Tribunal Criminal Tribunal for the Former Yugoslavia

Page 103

1 Monday, 10 March 1998

2 (10.00am)

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

Page 104

1 on behalf of Vlatko Kupreskic, together with colleague

2 Par.

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

Page 105

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

6 conference.

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

16 that.

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

Page 106

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

Page 107

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

Page 108

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

Page 109

1 were.

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.


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

Page 110

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,

Page 111

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

18 Prosecution.

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

Page 112

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

5 Kupreskic.

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

25 motions.

Page 113

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,

Page 114

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

23 Muslims.

24 If necessary, the Defence can, in more

25 detail, analyse those witness statements and other

Page 115

1 evidence offered by the Prosecution in support of this

2 count.

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

Page 116

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

16 indictment.

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

Page 117

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

Page 118

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

Page 119

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

Page 120

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

Page 121

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

6 then.

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

Page 122

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

8 client.

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

Page 123

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

Page 124

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

8 Josipovic.

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

17 crimes.

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

Page 125

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.

Page 126

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.

Page 127

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

9 area.

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

22 Muslims.

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

Page 128

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)

Page 129

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

10 killed.

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

Page 130

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

6 respond?

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

18 planned.

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.

Page 131

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

Page 132

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

17 material.

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

Page 133

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

Page 134

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

Page 135

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

Page 136

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.

Page 137

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.

6 (Pause).

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

Page 138

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

Page 139

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?


15 JUDGE CASSESE: We stand adjourned for half

16 an hour until quarter to 12.

17 (11.15am)

18 (A short break)

19 (11.50am)

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

Page 140

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

Page 141

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

11 indictments.

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

Page 142

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

8 Kupreskic.

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.

Page 143

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

18 Kupreskic.

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).

Page 144

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

11 Josipovic.

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).

Page 145

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

6 treatment).

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

15 grounds).

16 MR PAPIC: I plead not guilty.

17 JUDGE CASSESE: Thank you. Mr Vladimir

18 Santic.

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.

Page 146

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.

16 (12.05pm)

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.

23 (12.10pm)

24 (Hearing adjourned)