10 Prosecution would have had a Rule 68 obligation to share the helpful
11 documents with us. We were entitled to rely on those aspects of the
12 Tribunal Rules, and the fact is the BH authorities blocked those
13 subpoenas, the Croatian authorities blocked the Prosecutor's subpoena, and
14 we didn't even get the Kordic material. So if you put it all together and
15 that, that is why the trial below, not only was unfair, but it was
16 unreliable. It's an unreliable process to have a trial when all that
17 critical documentation is missing.
18 There was mention of the Vitezovi, and I need to burden you with,
19 by calling your attention to one more document, which I intended to
20 reference in my earlier comments but I failed to do so. One of the new
21 evidence documents that Your Honours have admitted is number 96 to, I
22 believe, our first Rule 115 motion and it goes to the issue of the
23 Vitezovi and this Mr. Kraljevic.
24 I won't belabour the point, but if you'll step into the mindset,
25 if you will, of the Trial Chamber for a moment as reflected in the
1 judgement and the mindset expressed here today by the Prosecution. That
2 mindset is: Blaskic had effective control of all the forces including
3 this Vitezovi unit with young, well-armed men, very aggressive, et
5 Well, what about Exhibit 96? This is a new report dated May 7th,
6 so it's less than three weeks after the Ahmici massacre. It's a message
7 from Colonel Blaskic to the Main Staff in Mostar query the connection,
8 ownership of a petrol station. And what Colonel Blaskic says in this
9 message is the Vitezovi have taken over a gas station and they're selling
10 gas for their own enrichment.
11 Paragraph 5, "Since Vitezovi PPN commander, Darko Kraljevic, is
12 directly subordinated to you, please help us resolve this issue which is
13 becoming increasingly complicated."
14 He couldn't get gasoline for the regular HVO troops. The Vitezovi
15 are selling the community's gasoline for their own black market welfare,
16 and Blaskic can't do anything about it because he cannot control in a de
17 facto sense the Vitezovi. He has to petition the Main Staff which is
18 outside of the enclave, hundreds of miles away in Mostar, to help diffuse
19 this crisis over the gas station and the gas. That's what was really
20 going on. That's why these documents are important because they give you
21 a flavour, perhaps in a silly, mundane way, they give you a flavour of
22 what was really going on at the time.
23 Now, I do need to respond, and I'm almost done, with respect to
24 Grbavica, because I remember the testimony concerning Grbavica well, and
25 my learned colleague refers to Grbavica for the proposition that even
1 accepting all the new evidence, the Grbavica conviction should still
2 stand, it doesn't have to do with effective control.
3 The attack on Grbavica was a lawful attack on a BH army military
4 installation. That's in the judgement. The order to attack was lawful;
5 General Blaskic, Colonel Blaskic's order. What happened was after the
6 attack, there was burning and looting by indeterminate, as I recall,
7 forces or elements and the question was: Did Colonel Blaskic have
8 effective control over the looters or not? Is he criminally responsible
9 for what happened after the military action was over?
10 And I submit to you, this is a good example of how the entire body
11 of evidence, new evidence included, which now bears on the relative chaos,
12 the confusion, the multiple lines of authority, the inability of Colonel
13 Blaskic to punish groups like the military police, groups like the
14 Vitezovi, did that render him with some element of control, even in
15 Grbavica in September of 1993, with some element of effective control that
16 is less than that with respect to which or for which he could be assigned
17 criminal responsibility for looters that entered Grbavica after the
18 military action? I submit to you this question as well as the other
19 counts that don't directly involve Ahmici need to be reassessed by a trier
20 of fact.
21 The new evidence doesn't just go to Ahmici. There's new evidence
22 concerning Kiseljak and lack of effective control. There's lots of new
23 evidence about Busovaca and the death squad that was operating there at
24 the direction of Kordic and Sliskovic. There is new direct evidence
25 concerning attacks on Stari Vitez by the Vitezovi, initiatives of their
1 own making, as I recall the evidence from memory. So the new evidence
2 permeates the different counts of the conviction and Grbavica is no
4 It would be inappropriate for this Court to say, well, it's true
5 the landscape has changed, this new evidence is truly significant as we
6 have deemed these 50 items, but we're able to cut this little piece out
7 and say: Nothing's going to change that. Nothing would have changed the
8 Trial Chamber's views of that.
9 Can you say that with certainty, beyond a reasonable doubt? We do
10 not believe that you can.
11 If you don't send this case to a Trial Chamber for a new trial,
12 what's going to happen now? What is life for all of us going to be like?
13 It is not a pretty picture and this goes to the efficient and orderly
14 administration of justice.
15 You will have to review the rest of the 115 items, we will have to
16 get the remaining 25.000 documents, file more Rule 115 motions with
17 respect to whatever is exculpatory. We will have to file more 115 motions
18 with respect to whatever is exculpatory in these closed session Lasva
19 Valley cases which we just got access to in September. There will be a
20 full round of briefing on this 115 motions. The Prosecutor wants to file
21 additional appellate briefs based on what is admitted under Rule 115, and
22 then all the witnesses that need to be heard and re-examined need to be
24 Now, I ask you: Is that the efficient and orderly administration
25 of justice or would it be more efficient now to say: We have heard
1 enough. We have these authorities under Rule 117 and Article 25. It is
2 time for a new trial. Put all this to rest. Direct the parties, direct
3 the Trial Chamber to do it in an efficient streamlined way that doesn't
4 impair anyone's rights, and we can be done with a new trial before all the
5 steps that I outlined could possibly be accomplished.
6 I would be happy to try and answer any questions you may have.
7 JUDGE POCAR: Thank you, Mr. Hayman. Do you have any -- please.
8 JUDGE HUNT: Mr. Hayman, at a stage, I think about this time last
9 year, the appellant was dragged, struggling to and obliged to file his
10 appellate briefs before the fresh evidence was disclosed, having been
11 given a fair amount of leeway in the meantime. And it was made clear to
12 you at the time that having seen the additional evidence, you would be
13 entitled to add to your appellate brief. That's the same that was in
14 Kordic, and it's the general policy of the Appeals Chamber to do it that
15 way at this stage.
16 Now, you were arguing earlier on this evening that there had been
17 a mistrial, in somewhat general terms, based upon the absence of this
18 material at the trial and the findings by the Trial Chamber that by reason
19 of their absence at the trial, they drew a number of adverse inferences
20 against your client. Has that found its way into your appellate's brief
22 MR. HAYMAN: Yes. Yes, Your Honour. We expressly point out and I
23 recall because I was outlining my arguments this morning. In our appeal
24 brief, we state that the Trial Chamber inferred from the absence of orders
25 and from the absence of the SIS report investigating Ahmici that there
1 must be other illegal orders that the Court didn't have access to.
2 JUDGE HUNT: I know those references, but have you actually
3 footnoted it from the documents that have come in?
4 MR. HAYMAN: My learned colleague is nodding vigorously up and
5 down, and I take that as an emphatic yes. Without looking, I can't tell
6 you what's in the footnotes exactly or brief.
7 JUDGE HUNT: Well, I must confess when I looked at it, I wasn't
8 looking at it from this point of view. But my recollection is you raised
9 the argument that it was unfair for the Trial Chamber to have done so, but
10 what I wanted to know is whether you have actually incorporated in those
11 the material which has now come in. I believe your co-counsel says yes.
12 I believe we can accept that.
13 MR. HAYMAN: I believe we have because we filed our appeal brief
14 after we filed our third Rule 115 -- I'm sorry, after we filed our second
15 Rule 115, we hadn't filed the third, but the second, and we had the
16 report, the SIS report by the second so that should be in our brief.
17 JUDGE HUNT: Good. Thank you very much.
18 JUDGE POCAR: May I put you a question, Mr. Hayman?
19 MR. HAYMAN: Of course.
20 JUDGE POCAR: That may be of interest although it may be minor.
21 You made the point in your previous submission that if we do not -- if we
22 do not order a new trial by a Trial Chamber, there will be a violation of
23 the right of appeal of your client.
24 Now, is that your point that when new evidence is brought before
25 the Appeals Chamber, that involves a redetermine -- possible
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 redetermination of facts, there would always be a violation of the right
2 to appeal if the Appeals Chambers proceeds, itself, to redetermine the
3 fact or are you relying just on the quantity of the evidence in this
5 MR. HAYMAN: I think, Your Honour, that there is a tension between
6 the right to appeal and the mechanics of Rule 115. And as you move -- and
7 I think Rule 115 envisioned a situation where a somewhat discrete and
8 limited body of new material becomes available. It doesn't say that, but
9 I think that that can be inferred. And as you move away from that
10 paradigm towards sea-change type - I hope that translates - of documents
11 possibly requiring the recalling of many, many witnesses, including
12 experts and so forth, you move away from a more limited Rule 115 hearing
13 and closer to a retrial. And there is a point -- what we're saying is
14 there is a point at which you have moved close enough to a retrial that
15 for that proceeding to occur before the Appeals Chamber, you are -- you
16 would be inappropriately denying the appellant the right to an appeal from
17 that ultimate verdict or decision. And from what I have seen and from I
18 am hearing, more documents, more witnesses, we are closer to a retrial
19 than what was envisioned by Rule 115, whether it happens here or below,
20 such that we think the right to appeal is implicated.
21 JUDGE POCAR: Borderline would be, according to you, just the
22 quantity, test of quantity.
23 MR. HAYMAN: I think it is the quantity and it is the nature.
24 Here, there is -- the 45-year sentence was for the Ahmici massacre. At
25 least 40 of those 45 years. I believe that with all my heart and soul.
1 So if the evidence goes clearly and squarely to that offence for which the
2 accused was convicted, is it appropriate for him to have a redetermination
3 on that and then never have a right of appeal? That's my concern, as well
4 as just the quantity.
5 JUDGE POCAR: Okay. Thank you.
6 MR. HAYMAN: Thank you.
7 JUDGE POCAR: If there are no more questions, we can conclude our
8 hearing. So the hearing is adjourned.
9 --- Whereupon the Appeals Proceeding adjourned
10 at 6.35 p.m.