1 Monday, 10 March 1998
3 (The accused entered the courtroom)
4 JUDGE CASSESE: I ask the Registrar to call
5 out the case number, please.
6 THE REGISTRAR: Case number IT-95-16-PT,
7 the Prosecutor of the Tribunal versus Zoran Kupreskic,
8 Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic,
9 Dragan Papic, Vladimir Santic, also known as Vlado.
10 JUDGE CASSESE: May I have the appearances
11 for the Prosecution?
12 MR BOWERS: Good morning, Terree Bowers for
13 the Prosecution, with my colleague, Michael Blaxill.
14 We also have the case analyst, Bill Smith, and the case
15 manager, Adele Erasmus.
16 JUDGE CASSESE: Could I have the appearances
17 for the Defence?
18 MR RADOVIC: I am Ranko Radovic from Croatia
19 for Zoran Kupreskic.
20 MRS SLOKOVIC-GLUMAC: Good morning, your
21 Honours. I am attorney Jadranka Slokovic-Glumac from
22 Zagreb appearing on behalf of Mr Zoran Kupreskic and
23 Mirjan Kupreskic.
24 MR KRAJINA: Good morning, your Honours.
25 I am attorney Borislav Krajina from Sarajevo appearing
1 on behalf of Vlatko Kupreskic, together with colleague
3 MR PAR: Your Honours, my name is
4 Zelimir Par. I am from Zagreb and appearing on behalf
5 of the accused, Vlatko Kupreskic.
6 MR SUSAK: I am Luka Susak from Zagreb
7 appearing on behalf of Drago Josipovic.
8 MR PULISELIC: Good morning, your Honours. I
9 am attorney Petar Puliselic from Zagreb appearing on
10 behalf of Dragan Papic.
11 MR PAVKOVIC: Good morning, your Honour, and
12 Mr President. I am Petar Pavkovic, attorney from
13 Zagreb, the Republic of Croatia, appearing on behalf of
14 Vladimir Santic.
15 JUDGE CASSESE: We feel that we are now
16 confronted with five different issues which we should
17 deal with today. You cannot hear me? Can all the
18 defendants hear me in Croatian? Can you hear me now --
19 all of you? Thank you.
20 I will say that we are confronted with five
21 different issues which we would like and we hope to be
22 able to deal with today. First of all, the
23 Prosecution's motion for leave to amend the
24 indictment. The second item is the Defence counsel
25 request for assignment of counsel having no command of
1 either English or French. The third item is the
2 request by Vlatko Kupreskic for returning items from
3 his briefcase. Then we have the question of the
4 Defence motion on the form of the indictment and,
5 lastly, we should be able to hold the status
7 May I propose that, first of all, we deal
8 with the Prosecutor's motion for leave to amend the
9 indictment, and before we hear argument, I would like
10 to say that we, the court, accepts the Prosecutor's
11 reply filed on 5 March 1998. I would like now to ask
12 the Prosecutor to present their argument on this
13 motion. I wonder whether you could confine yourself
14 to, say, 10 or 15 minutes -- would that be sufficient?
15 MR BOWERS: I think it can be shorter than
17 JUDGE CASSESE: Wonderful. Then I will turn
18 to the Defence counsel and I wonder whether each of
19 them could address this issue for, say, five to 10
20 minutes. After that, we will try to make a ruling on
21 the matter.
22 MR BOWERS: Thank you, your Honour. As we
23 have set forth in our reply, there are really only
24 three fundamental changes to the amended indictment.
25 The first one is the omission of the Article 2
1 offences, and that is really in the interests of
2 expediting the trial. It does not really change the
3 underlying criminal conduct. By eliminating the
4 Article 2 charges, we are able to forgo introduction of
5 the evidence concerning international armed conflict,
6 which we think should result in a substantial savings
7 in time for the trial itself. So that is the first
8 fundamental change.
9 The second fundamental change involves the
10 dropping of the charges against Dragan Papic in
11 relation to the trench digging activities and the
12 killing incident out at the trenches. On further
13 investigation, the attorneys who will be actually
14 prosecuting this case do not feel that those counts are
15 viable and, therefore, they have been withdrawn. For
16 the purposes of the trial, Dragan Papic is now included
17 in the persecution count as opposed to the original
18 charges involving the trench digging and the trench
19 digging killing incident.
20 The other fundamental change involves the
21 elimination of the unlawful attack charge, which is a
22 more technical offence pertaining to the military
23 execution of an actual attack, and we have substituted
24 the persecution charge in its place. Any of the other
25 changes are simply minor wording changes which do not
1 in any way change the underlying fact patterns.
2 I think the core of the case is the same -- there has
3 been substantial testimony in the Blaskic case
4 regarding the attack on Ahmici. I think all of the
5 Defence is aware of the alleged underlying criminal
6 activity and I think there is sufficient notice with
7 regard to the individual participants and their role in
8 the attack. We would simply submit that the supporting
9 material which we have presented to the court is more
10 than sufficient to meet the very threshold inquiry
11 which the court is charged with today, and that is to
12 demonstrate that there are reasonable grounds for
13 believing that there was criminal conduct within the
14 jurisdiction of the Tribunal.
15 Thank you, your Honour.
16 JUDGE CASSESE: Thank you. I will now turn
17 to the Defence and I would like to ask Defence counsel
18 to follow the order in which the accused are listed on
19 the indictment. So, first of all, therefore the
20 Defence counsel for Zoran Kupreskic and, as I say,
21 I would like to make an appeal and ask Defence counsel
22 whether each of them could confine himself or herself
23 to about five to 10 minutes, to just this particular
24 point. Counsel for Zoran Kupreskic?
25 MR RADOVIC: Your Honours, regarding what has
1 been stated by the Prosecutor, the Defence accepts only
2 the point made regarding the dropping of the
3 international conflict and we agree with that amendment
4 to the indictment. As regards the other element, we
5 have to draw the attention of the court to the fact
6 that this indictment was issued in 1995, that it was
7 confirmed by the Tribunal, and that only immediately
8 before the beginning of trial, on the basis of the same
9 grounds that were used for the original indictment, he
10 is proposing an amendment. We therefore feel that the
11 Prosecutor has no new evidence which would justify the
12 other changes to the indictment.
13 In addition, we wish to draw the attention of
14 the court to the fact that, in the individual charges,
15 the Prosecutor is describing legally the act and not
16 indicating the actual facts which come under the
17 individual Articles of the Statute. For example, in
18 count 9 and 10, reference is made to this group of the
19 accused, saying that they participated in military
20 training, armament, the evacuation of Bosnian Croats
21 and preparation of homes for attacks. Then, also,
22 there is reference made to groups of soldiers going
23 from one house to another attacking civilians and their
24 property, without making any mention at all of the role
25 of the actual accused and what their specific acts
2 In further specifying the charges in count 1,
3 persecution, the time period is extended and all the
4 accused are charged for the period from October 1992.
5 Though, as I have said, there are absolutely no new
6 facts or evidence which would give the Prosecutor the
7 possibility to expand the time period for which the
8 criminal charges are being made.
9 The Defence of the accused -- we recognise
10 there is the statement of Sakib Ahmic and we cannot go
11 into the authenticity or credibility of his statement
12 or, rather, whether his statement can serve for
13 condemnation of the accused, so we will leave that for
14 a subsequent period of the trial.
15 Therefore, our final proposal would be to
16 retain the time period that you have given us and, to
17 do that, we would agree to adopting only that amendment
18 regarding the dropping of the point regarding
19 international conflict, whereas all the other
20 amendments should not be accepted. Thank you.
21 JUDGE CASSESE: Thank you.
22 MRS SLOKOVIC-GLUMAC: Your Honours,
23 Mr Radovic and I are together defending Zoran and
24 Mirjan Kupreskic -- the first and second accused, so as
25 to avoid any confusion -- and I agree with everything
1 that my learned colleague has said, because it applies
2 to both the defendants.
3 I should also like to point out -- I do not
4 know whether it is an error, or a major mistake by the
5 Prosecution -- but I must say, first, that I also agree
6 that the international conflict should be left out,
7 and, in this way, we can expedite the proceedings,
8 which is our common aim and, also, we agree with the
9 changes in the qualifications.
10 However, in point 24 of the amended
11 indictment, a description of the act, it is stated that
12 Zoran Kupreskic, armed with an automatic weapon,
13 entered the Ahmic house and shot and killed Naser
14 Ahmic. In count 2, in the legal description, it is
15 stated that Zoran Kupreskic and Mirjan Kupreskic
16 thereby committed a crime against humanity and violated
17 the laws or customs of war.
18 Therefore, there is no incrimination for
19 Mirjan Kupreskic in the counts. In item 25 it is
20 stated that Mirjan Kupreskic entered the house later
21 on, so I see no reason why, in the actual
22 incriminations, Mirjan Kupreskic should be charged with
23 two criminal offences, whereas, in the description, no
24 mention is made, and this is quite unusual.
25 Furthermore, in the original indictment,
1 Mirjan Kupreskic was not charged with the murder of
2 Naser Ahmic. I do not know how this came about.
3 Furthermore, according to the statement of Sakib Ahmic,
4 I do not think that the court should evaluate the
5 evidence, but, as supporting material, this statement
6 of Sakib Ahmic is such that he says that Mirjan
7 Kupreskic was not armed, or rather, he said that he did
8 not see Mirjan Kupreskic wearing arms. After that,
9 Mirjan Kupreskic is charged with four murder offences.
10 Therefore, I think that either the
11 Prosecution has not been specific enough in describing
12 the case -- the charges -- or he has additional
13 evidence that we have not seen, and which serves as a
14 basis for these charges.
15 So, I should like the Prosecution to comment
16 on these points, because this is not clear to us, and
17 we consider this to be a major error on the part of the
19 Another point I should like to make that has
20 to do with point 9 of the background -- it actually
21 describes acts of which not one is a criminal offence.
22 For instance, reference is made to "evacuation",
23 "failure to inform neighbours", "arming under war
24 conditions" -- these are not criminal offences.
25 Regardless of that, this is used to charge the accused
1 with crimes against humanity, under Article 5(a).
2 I think that this point should be omitted, as it lacks
3 precision and foundation. Thank you.
4 JUDGE CASSESE: Counsel for Vlatko
6 MR KRAJINA: Your Honour. Contrary to our
7 response to the proposal of the Prosecution to amend
8 the indictment, we propose that this motion be rejected
9 and we wish to point out that Vlatko Kupreskic, and we
10 as their Defence, have still not availed ourselves of
11 the right to submit motions regarding the original
12 indictment, because we were given notice that it would
13 be amended.
14 We are therefore in a slightly less
15 favourable position than the other Defence counsel, who
16 have already had occasion to voice their opinion
17 regarding the original indictment. The deadline for
18 motions for Vlatko Kupreskic expires on 16 March this
19 year, and we still do not know when a ruling will be
20 made regarding the request of the Prosecution to amend
21 the indictment. Therefore, we may find ourselves in a
22 situation where, in the event that the request of the
23 Prosecution for amending the indictment is rejected, in
24 that case our time limit may run out for submitting
1 Therefore, we appeal to the Trial Chamber
2 that, in the event of the request of the Prosecution
3 being rejected, we are given another eight days for
4 submitting motions regarding the original indictment.
5 As for the response to the request of the
6 Prosecution for amending the indictment, which we have
7 submitted to the Trial Chamber, and after hearing the
8 response of the Prosecution to our reply, we still
9 abide by the original proposal that this request of the
10 Prosecution for amending the indictment be rejected.
11 The main thesis of the Defence counsel of
12 Vlatko Kupreskic, which we argued in our response, is
13 that the evidence which our learned friend, the
14 Prosecution, presented, in our view, is not sufficient
15 to confirm the indictment.
16 Of course, this will be determined by the
17 Trial Chamber, but allow me to make only a few points.
18 The accused, Vlatko Kupreskic, is, as we see, facing
19 the supreme penal Tribunal, charged with very grave
20 crimes -- war crimes -- and violations of the laws and
21 customs of war. Such serious accusations, in our view,
22 require a certain standard of evidence, which must be
23 understandable to all legal systems.
24 However, in support of this indictment, we do
25 not see the Prosecution offering that kind of evidence,
1 namely, with respect to point 1 of the amended
2 indictment, which has to do with the persecution of
3 Muslims on religious and political grounds, where the
4 incrimination is intentional killing of Bosnian
5 Muslims, systematic destruction of homes and property
6 of Bosnian Muslims, the organisation, detention and
7 expulsion of Muslims from Ahmici, Santici, et cetera,
8 there is not a single element of proof to confirm such
9 charges. Out of the three statements offered by the
10 Prosecution, not a single one contains a relevant fact
11 which could be linked to what the accused, Vlatko
12 Kupreskic, is charged with.
13 Contrary to this, the Defence, in support of
14 its reply regarding the request for amending the
15 indictment, has offered statements by Muslims and other
16 factual evidence, which, in our opinion, indisputably
17 show that Vlatko Kupreskic, at the relevant time
18 period, was not a participant in political or military
19 life, that he had no authorisations or powers of that
20 kind, and therefore could not, in the way described in
21 the indictment, have planned the attack on Ahmici, nor
22 could he have organised the systematic persecution of
24 If necessary, the Defence can, in more
25 detail, analyse those witness statements and other
1 evidence offered by the Prosecution in support of this
3 We therefore feel that, with respect to
4 count 1, there is no relevant evidence that could
5 incriminate the accused, Vlatko Kupreskic.
6 Regarding the crime against humanity and
7 breaches of the customs and laws of war from counts 12
8 to 15 of the indictment, having to do with the killing
9 of Fata Pezer and the wounding of Dzenana Pezer. A
10 brief reference to these charges will be made by my
11 colleague, Zelimir Par. That is the agreement we have
12 reached between us.
13 MR PAR: Your Honours, points 12 to 15 of the
14 amended indictment deal with a specific event which
15 took place on 16 April 1993, when Vlatko Kupreskic is
16 accused with the murder of one person and the wounding
17 of another. Regardless of the fact that the legal
18 description of these acts is "crimes against humanity"
19 and "violations of the laws and customs of war", we
20 feel that the substance of this act is murder and
21 bodily injury -- in this case, with firearms.
22 Therefore, the evidence confirming the accusations of
23 this kind, we feel, need to contain all elements that
24 would prove the cause of death and the instrument used
25 for committing the act, the way in which the act was
1 committed, the time when it was committed, the place
2 when it was committed, and the perpetrator of the act.
3 In this specific case, the Prosecutor has, in
4 support of these charges, submitted only one evidence;
5 that is, a statement of an unnamed witness, whose
6 identity was subsequently disclosed.
7 The Defence has analysed the statement of
8 this witness and considers the statement to be contrary
9 to the allegations contained in both indictments. With
10 respect to the first indictment, we feel that the
11 statement of the witness is untruthful, because the
12 place where the witness was at the time -- in view of
13 the place where he was, he was not in a position to see
14 the accused, Vlatko Kupreskic, nor where Vlatko
15 Kupreskic allegedly was at the time according to the
17 The Defence bases this view on a video
18 recording, which we made on the spot, regarding the
19 place of the act, the place where they were wounded,
20 the position where the witness was at the time, and how
21 this position relates to the yard of Vlatko Kupreskic's
22 house, or rather the spot where allegedly this witness
23 saw Vlatko Kupreskic.
24 Therefore, we submit, on the basis of this
25 videotape, that there was no possibility of the witness
1 seeing the event from the position where he allegedly
2 stood. We will ask the Trial Chamber to allow us to
3 show this videotape as evidence. By making this
4 videotape, we followed the allegations of the
5 Prosecution and we submit that that statement is
6 untruthful, because the witness was not objectively
7 able to see what he claims he saw.
8 Regarding the amended indictment, points 12
9 to 15, it differs from the original one insofar as the
10 factual events have been described differently. In
11 doing so, the Prosecution has indicated the direction
12 of movement of the victims by saying that they were
13 moving by Vlatko Kupreskic's house, whereas earlier, in
14 the original indictment, it said they were moving
15 towards the woods. This change is of first rate
16 importance to the Defence, because we feel that whether
17 the accused Vlatko Kupreskic could have perpetrated
18 these acts depends very much on the locations and,
19 therefore, this change of location now places Vlatko
20 Kupreskic in a position when he has to defend himself
21 quite differently from the original indictment.
22 In his submission of 5 March, the Prosecution
23 has responded to this objection, saying that the
24 description has been made more specific, but that
25 thereby the direction of movement has not been
1 changed. The Prosecution alleges that this was
2 essential for the indictment so as to place the victims
3 in the line of fire -- the Defence and the Prosecution,
4 with respect to this particular point, that is, whether
5 a change of direction of movement has been changed or
6 not, we differ, because we continue to claim that the
7 place has been changed as a result and that the
8 statement of the only witness offered by the
9 Prosecution does not show that they were passing by the
10 house, nor has the Prosecution offered any new evidence
11 to confirm that allegation.
12 The Prosecutor probably knows that there are
13 two roads leading up to upper Ahmici. One passes by
14 the house of Vlatko Kupreskic --
15 JUDGE CASSESE: I wonder if you could
16 confine yourself to matters to be dealt with at this
17 stage? You are raising matters which are to be
18 discussed at trial, so please do not go into questions
19 of evidence, facts and so on. You know that for the
20 confirmation of the -- non-confirmation of the
21 amendment to the indictment, only a prima facie case is
22 required, so, please, therefore, confine yourself to
23 dealing with these particular matters. Thank you.
24 MR PAR: Your Honours, I shall try and be
25 more concise. It is my opinion that we are talking
1 about the proposal to amend the indictment under points
2 12 to 15. The Prosecutor has made certain changes
3 which we feel it has not substantiated, and I am trying
4 to show why the change in the description is essential
5 and why the Defence requests that this be rejected,
6 because we feel that the event has been changed -- the
7 description of the event has been changed without being
8 corroborated by additional evidence, and that is why
9 I have spoken at maybe greater length, because the
10 Defence would like this point to be cleared up.
11 Also, the position of the Defence is such
12 that we feel that our defendant, Vlatko Kupreskic, who
13 is now in custody, who is physically of impaired health
14 and who is asking this Trial Chamber that the evidence
15 submitted against him should be dealt with as soon as
16 possible, because, for him, it is very important how
17 long the proceedings will last in view of his physical
18 condition and, for him, detention has highly
19 unfavourable consequences.
20 I will conclude my statement by saying that,
21 for these reasons, we will submit a motion for the
22 release of Vlatko Kupreskic and I feel that, in the
23 specific case, which can be seen from an analysis of
24 these points, that the charges against him have been
25 made only because the army was in his house and that it
1 was from his house that some shots were fired and that
2 is why the indictment is being linked to Vlatko
3 Kupreskic. Therefore, the Defence of Vlatko Kupreskic
4 proposes to the Trial Chamber that the request of the
5 Prosecution for amending the indictment be rejected.
6 JUDGE CASSESE: Thank you. Counsel for
7 Vladimir Santic?
8 MR PAVKOVIC: Mr President, your Honours,
9 there are three points which I shall try, within the
10 time limit allotted to us, to raise. In the first
11 place, the Defence counsel is grateful to the Trial
12 Chamber for giving us this opportunity to review issues
13 regarding the form of the indictment -- in spite of the
14 position of the Prosecution referring to Article 47.
15 It is my opinion that the Prosecutor is formally right
16 when it considers it to be its exclusive right to shape
17 the indictment, but I would like to remind the
18 Prosecutor that, for him, as for all of us participants
19 in the trial, the Rules oblige us to carry out an
20 expeditious trial and the right you have given us is a
21 right which goes in line with this idea of a speedy and
22 efficient trial and that is why I consider your
23 decision to be quite in order and acceptable. That is
24 one point I wanted to make.
25 A second point: with respect to the request
1 of the Prosecution to amend the indictment dated
2 9 February this year, the Defence has already, in its
3 written submission, presented its views regarding this
4 request for amending the indictment, and, respecting
5 the time limit, I do not wish to repeat what we said
7 I just wish to draw attention to the
8 following: on page 4 of our response, in sentence 2, a
9 printing error has been made, so although the meaning
10 of the text is clear, will you please take note of
11 this? It says there, "Are also based on" and what
12 should be written is "are also not based on". This
13 corresponds to the substance of the text that precedes
14 this paragraph.
15 What is it I wish to point out? We heard the
16 Prosecutor -- that the material submitted in support of
17 amending the indictment refers to evidence in support
18 of the conviction that my defendant also committed the
19 crimes that the Prosecutor has charged him with. One
20 does not have to be a legal expert. It is sufficient
21 to read the witness statement, which the Prosecutor
22 intends to offer to the court in order to support their
23 allegations to come to the conclusion that what he says
24 is simply a speculation.
25 Not one of the witnesses offered by the
1 Prosecution has confirmed that my defendant, my client,
2 has committed the crimes described in the amended
3 indictment under paragraphs 9, 10, 20 and 21. When
4 talking about the alleged crimes committed by my client
5 as described in paragraphs 16 to 19, again, the
6 allegation of the Prosecution cannot be confirmed.
7 There is only a single witness who speaks about my
9 I accept, Mr President, your remark and
10 I will not analyse the statement of that witness.
11 However, I must draw attention to the fact, because the
12 Prosecutor responded on 5 February to our reply, by
13 saying that these are accusations contained in the
14 request which are substantive to the indictment and
15 which this court has confirmed -- that is the original
16 indictment. I should just like to remind the
17 Prosecutor that in the meantime certain qualitative
18 changes have taken place, which seriously call in
19 question the statement of this witness.
20 My third point, and one that I wish to
21 underline in particular: in the country I come from,
22 and which relies on the European legal tradition, and
23 in my own modest knowledge of the legal system of the
24 Prosecutor, I have not found evidence of the
25 Prosecution threatening with accusations, as he has
1 done in his brief in support of the request for
2 amending the indictment. The Prosecutor does not
3 announce future incriminations whereby he is already
4 affecting -- further affecting the already impaired
5 health of my client.
6 The materials submitted are dated 5 February
7 this year, so these are very fresh knowledge that he
8 has, only four days preceding the compiling of this
9 request, and he says that he will be submitting
10 additional indictments, but on the basis of what
11 material and how long should we wait for these new
12 indictments to be issued?
13 I submit that the request of the Prosecutor
14 for amending the indictment be rejected, because my
15 client has not committed a single crime mentioned in
16 this request. Thank you, your Honours.
17 JUDGE CASSESE: Thank you. Before I pass on
18 to the next legal counsel, may I apologise for reading
19 from a wrong list of indictees and therefore Defence
20 counsel. It actually properly would be Josipovic after
21 Kupreskic and then Papic and Santic. I apologise, this
22 was a wrong list.
23 My second point is you know there is no legal
24 system to be applied by the Prosecutor as distinct from
25 the legal system which must be applied by the Defence
1 and the Tribunal. There is only one legal system,
2 which is a body of law, which we have to apply here in
3 this International Criminal Tribunal, and it is based
4 on our Statute, our Rules of Procedure and Evidence and
5 the general principle of -- principles of criminal law
6 as adopted in all major legal systems.
7 I now call upon the legal counsel for
9 MR SUSAK: Mr President, your Honours,
10 I would like to abide by my response made as the
11 Defence counsel in response to the request of the
12 Prosecution for amending the indictment. In paragraphs
13 9, 10, 20 and 21 of the amended indictment, in my view,
14 there is no proof -- no evidence that Drago Josipovic
15 committed the acts he is charged with. There is not a
16 single witness statement that would accuse him of those
18 However, I wanted to say something else,
19 since the previous speakers have already commented on
20 this, especially colleagues Radovic and Pavkovic.
21 I will be very brief in my comments with regard to
22 these amendments. In the first place, I think there is
23 no individual description of any one of these criminal
24 offences. Then, the actual place or time of the act
25 has not been indicated. I think these are
1 generalisations and there is no specification of the
2 circumstances which would describe the actual criminal
3 offence with which Drago Josipovic is charged.
4 As regards paragraph 20 of the amended
5 indictment, it is my view that the Prosecutor is
6 familiar with the statement of witness Fatima Ahmic,
7 because they have already referred to evidence
8 submitted in the Blaskic case, and it emerges from that
9 that Drago Josipovic had a positive attitude towards
10 the Muslims. Therefore, I consider that this paragraph
11 is unfounded, because, in addition to what I have said,
12 there is no other witness statement that would show
13 that this crime was committed by Drago Josipovic.
14 As for paragraph 21, it is confusing and
15 vague, because it follows from it that Drago Josipovic
16 committed and aided and abetted in a particular crime,
17 so two forms of a commission of an act cannot be
18 attributed to a single perpetrator. The more so, as
19 here the legal descriptions are given rather than the
20 description of the actual act. Therefore, I propose
21 that the request be rejected, except that we do support
22 the dropping of the reference to an international
23 conflict. Thank you.
24 JUDGE CASSESE: Thank you. Counsel for
25 Dragan Papic, please.
1 MR PULISELIC: Your Honours. The accused,
2 Dragan Papic, and I as his Defence counsel, find
3 ourselves in a slightly different position than the
4 majority of the other accused and their Defence
5 counsels with respect to the amended indictment,
6 because the amended indictment which this Trial Chamber
7 is going to rule on, that is to accept it or reject it,
8 my client, my defendant, Dragan Papic, it seems to me
9 is being charged with a smaller quantity -- a smaller
10 amount of criminal activity than in the indictment from
11 1995. Namely, according to that original indictment,
12 Dragan Papic was charged with a number of offences
13 coming under Articles 2 and 3 of the Statute, whereas
14 now he is charged under Article 5(h) only of the
15 Tribunal's Statute.
16 Perhaps it may therefore, at first glance,
17 appear strange that I, as Defence counsel, am not
18 supportive of this amended indictment, because, even
19 though it is more favourable for my client, Dragan
20 Papic, especially with respect to the one from 1995,
21 and in my brief, in response to the Prosecutor's
22 request, I have proposed that it be rejected. This
23 does not mean to say that I support or accept the 1995
24 indictment, but I will not go into that today, as that
25 is not the subject of this hearing.
1 I should just like to refer, with a couple of
2 sentences, to the reasons why the Defence finds that
3 the amended indictment is not acceptable with regard to
4 Dragan Papic. In paragraph 20, it is stated that
5 Dragan Papic persecuted the Bosnian Muslim inhabitants
6 of Ahmici, Santici, on political, religious and racial
7 grounds, by planning and organising an attack, which
8 was designed to remove all Bosnian Muslims from the
10 However, from the material that has been
11 disclosed to the Defence, accompanying the amended
12 indictment, and which should provide factual support in
13 favour of the indictment, it does not emerge that
14 Dragan Papic had planned or organised the ethnic
15 cleansing of Bosnian Muslims. In these materials,
16 there is not a word to that effect.
17 Finally, Dragan Papic, as an ordinary
18 private, an ordinary soldier with an insignificant role
19 could not have planned and organised such activities,
20 even if he had wanted to -- the activities which are
21 allegedly described as ethnic cleansing of Bosnian
23 Furthermore, the supporting materials for the
24 amended indictment do not point to evidence of Dragan
25 Papic participating in the systematic killing of
1 Bosnian Muslims, as is stated in paragraph 21(a) of the
2 indictment. Also, there is nothing in the material to
3 show that Dragan Papic destroyed Bosnian Muslim homes
4 and property, as is alleged in paragraph 21(b) of the
5 amended indictment.
6 Furthermore, not a single witness mentioned
7 in the supporting materials, and several of them
8 mention Dragan Papic, not one of them confirms the
9 allegation of the indictment that Dragan Papic had in
10 any way participated in organising the detention and
11 expulsion of Bosnian Muslims from Ahmici and Santici as
12 stated in paragraph 21(c) of the indictment.
13 Paragraph 22 of the amended indictment,
14 amongst other things, refers to paragraph 9, but from
15 the supporting material provided with the indictment,
16 it does not follow that Papic Dragan had indeed
17 participated in military training and arming or in the
18 evacuation of Bosnian Muslims on the night before the
19 attack, in organising the HVO soldiers, in preparing
20 his house and the house of his relatives for
21 operations, or in preparing other locations to be used
22 for attack.
23 All these alleged activities of Dragan Papic
24 referred to have been qualified by the Prosecution as a
25 crime against humanity, punishable under Article 5(h)
1 of the Tribunal's Statute; that is, as persecution on
2 political, racial or religious grounds. Not a single
3 part of the amended indictment shows in what way Dragan
4 Papic had specifically participated in any one of these
5 acts that are attributed to him. One cannot see how he
6 planned or organised the persecution of Bosnian
7 Muslims; one cannot see how he had systematically
8 killed Bosnian Muslims, when the indictment does not
9 mention any individual who whom he had allegedly
11 So, the Defence does not understand what
12 there is to show that Dragan Papic participated in the
13 demolition of Bosnian Muslim homes and their property.
14 If there is no indication how he did that, whose houses
15 and property he destroyed, and if the supporting
16 material does not make any reference to these specific
17 acts, therefore, in the opinion of the Defence, the
18 supporting material disclosed to the Defence in support
19 of the amended indictment does not provide the
20 Prosecutor with any argument to charge Dragan Papic
21 under Article 5(h) of the Statute that is for the
22 persecution of Bosnian Muslims on political, racial or
23 religious grounds.
24 That is why the Defence proposes, as it has
25 done in its written brief, that the request of the
1 Prosecution for amending the indictment be rejected,
2 because there is no prima facie case in favour of such
3 an amendment. Thank you.
4 JUDGE CASSESE: I would like to ask now the
5 Prosecutor whether there is any -- it would like to
7 MR BOWERS: Yes, your Honour, we have a few
8 comments. With regard to the persecution count itself,
9 what the Prosecution will show at trial is that the
10 attack on Ahmici had as its primary purpose the ethnic
11 cleansing of the Muslim population. By virtue of that
12 attack where a significant portion of the civilian
13 population was killed, and Muslim homes were burnt to
14 the ground, Muslim livestock was slaughtered and the
15 entire Muslim population was deported out of the
16 village, our position is that there is strong
17 circumstantial evidence that this was coordinated and
19 Our position with regard to the individual
20 defendants is that they were all, Article 7(1), aiders
21 and abettors to this overall strategy and our
22 submission would be that there is more than adequate
23 circumstantial evidence from the supporting material
24 given to the court to meet the threshold Rule 47
25 standard with regard to these allegations.
1 With regard to Mirjan Kupreskic specifically,
2 there is no mistake in the indictment. That is
3 absolutely an intentional charging decision. Our
4 position there is that Mirjan and Zoran approached the
5 Ahmic home with the intention of killing all the
6 inhabitants and burning the home to the ground. That
7 is precisely what they did. They are aiders and
8 abettors of each other and Mirjan would not have had to
9 pull the trigger on any weapon to be guilty of the
10 murder as an aider and abettor. That is our theory and
11 again we think we have more than sufficient evidence to
12 meet the Rule 47 threshold standard.
13 With regard to Vlatko Kupreskic and the
14 sightings, as the court correctly noted, most of the
15 arguments that the Defence offered regarding the
16 sightings of Vlatko Kupreskic's house and the shooting
17 coming from that house, most of those arguments have to
18 do with evidence at trial. I would just reiterate we
19 have not changed the route of escape. We simply wanted
20 to make it clear that our position is that there was
21 firing coming from the area of Vlatko Kupreskic's home,
22 and it was that firing that ended up killing the one
23 individual and wounding the other.
24 With regard to Dragan Papic, we would point
25 out that there has been extensive new evidence
1 presented in the single declaration with regard to his
2 participation. It is important to note that, in the
3 attack of October 20th, there is an allegation that he
4 is the only person that killed someone in that initial
5 attack on Ahmici. Our position will be that that
6 October attack started the events that led to the
7 eventual planning and coordination of the final attack
8 on Ahmici which ethnically cleansed it.
9 It is important to note that the allegation
10 is that Dragan Papic was a sniper at that time and
11 actually killed someone. It goes to his expertise, his
12 training. We have allegations that he was a member of
13 the HVO, wore a black and camouflage uniform, had a
14 sniper rifle, and that after October 1992, he actually
15 forced Muslim males to report to the HVO on a daily
16 basis. That also is in the supplementary supporting
18 He was seen in possession of automatic
19 weaponry. On the morning of the attack, there was
20 actually sniper fire seen originating from the window
21 of his father's home, where he lived. There were
22 numerous soldiers with camouflage and black uniforms
23 running around his particular house. There was a large
24 machine-gun in front of his house, which indicates
25 prior preparation, and then we have the actual
1 sightings of him on the morning of the actual attack,
2 where he is seen in a doorway in front of a body. He
3 is seen with numerous soldiers, appearing to lead them
4 at different times.
5 That is more than sufficient evidence to show
6 that, again, he is an aider and abettor in this overall
7 persecution charge and, again, he could be found guilty
8 without even pulling the trigger on a weapon, if he is
9 found to be an aider and abettor.
10 We are prepared to address any other specific
11 comments that the court may entertain. We would just
12 point out that we have a great concern here, in that
13 I think that, to a certain extent, this hearing has
14 been misused by the Defence, when it singles out
15 individual witnesses and identifies them by name and
16 attacks their credibility. Many of these witnesses are
17 in very precarious situations, subjected to continuing
18 harassment and intimidation, and it is just
19 inappropriate for this threshold inquiry to involve
20 these sorts of credibility attacks, which only have a
21 role in the trial itself. As the court knows, there
22 are instances when we present supporting material with
23 witnesses for the confirmation of the indictment. When
24 we actually proceed to trial, those individuals may not
25 even testify. So, if the court has any enquiries with
1 regard to the specifics of particular witnesses, we
2 would definitely request that that be in camera. Thank
3 you, your Honours.
4 JUDGE CASSESE: Thank you. Before we
5 adjourn in about half an hour and make our ruling on
6 this matter, I think we should deal with other matters
7 -- some of the other matters that I indicated at the
8 outset of our hearing.
9 First of all, the Defence counsel request for
10 assignment of counsel. Now, we have noted that various
11 requests were filed on 10 and 17 February 1998 by each
12 of the accused, save Mirjan Kupreskic, requesting the
13 assignment to them of counsel who do not speak one of the two
14 working languages of the International Criminal
15 Tribunal, namely English or French. The court has
16 decided to authorise the Registrar to assign to each of
17 the accused, counsel of their choice -- to each of the
18 accused, counsel of their choice, even if that counsel
19 does not speak either of the two working languages of
20 the International Criminal Tribunal, provided, however,
21 that should the accused later seek the assignment of
22 co-counsel, such co-counsel must speak one of the two
23 working languages of the International Tribunal. This
24 is our ruling.
25 As for the question of request by Vlatko
1 Kupreskic, this issue will be dealt with later on in
2 our status conference. I will move on to a third issue
3 -- one of the five issues I mentioned this morning,
4 namely, the Defence motion on the form of indictment.
5 In this respect, I would like to ask Defence counsel if
6 they wish to continue with this motion. Actually,
7 there were four motions. I wonder whether they need to
8 be amended, or whether Defence counsel intend to go
9 ahead with these motions? I wonder whether Defence
10 counsel are prepared to take a stand on this issue, or
11 whether we should put it off until after the status
12 conference. Is there any position by Defence counsel
13 on these four motions on the form of indictment?
14 I think probably you would like to discuss this issue
15 after our ruling on whether or not we grant the motion
16 of the Prosecutor on the amendment of the indictment.
17 Alright, let us put it off until we resume. (Pause).
18 The court is now in a position to make a
19 ruling on the Prosecutor's motion for leave to amend
20 the indictment. The court has decided to grant this
21 motion and we will issue an order to this effect where
22 we set out the reasons for our decision.
23 That means that the accused will have to
24 plead guilty or not guilty to the new charge of
25 persecution. I wonder whether the Defence counsel are
1 prepared to propose a time for the guilty or not guilty
2 plea? You will need some time to consult with your
3 clients and, also, I understand you have not yet been
4 given the text of the revised amendment in
5 Serbo-Croatian -- is that correct? I issued
6 instructions this morning to the effect that a
7 translation into Croatian should be prepared by
8 12 o'clock at the latest. (Pause).
9 To my regret, I have been told that the
10 translators will not be in a position to provide the
11 Croatian translation of this document before tomorrow
12 afternoon. So let us now have a coffee break so we
13 will adjourn for 20 minutes and then maybe, when we
14 come back --
15 MR RADOVIC: Your Honours, we have very often
16 encountered the problem of translation. We expected
17 that something like this would happen and we have
18 managed to translate the amended indictment and our
19 clients have been advised of the contents of the
20 amended indictment, which further means that they are
21 ready, today, for the purpose of expediting the trial
22 -- they are ready to enter a plea?
23 MR V KUPRESKIC: Your Honour, I would kindly
24 ask you to let me address the court in just a few
25 words, please. I will be very brief.
1 JUDGE CASSESE: What particular topic -- on
2 what particular subject?.
3 MR V KUPRESKIC: Well, I would like to say
4 something about everything that has been said today.
5 I would just like to say a few words about that.
7 JUDGE CASSESE: Alright, I grant you leave
8 to address the court.
9 MR V KUPRESKIC: First of all, let me thank
10 this honourable Chamber for having enabled me to
11 speak. I would also like to thank you for having
12 assigned counsel to me and, furthermore, just because
13 of these situations, this particular case, as my case,
14 my Defence counsel have offered very good evidence,
15 very precise evidence, as have other Defence counsel.
16 We have, therefore, enabled us to be heard today and
17 I would like to say thank you on behalf of my
18 colleagues here, to all of you.
19 I would kindly ask you, as human beings, and
20 then as judges -- I would appeal to your understanding
21 of my situation. I am 100 per cent innocent and I am
22 certain that, because of my health, I will not be able
23 to wait until your decision -- until your finding of
24 not guilty, because it may take a few months or maybe
25 even a year. We have very strong evidence -- we even
1 have a strong alibi of the witness that has been
2 proffered by the Prosecution, of a Muslim woman, by the
3 name of Morisa Strmonja. Therefore, with full
4 responsibility, let me state here before you that you
5 have a witness here -- a witness to the Dayton Accords
6 -- which I can prove with numerous proofs, a lot of
7 evidence and I have also witness statements by Muslims
8 that can prove that.
9 My life and my conduct is all a result or
10 consequence of the Dayton Accords. I do not think that
11 you will allow that agreement -- and I hope we are all
12 in favour of that agreement -- you will not allow this
13 agreement to be tried here before the court.
14 Therefore, let me kindly ask you once again, let me
15 appeal to you not to let -- not to be tried -- not to
16 enter this trial without necessity. I will therefore
17 ask you to consider, as quickly as possible, all the
18 evidence and try to conclude my case as soon as
19 possible, perhaps even today.
20 JUDGE CASSESE: I am afraid we are not in a
21 position to do so, because we cannot start the trial --
22 there are pre-trial proceedings which we have to go
23 through. But we are fully sympathetic to your request
24 for an expeditious trial. I can assure you that the
25 trial will start as soon as possible. It is in the
1 interests of justice and in the interests of your right
2 to be tried as quickly as possible. I understand from
3 Defence counsel that all Defence counsel would be ready
4 to move on to their next stage where all the defendants
5 will be asked to plead guilty or not guilty to the new
6 charge. Are you prepared to do so even, say, in half
7 an hour, after we take a recess, so that we can move on
8 to that particular phase? And then we would have the
9 status conference to organise the next steps to be
10 taken before trial commences. Would you be prepared to
11 do so after, say, half an hour -- at quarter to 12 --
12 when we resume our hearing? Yes? The Prosecutor has
13 no objection?
14 MR BOWERS: No.
15 JUDGE CASSESE: We stand adjourned for half
16 an hour until quarter to 12.
18 (A short break)
20 JUDGE CASSESE: I apologise for the
21 five-minute delay and we may now move on to the next
22 issue, namely, the entry of a plea by the various
23 defendants. I understand that all the Defence counsel
24 had an opportunity to talk to their clients and to
25 translate into Croatian the relevant parts of the
1 indictment. However, since we are very keen on the
2 rights of the accused and we think that the rights of
3 the accused must be fully respected, we have decided to
4 ask the Registrar to read out, slowly, the relevant
5 parts of the amended indictment so that all the
6 defendants will be able to follow in Croatian -- the
7 Croatian translation. After that, I will ask all the
8 various defendants --
9 MR RADOVIC: Your Honours, our clients are
10 familiar with the entire indictment and not just the
11 relevant parts. They are now prepared to waive their
12 right to have the indictment read to them in its
13 entirety and are ready to proceed to the plea.
14 JUDGE CASSESE: Thank you so much. I take
15 it that all the defendants are fully aware of the
16 indictment and I also understand that they had adequate
17 time to confer with their Defence counsel before the
18 initial appearance. Now, I will ask now each defendant
19 to enter a plea of guilty or not guilty, and I would
20 like to ask them to use the following form -- to say
21 either "I plead guilty" when I read out a count,
22 or "I plead not guilty".
23 Let me start with Mr Zoran Kupreskic. Could
24 you please rise and state your name and date of birth?
25 MR Z KUPRESKIC: Your Honours, I am Zoran
1 Kupreskic. I was born 23 September 1958.
2 JUDGE CASSESE: I will read out count 1 of
3 the amended indictment: A crime against humanity
4 punishable under Article 5(h) (persecution on
5 political, racial or religious grounds) of the Statute
6 of the Tribunal. Do you plead guilty or not guilty?
7 MR Z KUPRESKIC: Your Honours, I am not
8 guilty according to the previous indictment, I am not
9 guilty according to this indictment, and I am not
10 guilty even if there would be 100 million new
12 JUDGE CASSESE: Thank you. Count 2:
13 A crime against humanity punishable under Article 5(a)
14 (murder) of the Statute of the Tribunal.
15 MR Z KUPRESKIC: Not guilty.
16 JUDGE CASSESE: Count 4: crime against
17 humanity punishable under Article 5(a) (murder) of the
18 Statute of the Tribunal.
19 MR Z KUPRESKIC: Not guilty.
20 JUDGE CASSESE: Count 6: crime against
21 humanity punishable under Article 5(a) (murder) of the
22 Statute of the Tribunal.
23 MR Z KUPRESKIC: Not guilty.
24 JUDGE CASSESE: Count 8: crime against
25 humanity, punishable under Article 5(a) (murder) of the
1 Statute of the Tribunal.
2 MR Z KUPRESKIC: Not guilty.
3 JUDGE CASSESE: Count 10: a crime against
4 humanity punishable by Article 5(i) (inhumane acts) of
5 the Statute of the Tribunal.
6 MR Z KUPRESKIC: Not guilty.
7 JUDGE CASSESE: Thank you. Mr Mirjan
9 MR M KUPRESKIC: Your Honours, I am Mirjan
10 Kupreskic, born 21 October 1963.
11 JUDGE CASSESE: Thank you. Count 1: Crime
12 against humanity punishable under Article 5(h) of the
13 Statute of the Tribunal (persecution on political,
14 racial or religious grounds).
15 MR M KUPRESKIC: Your Honours, absolutely not
16 guilty for anything that I am charged with.
17 JUDGE CASSESE: Thank you. Count 2: crime
18 against humanity punishable under Article 5(a) of the
19 Statute of the Tribunal (murder).
20 MR M KUPRESKIC: Not guilty.
21 JUDGE CASSESE: Count 3: violation of the
22 laws or customs of war punishable under Article 3 of
23 the Statute of the Tribunal and recognised by Article
24 3(1)(a) (murder) of the Geneva Conventions.
25 MR M KUPRESKIC: Not guilty.
1 JUDGE CASSESE: Count 4: crime against
2 humanity punishable under Article 5(a) of the Statute
3 of the Tribunal (murder).
4 MR M KUPRESKIC: Not guilty.
5 JUDGE CASSESE: Count 6: crime against
6 humanity punishable under Article 5(a) of the Statute
7 of the Tribunal (murder).
8 MR M KUPRESKIC: Not guilty.
9 JUDGE CASSESE: Count 8: crime against
10 humanity punishable under Article 5(a) of the Statute
11 of the Tribunal (murder).
12 MR M KUPRESKIC: Not guilty.
13 JUDGE CASSESE: Count 10: crime against
14 humanity punishable under Article 5(i) (inhumane acts)
15 of the Statute of the Tribunal.
16 MR M KUPRESKIC: Not guilty.
17 JUDGE CASSESE: Thank you. Mr Vlatko
19 MR V KUPRESKIC: I am Vlatko Kupreskic, born
20 1 January 1958. I have a high education and from my
21 birth I have been 100 per cent handicapped.
22 JUDGE CASSESE: Count 1: Crime against
23 humanity punishable under Article 5(h) of the Statute
24 of the Tribunal (persecution on political, racial or
25 religious grounds).
1 MR V KUPRESKIC: Not guilty.
2 JUDGE CASSESE: Count 12: crime against
3 humanity punishable under Article 5(a) of the Statute
4 of the Tribunal (murder).
5 MR V KUPRESKIC: Of course, I am not guilty.
6 JUDGE CASSESE: Count 14: crime against
7 humanity punishable under Article 5(i) of the Statute
8 of the Tribunal (inhumane acts).
9 MR V KUPRESKIC: Not guilty.
10 JUDGE CASSESE: You can sit. Mr Drago
12 MR JOSIPOVIC: Your Honours, I am Drago
13 Josipovic, born 14 February 1955.
14 JUDGE CASSESE: Count 1: Crime against
15 humanity punishable under Article 5(h) of the Statute
16 of the Tribunal (persecution on political, racial or
17 religious grounds).
18 MR JOSIPOVIC: Not guilty.
19 JUDGE CASSESE: Count 16: crime against
20 humanity punishable under Article 5(a) of the Statute
21 of the Tribunal (murder).
22 MR JOSIPOVIC: Not guilty.
23 JUDGE CASSESE: Count 18: crime against
24 humanity punishable under Article 5(i) of the Statute
25 of the Tribunal (inhumane acts).
1 MR JOSIPOVIC: Not guilty.
2 JUDGE CASSESE: Count 19: violation of the
3 laws or customs of war punishable under Article 3 of
4 the Statute of the Tribunal and recognised by
5 Article 3(1)(a) of the Geneva Conventions (cruel
7 MR JOSIPOVIC: Not guilty.
8 JUDGE CASSESE: Thank you. Mr Dragan Papic.
9 MR PAPIC: Your Honour, I am Dragan Papic,
10 born 15 July 1967 in Santici.
11 JUDGE CASSESE: Crime against humanity, --
12 count 1: Crime against humanity punishable under
13 Article 5(h) of the Statute of the Tribunal
14 (persecution on political, racial or religious
16 MR PAPIC: I plead not guilty.
17 JUDGE CASSESE: Thank you. Mr Vladimir
19 MR SANTIC: Your Honours, I am Vladimir
20 Santic, born 1 April 1958.
21 JUDGE CASSESE: Count 1: Crime against
22 humanity punishable under Article 5(h) of the Statute
23 of the Tribunal (persecution on political, racial or
24 religious grounds).
25 MR SANTIC: Not guilty.
1 JUDGE CASSESE: Count 16: crime against
2 humanity punishable under Article 5(a) of the Statute
3 of the International Tribunal (murder).
4 MR SANTIC: Not guilty.
5 JUDGE CASSESE: Count 18: crime against
6 humanity punishable under Article 5(i) of the Statute
7 of the International Tribunal (inhumane acts).
8 MR SANTIC: Not guilty.
9 JUDGE CASSESE: Count 19: violation of the
10 laws or customs of war punishable under Article 3 of
11 the Statute of the Tribunal and recognised by Article
12 3(1)(a) of the Geneva Conventions (cruel treatment).
13 MR SANTIC: Not guilty.
14 JUDGE CASSESE: Thank you. We are now in a
15 position to proceed to our status conference.
17 JUDGE CASSESE: Any requests before we move
18 to the status conference, which will take place in
19 camera? Are there any requests from the Defence
20 counsel or from the Prosecutor?
21 MR BOWERS: No, your Honour, no requests from
22 the Prosecutor.
24 (Hearing adjourned)