Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 22 April 2008

 2                           [Appeals Judgement]

 3                           [The appellant Hadzihasanovic entered court]

 4                           [Open session]

 5                           --- Upon commencing at 2.17 p.m.

 6             JUDGE POCAR:  Good afternoon, to everybody.

 7             Madam Registrar, can you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours, this is case number

 9     IT-01-47-A, The Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

10             JUDGE POCAR:  Thank you.

11             May I turn to Mr. Hadzihasanovic and Mr. Kubura.  Can you clearly

12     here and understand the translation?

13             THE ACCUSED HADZIHASANOVIC: [Interpretation] Good afternoon, Your

14     Honour.  Yes, I can hear loud and clearly.

15             THE ACCUSED KUBURA: [Interpretation] Good afternoon, Your

16     Honours.  I can hear the translation and I can understand it.

17             JUDGE POCAR:  Now let me ask for the appearances for the parties.

18     First, the Defence for Mr. Hadzihasanovic.

19             MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honours.

20     For General Enver Hadzihasanovic, Edina Residovic, main counsel, Stephane

21     Bourgon, co-counsel, and our case managers and legal assistants.

22             JUDGE POCAR:  Thank you.

23             Now for Mr. Kubura.

24             MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.

25     I am Fahrudin Ibrisimovic.  I am counsel with Amir Kubura, and with here

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 1     me today are Rodney Dixon, co-counsel, and our legal assistant.

 2             JUDGE POCAR:  And for the Prosecution.

 3             MR. KREMER:  Peter Kremer, appearing for the Prosecution, with

 4     Xavier Tracol and Ms. Barbara Goy; and Sebastiaan van Hooydonk our case

 5     manager is assisting us.  Thank you.

 6             JUDGE POCAR:  I thank you.

 7             As the registrar announced, the case on our agenda today is The

 8     Prosecutor versus Enver Hadzihasanovic and Amir Kubura.  In accordance

 9     with the Scheduling Order on 11 April 2008, today the Appeals Chamber

10     will deliver its judgement.

11             This case concerns certain events that unfolded in Central Bosnia

12     in 1993, particularly in the municipalities of Bugojno, Vares, and

13     Zenica.  During the period relevant for the indictment, the appellant

14     Hadzihasanovic was commander of the 3rd Corps of the army of Bosnia and

15     Herzegovina.  The appellant Kubura was commander of the 3rd Corps,

16     7th Muslim Mountain Brigade.

17             On 15 March 2006, the Trial Chamber found Hadzihasanovic guilty

18     pursuant to Articles 3 and 7(3) of the Statute for having failed in his

19     duty as a superior to prevent or punish the murder by his subordinates of

20     Mladen Havranek at the Slavonija furniture salon in the Bugojno

21     municipality, the murder by his subordinates of Dragan Popovic at the

22     Orasac camp, and the cruel treatment by his subordinates at the Zenica

23     music school at the Orasac camp and at various detention centres in

24     Bugojno.

25             The Trial Chamber acquitted Hadzihasanovic on all other counts of

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 1     the indictment.  Kubura was found guilty, pursuant to Articles 3 and 7(3)

 2     of the Statute, for having failed in his duty as a superior to prevent or

 3     punish the plunder by his subordinates in the Ovnak area and in Vares.

 4     The Trial Chamber acquitted Kubura on all other counts of the indictment.

 5             Hadzihasanovic was sentenced to five years of imprisonment;

 6     Kubura was sentenced to two years and six months imprisonment.

 7     Hadzihasanovic appealed on 18 April 2006, seeking the reversal of the

 8     convictions against him.  Kubura appealed on 13 April 2006, challenging

 9     both his conviction and the sentence imposed on Hadzihasanovic, but not

10     the acquittal.

11             The Prosecution appealed the sentence imposed on Hadzihasanovic

12     but not the acquittals.  The Prosecution appealed Kubura's acquittal

13     under Count 5 on the indictment, regarding wanton destruction in the town

14     of Vares in November 1993 and the sentence imposed on him.  The Appeals

15     Chamber heard oral submissions of the parties regarding these appeals on

16     4 and 5 December 2007.

17             Following the practice of this Tribunal, I will not read out the

18     text of the judgement except for the disposition.  Instead, I will

19     summarize the issues on appeal and the findings of the Appeals Chamber.

20     I emphasise that this summary is not part of the written judgement, which

21     is the only authoritative account of the Appeals Chamber's rulings and

22     reasons.  Copies of the written judgement will be made available to the

23     parties at the conclusion of the hearing.

24             I now will address the party's grounds of appeal.  First, I will

25     address Hadzihasanovic's arguments regarding the alleged infringement on

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 1     his right to a fair trial.  Second, I will address the party's arguments

 2     concerning Hadzihasanovic's individual criminal responsibility as a

 3     superior.  Third, I will address the parties' arguments concerning

 4     Kubura's individual criminal responsibility as a superior.  And, finally,

 5     I will turn to the parties' arguments regarding the sentences imposed on

 6     Hadzihasanovic and Kubura.

 7             In his first, second, and as a part of his third and sixth ground

 8     of appeal, Hadzihasanovic submits that the Trial Chamber committed

 9     numerous errors infringing upon his right to a fair trial under Article

10     21 of the Statute.  For the reasons that are set out in the judgement,

11     the Appeals Chamber finds that Hadzihasanovic failed to demonstrate that

12     the Trial Chamber erred in law or, in fact, that his right to a fair

13     trial was infringed.

14             Let me now turn to Hadzihasanovic's individual criminal

15     responsibility as a superior.  Under his third ground of appeal,

16     Hadzihasanovic argues that the Trial Chamber erred by finding that he

17     failed to take the adequate measures required to punish those responsible

18     for the murder of Mladen Havranek, and the cruel treatment of six

19     prisoners at the Slavonija furniture salon on 5 August 1993, as well as

20     to prevent similar crimes in the other detention facilities in Bugojno.

21             The Appeals Chamber concurs with the Trial Chamber's finding that

22     the evidence before it provided a sufficient basis to conclude that the

23     perpetrators of the 5 August 1993 Slavonija furniture salon crimes were

24     held responsible for breaches of military discipline, by the military

25     disciplinary organ in Bugojno, and that no criminal report was filed with

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 1     the district military prosecutor's office regarding the matter.

 2             The Appeals Chamber agrees with the Trial Chamber that, given the

 3     gravity of the offences for which the perpetrators were being punished,

 4     murder and cruel treatment, Hadzihasanovic could not consider as

 5     acceptable punishment the disciplinary sanction of a period of detention

 6     not exceeding 60 days.

 7             The Appeals Chamber, however, finds that no reasonable trier of

 8     fact could have found beyond a reasonable doubt that the 3rd Corps failed

 9     to initiate an investigation or criminal proceedings against the

10     perpetrators of the murder and cruel treatment by filing a report with

11     the Bugojno municipal public prosecutor.

12             The report from the 20 of August 1993 from the chief of the

13     civilian police in Bugojno regarding alleged war crimes committed against

14     Croats, which established that the Bugojno municipal public prosecutor

15     met with European Community observers to discuss alleged war crimes

16     committed against Croats, including the murder of Mladen Havranek, indeed

17     raises a reasonable doubt as to whether the 307th Brigade subordinated to

18     the 3rd Corps headed by Hadzihasanovic filed a criminal report regarding

19     the 5 August 1993 Slavonija furniture salon crimes with the Bugojno

20     municipal public prosecutor.

21             The Appeals Chamber recalls that a superior need not dispense

22     punishment personally and may discharge his duty by reporting the matter

23     to the competent authority.  In the present case, the Appeals Chamber

24     finds that the reportings of the crimes to the Bugojno municipal public

25     prosecutor in conjunction with the disciplinary sanction imposed by the

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 1     military disciplinary organ constituted necessary and reasonable measures

 2     to punish the perpetrators.

 3             For the reasons set out in the judgement, the Appeals Chamber

 4     reverses Hadzihasanovic's convictions for having failed to take the

 5     adequate measures required to punish those responsible for the murder of

 6     Mladen Havranek and the cruel treatment of six prisoners at the Slavonija

 7     furniture salon on 5 August 1993.

 8             Under his third ground of appeal, Hadzihasanovic also contends

 9     that the Trial Chamber erred in finding that he had reason to know of the

10     acts of mistreatment committed in the Bugojno detention facility as of

11     18 August 1993.

12             To reach this conclusion, the Trial Chamber mainly relied on its

13     previous finding that Hadzihasanovic had failed to take adequate measures

14     to punish the perpetrators of the 5 August crimes; however, the Appeals

15     Chamber found that this latter finding was in error.

16             Considering then none of the Trial Chamber's remaining findings,

17     whether taken individually or collectively, sufficiently supports the

18     Trial Chamber's conclusion that Hadzihasanovic had reason to know of the

19     acts of cruel treatment in the Bugojno detention facility as of

20     18 August 1993, the Appeals Chamber finds that no reasonable trier of

21     fact could have concluded, given the evidence, that Hadzihasanovic

22     possessed the requisite knowledge under Article 7(3) of the Statute,

23     which would trigger his responsibility to prevent or punish such acts.

24             For the reasons set out in the judgement, the Appeals Chamber

25     reverses Hadzihasanovic's convictions for having failed to take adequate

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 1     measures to prevent or punish the acts of mistreatment in the Bugojno

 2     detention facilities as of 18 August 1993.

 3             Under his fourth ground of appeal concerning the cruel treatment

 4     at the Zenica music school from May to September 1993, Hadzihasanovic

 5     argues that the Trial Chamber erred by finding that he failed to take the

 6     reasonable measures necessary to punish the perpetrators and prevent such

 7     acts.

 8             First, Hadzihasanovic argues that the Trial Chamber failed to

 9     properly consider the evidence provided by Witness Dzemal Merdan, his

10     deputy commander, and Witness HF, a senior officer of the 3rd Corps

11     command, that the measures were taken by the 3rd Corps to investigate

12     allegations of mistreatment at the Zenica music school.  The Appeals

13     Chamber notes that the Trial Chamber did not ignore the testimony of

14     these two witnesses, but, after reviewing the totality of the evidence

15     before it, decided to accord greater weight to other evidence.

16             The Trial Chamber found, based on the many accounts by former

17     prisoners at the music school, that the Zenica music school's basement

18     consistently housed between ten and 30 detainees from 18 April until

19     20 August 1993.  The Trial Chamber further found that Hadzihasanovic

20     received alarming information from other sources, which established the

21     need for further inquiry based on allegations of mistreatment.  Thus, the

22     Trial Chamber's finding that an investigation of the allegations of cruel

23     treatment would have enabled Hadzihasanovic to identify the persons

24     responsible for the violence does not turn solely on the truthfulness of

25     witnesses Dzemal Merdan and HF.

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 1             Second, Hadzihasanovic argues that the Trial Chamber failed to

 2     properly consider evidence that the arrest, detention, and alleged

 3     mistreatment of the detainees at the music school was concealed by some

 4     members of the 7th Brigade.  The Appeals Chamber finds that the Trial

 5     Chamber noted that there was an intention on the part of the soldiers

 6     present at the school to conceal the mistreatment inflicted on the

 7     detainees, but concluded that this had no bearing on Hadzihasanovic's

 8     criminal responsibility.  Indeed, the Trial Chamber found that

 9     Hadzihasanovic had received information that his subordinates were

10     committing mistreatment at the Zenica music school from sources outside

11     the 7th Brigade, such that any attempted concealment by members of the

12     7th Brigade was rendered secondary.

13             Third, Hadzihasanovic submits that the measures he took with

14     respect to the Zenica music school were necessary and reasonable.  The

15     Trial Chamber considered Hadzihasanovic's arguments that he had taken

16     preventative measures to ensure that civilians and prisoners of war were

17     treated in accordance with international humanitarian law, and that he

18     took steps to investigate allegations of mistreatment.  The Trial

19     Chamber, nevertheless, concluded that Hadzihasanovic did not make genuine

20     efforts to initiate an appropriate investigation into the allegations of

21     cruel treatment; whereas, such an investigation would have enabled him to

22     discover the identity of the persons responsible for the violence.

23             For the reasons set out in the judgement, the Appeals Chamber

24     finds that Hadzihasanovic failed to demonstrate that no reasonable trier

25     of fact could have concluded that, given the evidence, he failed to take

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 1     necessary and reasonable measures to punish the perpetrators of the cruel

 2     treatment at the Zenica music school and prevent further mistreatment.

 3             I now turn to Hadzihasanovic's arguments under his fifth ground

 4     of appeal, concerning the murder and cruel treatment in Orasac in

 5     October 1993.

 6             Hadzihasanovic submits that the Trial Chamber erred by finding

 7     that he failed to take necessary and reasonable measures to prevent the

 8     murder of Dragan Popovic and the cruel treatment committed by

 9     El Mujahedin Detachment in the Orasac camp against five civilians

10     abducted on 19 October 1993.

11             He argues that the Trial Chamber erred in finding that he had

12     de jure authority over the members of the El Mujahedin Detachment and in

13     finding that he exercised effective control over the El Mujahedin

14     Detachment.  Since de jure authority is only one factor that helps to

15     establish effective control, and because the question is resolvable on

16     the basis of effective control alone, the Appeals Chamber declines to

17     address whether Hadzihasanovic had de jure authority over the

18     El Mujahedin Detachment.

19             The Trial Chamber found that Hadzihasanovic exercised effective

20     control over the detachment on the basis that the evidence before it

21     showed that three types of indicia of effective control were satisfied;

22     namely, the power to give orders to the detachment and have them

23     executed, the conduct of combat operations involving the detachment, and

24     the absence of any other authority over the detachment.

25             First, the Appeals Chamber recognises that the power to give

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 1     orders and have them executed can serve as a an indicia of effective

 2     control.  In the present case, the Trial Chamber took concern orders of

 3     resubordination into account, though to varying degrees, as indicia of

 4     effective control.  However, for the reasons set out in the judgement,

 5     the Appeals Chamber finds that none of the resubordination orders, either

 6     individually or collectively, is sufficient to establish the existence of

 7     effective control.

 8             Second, the Appeals Chamber finds that while the findings relied

 9     upon by the Trial Chamber confirm that the El Mujahedin Detachment took

10     part in several combat operations in September and October 1993, and that

11     this occurred within the framework established by the Operational Group

12     Bosanska Krajina and the 3rd Corps, they do not necessarily provide

13     sufficient support for the conclusion that Hadzihasanovic had effective

14     control over the El Mujahedin Detachment in the sense of having the

15     material ability to prevent or punish its members should they commit

16     crimes.

17             Notably, several findings of the Trial Chamber demonstrate that

18     the El Mujahedin Detachment maintained a significant degree of

19     independent from the units it fought alongside on various issues, which

20     belies the Trial Chamber's conclusion that the El Mujahedin Detachment

21     was under the effective control of the 3rd Corps.  The Trial Chamber

22     found, for example, that the detachment members were anxious to maintain

23     their independence and reserved the right to decide whether they would

24     take part in combat operations.  Thus, while these Trial Chamber's

25     findings indicate that the 3rd Corps cooperated with the El Mujahedin

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 1     Detachment, they are insufficient to establish the existence of a

 2     relationship of effective control between the 3rd Corps and the

 3     El Mujahedin Detachment.

 4             Third, with regard to the absence of any other authority over the

 5     El Mujahedin Detachment, the Appeals Chamber finds that some of the Trial

 6     Chamber's findings suggest that the El Mujahedin Detachment was more

 7     under the influence of Muslim clerics than under that of the 3rd Corps.

 8     However, the Appeals Chamber disputes the relevance of the criterion

 9     identified by the Trial Chamber as an indicator of the existence of

10     effective control.  Hadzihasanovic's effective control cannot be

11     established by process of elimination.  The absence of any other

12     authority over the detachment in no way implies that Hadzihasanovic

13     exercised effective control in this case.

14             Last, I turn to Hadzihasanovic's argument that he could not have

15     effective control over the detachment if the only way for the 3rd Corps

16     to obtain the release of the civilians abducted on 19 October 1993 was to

17     use force.

18             The Appeals Chamber finds that the military operation that the

19     Trial Chamber expected the 3rd Corps to undertake to rescue these

20     hostages would be comparable to that necessary to obtain the release of

21     hostages from an enemy force rather than a force under its effective

22     control.  Regardless of whether the use of force was materially feasible

23     or advisable to save the lives of the hostages, the facts of the case

24     reveal a situation in which the relationship between the El Mujahedin

25     Detachment and the 3rd Corps was not one of subordination.  Instead, it

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 1     was close to overt hostility, since the only way to control the

 2     detachment was to attack them, as if they were a distinct enemy force.

 3     This scenario is at odds with the premise that the Trial Chamber that the

 4     El Mujahedin Detachment was subordinated to the 3rd Corps.  This

 5     conclusion further confirms that Hadzihasanovic did not have effective

 6     control over the El Mujahedin Detachment.

 7             For the reasons set out in the judgement, the Appeals Chamber

 8     concludes that no reasonable trier of fact could have concluded that it

 9     was established beyond a reasonable doubt that Hadzihasanovic had

10     effective control over the El Mujahedin Detachment between 13 August and

11     1 November 1993.  As a result, the Appeals Chamber reverses

12     Hadzihasanovic's conviction for having failed to present the crimes of

13     cruel treatment committed between 19 and 31 October 1993, and the murder

14     of Dragan Popovic.

15             I now turn to Kubura's individual criminal responsibility as a

16     superior.

17             Under his first ground of appeal, Kubura submits that the Trial

18     Chamber erred in convicting him of failing to take necessary and

19     reasonable measures to punish the acts of plunder committed in June 1993

20     in the Ovnak area.  He argues that the Trial Chamber erred in finding

21     that the 7th Brigade was involved in the plunder committed in the Ovnak

22     area and/or that he knew of his subordinates' involvements in these acts.

23             First, the Appeals Chamber notes that the Trial Chamber examined

24     Kubura's claim that members of the 7th Brigade could not have been

25     responsible for the plunder because they had already left the Ovnak area

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 1     on 8 June 1993, but, following its review of the evidence, concluded

 2     otherwise.  While, as Kubura argues, the Trial Chamber, indeed, found

 3     that members of the 7th Brigade did not enter the villages where the

 4     plunder was committed, and left the sector on 9 June 1993, it also found

 5     that, following the end of combat operations, members of the 7th Brigade

 6     military police units entered and systemically plundered the Ovnak area

 7     as of June 1993 prior to their departure.

 8             The Appeals Chamber finds that Kubura failed to establish that,

 9     given the evidence, no reasonable trier of fact could have concluded that

10     members of the 7th Brigade committed plunder in the Ovnak area in

11     June 1993.

12             Second, with regard to Kubura's arguments that the Trial Chamber

13     only relied on one witness to conclude that he had knowledge of the

14     plunder committed in the Ovnak area on 9 June 1993, the Appeals Chamber

15     finds that he ignores the additional evidence considered by the Trial

16     Chamber and its resulting findings.  Moreover, the Trial Chamber noted

17     that Kubura received orders alerting him to plunder in the Ovnak area

18     generally, which Kubura acknowledged and responded to.

19             In addition, the Trial Chamber found that Kubura issued a report

20     on 20 June 1993 to the 3rd Corps command acknowledging that a

21     standardised procedure for war booty had been implemented by the

22     7th Brigade.  The Appeals Chamber finds that Kubura failed to demonstrate

23     that, given the evidence, no reasonable trier of fact, could have

24     concluded that he had knowledge of plunder by his subordinates in the

25     Ovnak area in June 1993.

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 1             In light of the forgoing, the Appeals Chamber accordingly upholds

 2     Kubura's conviction for failing to take the necessary and reasonable

 3     measures to punish the plunder committed by his subordinates in June 1993

 4     in the Ovnak area.

 5             Under his second ground of appeal, Kubura submits that the Trial

 6     Chamber erred in convicting him of failing to take necessary and

 7     reasonable measures to prevent or punish the plunder which took place in

 8     Vares in November 1993.  He argues that the Trial Chamber erred in

 9     finding that the 7th Brigade was involved in the commission of acts of

10     plunder there Vares in November 1993 and/or that he knew or had reason to

11     know of these acts.

12             First, with regard to the 7th Brigade's involvement, the Appeals

13     Chamber finds that the documents relied upon by the Trial Chamber in

14     reaching the finding that Kubura's subordinates engaged in plunder in

15     Vares specifically referred to the 7th Brigade's involvement in these

16     acts.  The Appeals Chamber finds that Kubura failed to demonstrate that,

17     given the evidence, no reasonable trier of fact could have concluded that

18     members of the 7th Brigade commit the plunder in Vares in November 1993.

19             Second, with regard to Kubura's knowledge of the acts of plunder

20     in Vares triggering his duty to prevent them, the Appeals Chamber notes

21     that the Trial Chamber focused its reasoning on Kubura's failure to

22     punish his subordinates' plunder in the Ovnak area some five months

23     earlier.  While portions of the trial judgement demonstrate that the

24     Trial Chamber considered factors other than Kubura's past failure to

25     punish his subordinates in determining whether he had reasonable to know

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 1     of their acts of plunder in Vares on 4 November 1993, the Trial Chamber

 2     judgement suffers at the very least from a lack of clarity as to whether,

 3     and if so, how the Trial Chamber took into account the circumstances of

 4     the case in determining that Kubura had reason to know sufficient to

 5     trigger a duty to prevent his subordinates' plunder in Vares.

 6             The Appeals Chamber deems it of significant import that the Trial

 7     Chamber found that, irrespective of the measures taken by Kubura to stop

 8     the act of plunder in Vares once he had knowledge of them, Kubura

 9     remained responsible for failing to prevent these acts in the first place

10     based exclusively on his past failure to punish similar acts in the Ovnak

11     area.  Such a conclusion implies that the Trial Chamber considered

12     Kubura's knowledge of and past failure to punish his subordinates' acts

13     of plunder in the Ovnak area as automatically entailing that he had

14     reason to know of their future acts of plunder in Vares.

15             The Appeals Chamber finds that this constitutes an error of law.

16             Having applied the correct legal standard to the evidence

17     contained in the trial record, the Appeals Chamber recognises that

18     Kubura's knowledge of and failure to punish his subordinates' past acts

19     of plunder was likely to be understood by his subordinates at least as

20     acceptance, if not encouragements of such conduct, such that it increased

21     the risk that further acts of plunder such as those in Vares would be

22     committed again.  The Appeals Chamber notes, however, that the acts of

23     plunder committed by Kubura's subordinates in the Ovnak area on

24     9 June 1993 and in Vares on 4 November 1993 were separated by some five

25     months and some 40 kilometres.

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 1             While the plunder was widespread on each of these two occasions,

 2     Kubura's subordinates were not found to have engaged in plunder on a

 3     frequent basis while under his command.  The Appeals Chamber recalls that

 4     the Trial Chamber did not find that Kubura had any other knowledge

 5     regarding his subordinates' acts of plunder in Vares prior to their

 6     commission, other than the knowledge it inferred from his past failure to

 7     punish.

 8             However, with respect to Kubura's knowledge of his subordinates'

 9     acts of plunder whilst they were ongoing, the Appeals Chamber recalls

10     that Kubura received orders on 4 November 1993 alerting him to the

11     ongoing acts of plunder in Vares and holding him responsible for stopping

12     them.  Indeed, the Trial Chamber found that Kubura received orders from

13     the 3rd Corps command directing him to use military police to prevent

14     property from being plundered in Vares, as well as instructions from the

15     Operational Group East to cease all unauthorized acts, stop anything from

16     being removed, and withdraw his troops from the town.

17             While Kubura's knowledge of his subordinates' past plunder in

18     Ovnak and his failure to punish them did not in itself amount to actual

19     knowledge of the acts of plunder in Vares, the Appeals Chamber concurs

20     with the Trial Chamber that the orders he received on 4 November 1993

21     constituted, at the very least, sufficiently alarming information

22     justifying further inquiry.

23             The Appeals Chamber accordingly finds that Kubura possessed

24     knowledge sufficient to trigger a duty to prevent his subordinates from

25     committing further plunder in Vares as of his receipt of the orders

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 1     alerting him to the ongoing plunder.

 2             For the reasons set out in the judgement, the Appeals Chamber

 3     also finds that Kubura's knowledge of his subordinates' acts of plunder

 4     in Vares was also sufficient to trigger his duty to punish them.

 5             With regard to the measures taken by Kubura to prevent his

 6     subordinates from committing further acts of plunder in Vares, the

 7     Appeals Chamber recalls that, following the order of 4 November 1993 from

 8     the Operational Group Istok command, Kubura withdrew his troops from

 9     Vares the very same day, and then forbade the members of the 7th Brigade

10     from entering or staying in Vares on 5 November 1993.

11             For the reasons set out in the judgement, the Appeals Chamber

12     finds that Kubura took necessary and reasonable measures, given the

13     circumstances of the case, to prevent the plunder by putting a stop to

14     the plunder once it had started so it would not be repeated.  The Appeals

15     Chamber, however, upholds the Trial Chamber's finding that Kubura failed

16     to take necessary and reasonable measures to punish his subordinates'

17     acts of plunder in Vares on 5 November 1993.  Kubura's conviction as a

18     superior under Article 7(3) of the Statute for the plunder in Vares is

19     accordingly maintained.

20             I now turn to the Prosecution's second ground of appeal that

21     Kubura should have been convicted under Article 7(3) of the Statute for

22     the wanton destruction committed by his subordinates in Vares on

23     4 November 1993.

24             The Trial Chamber found that Kubura's subordinates committed

25     wanton destruction in Vares on 4 November, but that it was not proven

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 1     beyond a reasonable doubt that he knew or had reason to know of this

 2     crime.

 3             First, as to whether Kubura received the information concerning

 4     the destruction of property in Vares, the Trial Chamber found, as

 5     correctly remarked by the Prosecution, that the Operational Group Istok

 6     issued a combat report to the 3rd Corps commander on 4 November noting

 7     the chaotic situation in Vares.  In this report, the Operational Group

 8     Istok requested that the 3rd Corps command send police military units to

 9     the town of Vares.  In response, the 3rd Corps command issued a combat

10     report stating that it had issued orders that brigades use military force

11     to prevent chaos and the destruction of property in Vares.

12             The Trial Chamber found that the 7th Brigade neither received the

13     4 November 1993 Operational Group Istok combat report to the 3rd Corps

14     command, nor the 3rd Corps command report in response.  Yet, from the

15     content of the 3rd Corps command report, it inferred that the 7th Brigade

16     must have received orders to use military police forces to prevent chaos

17     and the destruction of property in Vares, given that the 7th Brigade was

18     subordinated to the 3rd Corps command and present in Vares.  The

19     3rd Corps command combat report, however, failed to make explicit the

20     identity of the perpetrators of the acts of wanton destruction in Vares.

21     The Appeals Chamber notes that other brigades were also present in Vares

22     on 4 November 1993.

23             The Trial Chamber also found that the Operational Group Istok

24     issued a separate order on 4 November specifically directed to the 7th

25     Brigade commander which explicitly refers to the activities of plunder

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 1     and the need to prevent them but does not mention acts of destruction.

 2     The Appeals Chamber concurs with the Trial Chamber that given the

 3     evidence taken as a whole, the inference that the 7th Brigade must have

 4     received order from the 3rd Corps command on 4 November does not

 5     establish, by itself, Kubura's knowledge of his subordinates' acts of

 6     wanton destruction.

 7             Second, the Appeals Chamber considers that Kubura's knowledge of

 8     the acts of wanton destruction cannot automatically be inferred from his

 9     awareness of the plunder in Vares on 4 November 1993.  Indeed, the

10     Trial Chamber's finding regarding Kubura's knowledge of the plunder in

11     Vares on 4 November rests on a much broader evidentiary basis.

12     Furthermore, the Trial Chamber relied on Kubura's knowledge of and

13     failure to punish his subordinates' past acts of plunder.  The Trial

14     Chamber made no such findings with respect to any past acts of wanton

15     destruction by Kubura's subordinates.  Thus, while there was a sufficient

16     evidentiary basis for the Trial Chamber to conclude that Kubura had

17     knowledge of the acts of plunder in Vares, it was reasonable for it to

18     conclude that his knowledge, as regards the acts of wanton destruction,

19     was not established beyond reasonable doubt.

20             In light of the foregoing, the Appeals Chamber finds that the

21     Prosecution failed to establish that no reasonable trier of fact could

22     have concluded, on the basis of all the admitted evidence, that Kubura's

23     knowledge of wanton destruction in Vares on 4 November 1993 was not

24     established beyond a reasonable doubt.

25             Kubura's acquittal is confirmed.

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 1             Finally, I turn to the appeals concerning the sentences rendered.

 2             Hadzihasanovic did not specifically appeal his sentence but

 3     alleged that the Trial Chamber erred in that the disposition of the trial

 4     judgement does not adequately reflect some of the findings made by the

 5     Trial Chamber in the body of the trial judgement.  Kubura appealed his

 6     sentence as manifestly excessive, and the Prosecution appealed both

 7     Hadzihasanovic's and Kubura's sentences as manifestly inadequate.

 8             The Appeals Chamber allows Hadzihasanovic's arguments and

 9     corrects the disposition of the trial judgement concerning the temporal

10     scope of the cruel treatment at the Zenica music school to render it

11     consistent with the Trial Chamber's findings.  As regards the impact of

12     this shorter period of responsibility on Hadzihasanovic's sentence, the

13     Appeals Chamber first recalls that in the Trial Chamber, in its

14     sentencing determination, correctly determined that the cruel treatment

15     at the Zenica music school took place over approximately seven months and

16     not nine months, as erroneously indicated in the disposition of the Trial

17     Chamber.

18             The Appeals Chamber further notes that the Trial Chamber's

19     finding regarding the large number of victims involved in the detention

20     facility in Zenica, which was considered an aggravating circumstance,

21     remains valid for the relevant period.  Thus, these factors remain

22     unaffected by the above correction to the disposition of the trial

23     judgement, and there is no impact on the sentence.

24             For the reasons set out in the judgement, the Appeals Chamber

25     dismisses the Prosecution's and Kubura's arguments.  The Appeals Chamber

Page 218

 1     finds that the Trial Chamber properly considered the gravity of the

 2     crimes, the relevant aggravating and mitigating factors, and the

 3     sentencing practices in the former Yugoslavia.

 4             I will now read out the full operative paragraphs of the Appeals

 5     Chamber's judgement; that is, the disposition.

 6             Mr. Hadzihasanovic, and, Mr. Kubura, will you please stand.

 7             Here is disposition.

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

 9     Article 25 of the Statute, and Rules 117, 118 of the Rules, noting,

10     irrespective of its written submissions of the parties and the arguments

11     they presented at the hearings of 4 and 5 December 2007;

12             Sitting in open session, unanimously;

13             Allows Hadzihasanovic's appeal, in part, with respect to

14     Ground 3;

15             Reverses his conviction for failing to take the necessary and

16     reasonable measures to punish those responsible for the murder of Mladen

17     Havranek, Count 3 of the indictment, and the cruel treatment of six

18     prisoners at the Slavonija furniture salon on 5 August 1993, Count 4 on

19     the indictment;

20             As well as his conviction for failing to take the necessary and

21     reasonable measures to prevent or punish the cruel treatment at the

22     Gimnazija school building, the Slavonija furniture salon, the Iskra FC

23     stadium, and the Vojin Paleksic elementary school in Bugojno as of

24     18 August 1993, Count 4 of the indictment;

25             Allows Hadzihasanovic's appeal, in part, with respect to

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 1     Ground 4, concerning certain errors in the disposition of the trial

 2     judgement with regard to his conviction entered under Count 4 of the

 3     indictment for his failure to prevent or punish the cruel treatment at

 4     the Zenica music school;

 5             Sets aside the related portion of the disposition of the trial

 6     judgement and replaces it with the following:  Counts 4, guilty of

 7     failure to prevent or punish cruel treatment at the Zenica music school

 8     from 8 May 1993 to 20 August 1993, or 20 September 1993, in addition to

 9     failure to punish cruel treatment at the Zenica music school from

10     26 January 1993 to 8 May 1993;

11             Allows Hadzihasanovic's appeal, in part, with respect to

12     Ground 5; reverses his conviction for failing to take the necessary and

13     reasonable measures to prevent the murder of Dragan Popovic on

14     21 October 1993, Count 3 of the indictment, and his conviction for

15     failing to take the necessary and reasonable measures to prevent cruel

16     treatment at the Orasac camp from 15 October 1993 to 31 October 1993.

17     Count 4 of the indictment;

18             Reduces the sentence of five years of imprisonment imposed on

19     Hadzihasanovic by the Trial Chamber to a sentence of three years and six

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

21     of the Rules for the period Hadzihasanovic already spent in detention;

22             And dismisses Hadzihasanovic's appeal in all other respects;

23             Allows Kubura's appeal, in part, with respect to Ground 2;

24     reverses his conviction for failing to take the necessary and reasonable

25     measures to prevent, though not to push, plunder in Vares on

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 1     4 November 1993.  Count 6 of the indictment;

 2             Reduces the sentence of 30 months of imprisonment imposed on

 3     Kubura by the Trial Chamber to a sentence of two years of imprisonment;

 4             And dismisses Kubura's appeal in all other respects;

 5             Dismisses the Prosecution's appeal in its entirety;

 6             Orders that this judgement shall be enforced immediately pursuant

 7     to Rule 118 of the Rules.

 8             Mr. Hadzihasanovic, and, Mr. Kubura, you may be seated.

 9             I now request that the registrar to please deliver copies of the

10     judgement to the parties in this case.

11             Thank you, Madam Registrar.

12             The Appeals Chamber will now rise.

13                            --- Whereupon the hearing adjourned at 3.06 p.m.

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