1. 1 Thursday, 11th November, 1999

    2 [Open session]

    3 [The accused entered court]

    4 --- Upon commencing at 9.35 a.m.

    5 THE REGISTRAR: IT-95-16-T, the Prosecutor

    6 versus Zoran Kupreskic, Mirjan Kupreskic, Vlatko

    7 Kupreskic, Drago Josipovic, Dragan Papic and Vladimir

    8 Santic.

    9 JUDGE CASSESE: Let me start by apologising

    10 for this regrettable delay. I had yesterday said very

    11 clearly that we would start at 9.00 but there was a

    12 misunderstanding.

    13 Let me also tell you now that the schedule

    14 will be as follows. We'll have a first break at

    15 11:00 -- well, now five past 11.00 until 11.20. Very

    16 short break. I'm so sorry. Then we will resume at is

    17 11.20 for Counsel Puliselic, who has only one hour,

    18 until 12.20. Then a break of 10 minutes and then we

    19 will resume again at 12.30 until 2.00. It's a very

    20 tight schedule. I'm so sorry, but we can't do

    21 otherwise.

    22 Now, I think it's the turn of -- yes,

    23 Counsel Radovic?

    24 MR. RADOVIC: Mr. President, I have a

    25 question. Yesterday we made an oral proposal for

  2. 1temporary release while the Defence counsel of the

    2 third accused submitted this request in writing. Does

    3 that mean that we have to make our submissions in

    4 writing too or is our oral proposal sufficient?

    5 JUDGE CASSESE: Your oral proposal is

    6 sufficient, and I was about to say that we have

    7 carefully considered the three motions, two oral

    8 motions, one written motion for provisional release

    9 concerning Zoran, Mirjan, and Vlatko Kupreskic.

    10 We rule that they must be denied, because no

    11 exceptional circumstances is provided for in Rule 65

    12 are present.

    13 I would also like to add that the proposal or

    14 the idea floated by President McDonald in New York to

    15 the General Assembly and the Security Council, based on

    16 a proposal by a group of experts that has recently

    17 visited the U.N. premises here at our Tribunal, that

    18 proposal relates to a possibility for provisional

    19 release at the initial stage, namely at initial

    20 appearance.

    21 If that proposal is accepted by the Plenary,

    22 then the accused, who has surrendered voluntarily to

    23 the Tribunal, may, at the initial appearance, request

    24 provisional release. It does not -- therefore, as I

    25 say, assuming that proposal is accepted by the plenary

  3. 1meeting of Judges, that idea does not apply to persons

    2 who are here in detention during trial.

    3 Now, in our case we -- now, today we close

    4 our proceedings so, therefore, it's a very late stage.

    5 We can now prove to our next Defence

    6 counsel. I think Counsel Susak. It is your turn, if

    7 I'm not wrong.

    8 MR. SUSAK: Thank you, Mr. President. It is

    9 my turn.

    10 Your Honours, my learned colleagues in the

    11 Prosecution, Drago Josipovic, who is on trial here

    12 volunteered to come before this Tribunal, in the belief

    13 that truth and justice would prevail here.

    14 Drago Josipovic is being tried on the basis

    15 of an indictment from the 9th of February, 1998,

    16 according to which he, with the other accused, in the

    17 period from October 1992 to May 1993, committed crimes

    18 in the area of Ahmici.

    19 In the amended indictment, it is alleged that

    20 there was an armed conflict in the period from

    21 October 1992 until May 1993 between the HVO and the

    22 army of B and H, and according to the indictment, the

    23 HVO, on the 16th of April, 1993, attacked Vitez and the

    24 surrounding villages and that this was a highly

    25 coordinated operation by several hundred HVO soldiers.

  4. 1In this context, Drago Josipovic is charged

    2 with having committed the counts of persecution, as

    3 described in paragraphs 9, 10, 20, and 21 of the

    4 amended indictment, and this is characterised as a

    5 crime against humanity.

    6 Apart from this, Drago Josipovic is being

    7 charged that on the 16th of April, 1993, together with

    8 another accused, he attacked the home of Muzafer

    9 Puscul, and that he and Vlado Santic murdered Muzafer

    10 Puscul and took away his family forcibly. It is

    11 alleged in the indictment that Drago Josipovic and

    12 Vladimir Santic did this together with a group of

    13 soldiers.

    14 In the indictment this is characterised as a

    15 crime against humanity and a breach of the Laws and

    16 Customs of War.

    17 In my opinion, there is no evidence to prove

    18 that Drago Josipovic committed any of the crimes

    19 alleged against him in the amended indictment. This

    20 follows from the evidence presented before this Court.

    21 I will refer very briefly to the general part

    22 of the indictment; the specific part of the indictment;

    23 the evidence presented by the Prosecution, the Defence,

    24 and Court witnesses. Of course, I will try to be

    25 brief, and I will try not to repeat myself or to repeat

  5. 1what has already been said by my colleagues in their

    2 closing arguments.

    3 The Court has heard evidence which provides a

    4 factual basis for a final judgement which will be just

    5 and to evaluate the counts which -- or, rather, the

    6 root of these allegations and their significance.

    7 It should be mentioned that relations between

    8 Croats and Muslims deteriorated due to differing

    9 attitudes to the war in Croatia. This follows from the

    10 testimony of Zvonimir Cilic and Vlado Alilovic. It is

    11 for this reason, in relation to the Serbs, that the

    12 Croatian Community of Herceg-Bosna was established in

    13 November 1992, and in the following year the HVO and

    14 the military component were established.

    15 The first conflict between Muslims and Croats

    16 broke out on the 20th of October, 1992, and this was

    17 initiated by the Muslims as can be seen from the

    18 testimony of Fahrudin Ahmic, Abdulah Ahmic, Mehmed

    19 Ahmic, Zvonimir Cilic, and Vlado Alilovic.

    20 It follows from the testimony of these

    21 witnesses that there was a roadblock set up on the

    22 Vitez-Novi Travnik road, and it was set up by members

    23 of the Muslim armed forces from Ahmici, supported by

    24 units of Vrhovine, following the orders of the higher

    25 command.

  6. 1The Vitez-Novi Travnik communication was of

    2 strategic importance for the HVO, as follows from the

    3 testimony of Bryan Watters; Sefer Halilovic, who was a

    4 general of the army of BH; and Asim Dzambasovic, who

    5 was also an expert witness in this trial.

    6 This first conflict is important for Drago

    7 Josipovic, because certain conclusions can be drawn

    8 from it -- whether he was a member of the HVO or not --

    9 because the Prosecutor, in his closing argument,

    10 categorically claimed that Drago Josipovic was an

    11 active member of the HVO as a reservist.

    12 However, these categories were not quite

    13 clear to me, and in this connection I will mention that

    14 during the first conflict, Drago Josipovic's barn was

    15 torched. Witness CA, who is a Muslim, said that she

    16 helped put out the fire in Drago Josipovic's barn

    17 together with Avdo Becirevic, Fahrudin Ahmic, and Hazim

    18 Ahmic, who are all Muslims.

    19 This is important, because clear and specific

    20 conclusions can be drawn from it, that Drago Josipovic

    21 did not participate in the first conflict, that he was

    22 not an active member of the HVO, and that he had not

    23 been mobilised into the HVO at that time. This also

    24 shows that even in wartime, the neighbourly relations

    25 between Drago Josipovic and Fahran Ahmici, Witness CA,

  7. 1and witness CB were good.

    2 After the first conflict, there were

    3 negotiations, and this again concerns Drago Josipovic.

    4 In these negotiations, there was discussion of the

    5 return of Muslims to Ahmici and also the return of

    6 weapons. It is well known in history that a side that

    7 loses in a war lays down its weapons.

    8 The fact that this agreement was reached

    9 follows from the testimonies of Abdulah Ahmic,

    10 Witness B, Witness II, Witness FF, and Witness Q.

    11 The expert witness, Asim Dzambasovic, helped

    12 us in this respect because he said that the two sides

    13 in a conflict can agree that one side should lay down

    14 its arms.

    15 In this context, I should mention the

    16 confiscation of the rifle of Fahran Ahmic. Witness AH

    17 said that he took a rifle after the barracks belonging

    18 to the former JNA were taken, and together with Drago

    19 Josipovic, he used several barrels to make a rifle.

    20 Drago Josipovic and Fahran Ahmic together made a

    21 rifle.

    22 The witness also says that Nenad Santic took

    23 away Fahran Ahmic's rifle. However, she did not say to

    24 whom Nenad Santic gave this rifle, and this corresponds

    25 to the testimony of Witness CB, who also said that

  8. 1Nenad Santic took away Fahran Ahmic's rifle. However,

    2 it follows from Anto Bralo's testimony that he gave the

    3 rifle to Nikica Grebenar, who was in charge of putting

    4 people on guard duty in Zume. As to the request of

    5 Fahran Ahmic, the rifle was handed over to Drago

    6 Josipovic. This was said not only by Anto Bralo but

    7 also confirmed by witnesses Frano Kovac and Witness

    8 DH.

    9 Witness CB said that the fact that the rifle

    10 was found in Drago Josipovic's possession did not cause

    11 any tension between the two families; on the contrary,

    12 she added that Drago Josipovic visited Fahran Ahmic

    13 frequently, and vice versa. So they resolved the

    14 problem between themselves. Witness CB, who was

    15 present at these meetings, says that Drago Josipovic

    16 would have returned the rifle.

    17 I believe that at the time this rifle was

    18 taken away, Drago Josipovic did not know what would

    19 happen the following year, in April. He did not use

    20 the rifle to intimidate anyone.

    21 Let me add that Witness CB said that the

    22 rifle was taken away with a receipt, that it was handed

    23 over to the village guard; therefore, the rifle was

    24 taken away in an official manner, on the basis of an

    25 agreement to be used by the village guard.

  9. 1I believe that Drago Josipovic cannot be

    2 charged with this because the fact that he had a rifle,

    3 that he had a uniform, does not mean that he committed

    4 any crimes.

    5 The Prosecutor's claim that there were no

    6 members of the army of BH in Ahmici is not correct. It

    7 runs contrary to the testimony of Witnesses C, M, V,

    8 and Z. It also runs counter to the testimony of Asim

    9 Dzambasovic and Abdulah Ahmic.

    10 Abdulah Ahmic testified that Muslims of

    11 military age belonged to the Muslim Vitez Brigade, and

    12 that was the 325th Mountain Brigade, which had an

    13 organised command.

    14 Witness V said that there was an organised

    15 unit of the army of BH in Ahmici, and he referred to

    16 details contained in his diary, while Witness Y said

    17 that the staff of the 325th Mountain Brigade came back

    18 to Ahmici to help organise men and he says that several

    19 villages, on the 16th of April, 1993, took up positions

    20 in Ahmici near the mosque.

    21 It is the Prosecutor's contention that Drago

    22 Josipovic was a soldier and a member of the HVO, and

    23 that is because he was a member of the village guards.

    24 It is evident from the statement of Zvonimir

    25 Cilic that, prior to the establishment of the HVO,

  10. 1there had been village guards in the village.

    2 Initially, they were joint, comprising of Muslims and

    3 Croats, and after the first clash of the 15th of

    4 October, 1992, they separated. The witness Zvonimir

    5 Cilic stressed that in Rovna, in July 1992, the Muslims

    6 established their own government and the war command

    7 later in the same year, so that two governments, two

    8 police forces, and to armies functioned at the same

    9 time.

    10 The village guard in Santici was established

    11 spontaneously by the people, and there was just one

    12 person who was in charge, and that was according to an

    13 agreement between the men in question for distributing

    14 the guards, posting them on duty, and maintaining

    15 records.

    16 The village guards were organised in such a

    17 way that there were no horizontal or vertical links

    18 with the command, and this is obvious from the

    19 testimony of Mehmed Ahmic, Vlado Alilovic, Zvonimir

    20 Cilic, Fahrudin Ahmic, and Abdulah Ahmic.

    21 Witness DA stressed that the village guards

    22 did not have an official structure, nor did they have a

    23 commander, and Rudo Kurevija confirmed that there were

    24 volunteers from among the ranks of the village guards

    25 who volunteered to enlist with the HVO.

  11. 1It is obvious from the commands, on the order

    2 of Colonel Blaskic, that the village guards were

    3 actually outside the military setup; namely, these

    4 orders were not actually -- were not sent to the

    5 village guards, so that we cannot accept the

    6 Prosecutor's claim that the village guards were in the

    7 service of the HVO there.

    8 On the fact that I have completed by

    9 exposition on this particular issue, I would like to

    10 proceed with another item, which is the locking up and

    11 threatening of Aladin Karahodza.

    12 Witness BB and the Witness Z charged Drago

    13 Josipovic with having, on the night between the 15th

    14 and 16th of April, locked up the sentry Aladin

    15 Karahodza in the guard post, the sentry post in the

    16 warehouse of Santici, in the timber warehouse of

    17 Santici. Both witnesses stated that this was related

    18 to them by Aladin Karahodza.

    19 I have to emphasise right away that in his

    20 closing argument, the Prosecutor only used some

    21 fragments from the testimony of these witnesses, and I

    22 believe that, in principle, the seeking of material

    23 truth can be satisfied only when all the extenuating

    24 circumstances favouring the accused, as well as all the

    25 aggravating circumstances, which further burden the

  12. 1accused, are properly established.

    2 First and foremost, it follows from the

    3 statement of Witness Z that Drago Josipovic was not

    4 near the warehouse. He stresses that, together with

    5 Galib Imsirovic, on that very night, he was on guard

    6 duty, and he also stresses that there were reinforced

    7 guards that were also patrolling the village. His

    8 house is right next to the road, and it is some 20

    9 metres away from the house of Drago Josipovic. But on

    10 the other side of his house, that is, the house of

    11 Witness Z, there is an asphalt road and the Ogrjev

    12 warehouse is right there.

    13 The warehouse has a white fence, which is 8

    14 by 6 metres in diameter, so that he had very good

    15 visibility, and if they had reinforced guards until

    16 2.00 a.m., then they would have probably seen Drago

    17 Josipovic as they passed the road, went to the

    18 storehouse, and proceeded towards the guard post.

    19 Let me add right away that Witness Z also

    20 stated that he continued to keep watch -- that the

    21 guards -- that there was a guard there, Galib

    22 Imsirovic, who continued to keep guard. The Prosecutor

    23 absolutely circumvented the part of the statement of

    24 this particular witness who said that Drago Josipovic

    25 had not been at the warehouse of Ogrjev on that

  13. 1specific night.

    2 This is not all. It follows from the

    3 statement of Witness Dragan Calic that Aladin Karahodza

    4 was a guard in this warehouse. It was his duty, was

    5 his assignment, to be there on guard duty until the

    6 foreman came on the next morning, on April 16, 1993,

    7 for his work, and I believe that the real reason why

    8 Aladin Karahodza did not leave the guard post was that

    9 he was just as afraid as Witness Z was, because Witness

    10 Z said that after the shooting, he was in his house and

    11 only then, later, for security reasons, did he transfer

    12 himself to the house of Vlado Santic, from which house

    13 he did not leave until UNPROFOR people came at about

    14 15.30 on that same day.

    15 He stresses that he had seen Aladin Karahodza

    16 in the courtyard of the warehouse, of the Ogrjev plant,

    17 waving his hand, and the witness Kujawinski also stated

    18 that Aladin Karahodza had come from the courtyard to

    19 the road where UNPROFOR vehicles were.

    20 In all fairness, he says that he crept and

    21 crawled under the wire fence, but this is not correct

    22 because it is fastened to the ground, the fence, that

    23 is, and there is no room under which to crawl.

    24 It falls from the statement of witness Dragan

    25 Calic and the photographs which have been presented to

  14. 1this Chamber, as well as from the videotape which was

    2 shown, that this wire impediment was, indeed,

    3 negotiable, and the mesh is such that it can be

    4 surmounted.

    5 It follows from the statements of the other

    6 witnesses also that this guard post, which had a glazed

    7 door and had three windows, one facing east, one west,

    8 and the third facing south.

    9 According to the videotape which was shown,

    10 especially according to the statement of Ivan

    11 Brankovic, it follows to the east, that to the east or

    12 the warehouse, towards the house of Smail Ahmic and

    13 Mujo Ahmic, and let me not list any more houses in that

    14 direction. And to the west is the house of Avdo

    15 Becirevic. That means that Aladin Karahodza could at

    16 any moment leave, without being seen by the guard post

    17 and head towards the houses of members of his own

    18 ethnic group.

    19 In addition to that, it is evident from the

    20 statement of Dragan Calic, and was also shown on the

    21 videotape, that one can enter the courtyard of the

    22 warehouse by two gates; however, one gate was being

    23 locked and that was exactly the gate over which

    24 Karahodza jumped. However, this is just as if someone

    25 were to leave one's house by the chimney rather than by

  15. 1the door. He could have used gate number 1 which has

    2 an additional door on the side, so to speak, and it was

    3 unlock. He is a young man, 27 years of age, he is not

    4 bulky, and he could have evacuated himself from the

    5 courtyard when he saw the UNPROFOR vehicles. So the

    6 witness is not correct when he contends that he was

    7 locked and that he was trembling, because it is not

    8 true simply for the reason that both were behaving the

    9 same way. The witness said that he had fainted, as

    10 also corroborated by Witnesses BB and Witness Z, when

    11 the UNPROFOR vehicles came, he lost consciousness out

    12 of fear and ended up in the Novi Travnik Hospital.

    13 Therefore, the testimony of Witness Z is

    14 transparent when he says that Aladin Karahodza was

    15 locked in the guard house, interpreting this by the

    16 fact that he was in fear, that he was afraid.

    17 Finally, we have one peculiarity which runs

    18 like a swing throughout this whole case with respect to

    19 my client Drago Josipovic, namely here as well as in

    20 other cases, the Witness BB was questioned by one of

    21 the investigators of the Prosecution, in which case she

    22 failed to mention at all Aladin Karahodza. Also, the

    23 Witness ZZ was interrogated by the investigators of the

    24 Prosecution on the 15th and 17th of November, 1997. It

    25 was an extensive interview which took some two days,

  16. 1and on the 2nd of February, 1998, he also gave a

    2 statement to the police in Zenica.

    3 It was only on the 10th of May in 1998 that

    4 he, for the first time, mentioned the case of Aladin

    5 Karahodza, which means that the Witness Z and

    6 Witness BB, only after the indictment had been

    7 disclosed, publicly disclosed and confirmed by the

    8 Tribunal, and when Drago Josipovic had already been in

    9 The Hague to appear before this Court, it was only then

    10 that these -- that this witness locked up Aladin

    11 Karahodza in the warehouse of the Ogrijev plant.

    12 I also need to mention that in both cases

    13 this is a hearsay witness. The question necessarily

    14 arises whether this statement can be categorised as

    15 admissible evidence.

    16 This war story of Aladin Karahodza reminds me

    17 of a hunting story, because it is unconvincing, and I

    18 do believe that Drago Josipovic, on the night in

    19 question, was not at the Ogrijev warehouse, which in

    20 itself implies that he had not locked up Aladin

    21 Karahodza and could not have threatened him with a

    22 pistol.

    23 I also have to add to this that the claim of

    24 the Prosecutor is also not correct when he says the

    25 house of the Drago Josipovic is in the immediate

  17. 1vicinity of Ogrijev. The house of Drago Josipovic is

    2 not there. It is a courtyard between his house and the

    3 road, and the gun house of the Ogrijev Enterprise is on

    4 quite the opposite side of the yard, which means that

    5 the house of Drago Josipovic is over a hundred metres

    6 away from the guard post and from the scene of the

    7 event, which is quite visible on the videotape. So

    8 this distance, that is of over a hundred metres.

    9 So that Aladin Karahodza could not have been

    10 afraid of Drago Josipovic seeing him from Josipovic's

    11 house as he crossed over from the other side from the

    12 Ogrijev yard to the other side of the road.

    13 I'd now like to talk about the count which

    14 refers to the murder of Muzafer Puscul, the burning of

    15 his house, and the taking away of his family. I should

    16 like to stress at the outset that Drago Josipovic has

    17 not committed the crime that he's charged with in the

    18 indictment, that he had no intention nor no knowledge

    19 of the murder of Muzafer Puscul, according to Article 7

    20 of the Statute.

    21 The statement of the Witness EE is

    22 problematic and wholly unconvincing. She has changed

    23 her statements on a number of occasions, and her

    24 statement has contradicted her earlier statements, as

    25 well as contradictory to the statements of other

  18. 1witnesses who have been questioned before this Trial

    2 Chamber.

    3 I should proceed by just briefly touching

    4 upon the most salient differences in respect to her

    5 statement given here before the Trial Chamber vis-à-vis

    6 the earlier given statements.

    7 Let me just, by way of illustration, mention

    8 one sentence, that this witness charges that Drago

    9 Josipovic, together with Vladimir Santic and a group of

    10 soldiers, burned their house, killed Muzafer Puscul,

    11 forcibly abducted them and took them away from their

    12 house.

    13 So thus the Witness EE, at a hearing on the

    14 8th of October, 1998, said that she could recognise

    15 Vlado Santic, Zeljo Livancic, Drago Josipovic, Marinko

    16 Katava, Karla Cerkez -- Karlo Cerkez in a matter of two

    17 seconds, and somewhat later she also referred to Stipo

    18 Alilovic.

    19 However, according to the statement of

    20 May 14, 1993 which she gave to the public security

    21 centre in Zenica, she emphasised that Stipo Alilovic,

    22 Zeljo Livancic, Vlado Santic, and Drago Josipovic were

    23 the people who were in front of her door. She at that

    24 time did not mention Karlo Cerkez or Marinko Katava.

    25 According to the statements of the same

  19. 1witness on September 20, 1993, which she gave before

    2 the High Court in Zenica, she claimed that she had seen

    3 Stipo Alilovic, Zeljko Livancic, Zarko Kristo, and

    4 Karlo Cerkez in addition to Drago Josipovic and Vlado

    5 Santic.

    6 According to a statement on the 1st of

    7 February, 1995, which she gave before the investigator

    8 of the Prosecutor, she had ostensibly seen Marinko

    9 Katava, Zeljo Livancic, Karlo Cerkez -- sorry, Karlo

    10 Cerkez, Valdo Josipovic and does not mention Vlado

    11 Santic this time.

    12 In statements given on the 31st of July, 1996

    13 and the 1st of August, 1996 to the investigator of the

    14 Prosecutor, she says that she saw Stipo Alilovic, Vlado

    15 Santic, Drago Josipovic, Marinko Katava, Karlo Cerkez,

    16 and Zeljo Livancic.

    17 The Witness EE is also neither consistent

    18 when she describes the persons who killed her husband

    19 Muzafer.

    20 So on the 8th of October, 1998, she said that

    21 it was Vlado -- Zeljo Livancic and Santic that took her

    22 husband away. In a statement of the 14th of May, in

    23 Zenica, she said it was Stipo Alilovic who had ordered

    24 Zeljo Livancic to take away Muzafer, and that Zeljo

    25 Livancic did take him behind the shed and after that

  20. 1she could hear bursts of fire.

    2 According to the statement that she made to

    3 the Higher Court in Zenica, it may be concluded that --

    4 sorry. I stand corrected. According to the statement

    5 that she made to the Prosecutor's investigator in

    6 February 1995, is it may be concluded that Zeljo

    7 Livancic, Vlado Santic, Drago Josipovic, Marinko

    8 Katava, took Muzafer Puscul behind the shed. And in

    9 the statement that she gave to the Prosecutor's

    10 investigator on -- in July 1996 and on the 1st of

    11 August, 1996, it seems that Muzafer was taken by Zeljo

    12 Livancic and Vlado Santic behind the shed.

    13 Mr. President, I am not going to enumerate

    14 all these differences any longer, and there are quite a

    15 few of them at that. So I shall mention the case of

    16 Marinko Katava.

    17 The Prosecutor had put forth a proposal to

    18 withdraw indictment against Marinko Katava. This was

    19 confirmed by the Court. This is meaningful for two

    20 reasons. That is to say that Witness EE's testimony is

    21 not truthful; and secondly, that the Honourable Trial

    22 Chamber does not believe this witness.

    23 I should like to mention, in passing, a

    24 question. Can a person be convicted on the basis of

    25 the testimony of one sole witness? This is a very

  21. 1troublesome issue, and I believe that in this

    2 particular case, on the basis of the statement made by

    3 one witness only, a sentence cannot be passed.

    4 There are several versions of this statement

    5 of this witness. She mentioned several different

    6 persons on several different occasions, and that is why

    7 a judgement of guilty cannot be based on her

    8 testimony. I wish to add that the witness's testimony,

    9 Witness EE's testimony, is not corroborated by any

    10 other evidence.

    11 The events by Muzafer Puscul's house cannot

    12 be viewed separately by the events that occurred near

    13 Nazif Ahmic's house, Azim Ahmic's house, and Ramiz

    14 Ahmic's house. This has to be viewed as one whole and

    15 in terms of continuous time.

    16 Witness DD said that on the 16th of April,

    17 1993, she was awakened in the early morning hours by an

    18 explosion. She stresses that from her window she saw a

    19 group of soldiers who were coming from the direction of

    20 Azim's house; that is to say she saw them by is Azim

    21 Ahmic's house, meaning that that group of soldiers was

    22 moving from the direction of Muzafer Ahmic's house.

    23 That direction of movement was confirmed by

    24 Witness FF as well, who also saw a group of soldiers

    25 moving from that direction. And the statement of Josip

  22. 1Vidovic speaks in that direction as well; namely, Josip

    2 Vidovic said that this was what he was told by Alma,

    3 the daughter of Witness DD.

    4 The statement of this witness, in relation to

    5 the statement of Witness EE, has a single point in

    6 common. Both are direct; namely, Witness EE said that

    7 a group of soldiers was shooting at her house and

    8 torching her house, and while they were still doing

    9 that, they set off for Ramiz Ahmic's and Azim Ahmic's

    10 house. This is corroborated by witness statements;

    11 that is to say, the statements of FF, Josip Vidovic,

    12 and Witness DD.

    13 I have to mention another question that the

    14 Prosecutor avoided. Witness CA said that as she was

    15 leaving her own house, she was moving in the direction

    16 of Muzafer Puscul's house or, rather, Zarko Kristo's

    17 house. Those two houses are near one another.

    18 Witness CA testified that in Zarko Kristo's

    19 house she saw Karlo Cerkez shooting with a rifle. That

    20 testimony coincides with that of Witness EE, who said

    21 that her house was being shot at from Zarko Kristo's

    22 house for a second time, when her house had already

    23 been torched.

    24 The distance involved -- that to say from

    25 that house to the house of Anto Papic -- is about 700

  23. 1metres, in my estimate.

    2 Witness CA set out with her family towards

    3 the house of Nikola Omazic and further on towards the

    4 house of Nikola Papic. According to the testimony of

    5 this witness, as well as that of Witness BB, it may be

    6 concluded that they were walking down a field from

    7 Zarko Kristo's house towards the house of Nikola

    8 Omazic, and that's where they encountered Drago

    9 Josipovic and Witness D.

    10 These points forcefully show that Drago

    11 Josipovic was not by Muzafer Puscul's house or by Nazif

    12 Ahmic's house.

    13 The testimony of Witness EE is highly

    14 regarded by the Prosecutor. He says that it is

    15 reliable, confidential, truthful, and I claim the

    16 opposite.

    17 When Witness EE described Drago Josipovic,

    18 and when Witness DD described Drago Josipovic, there

    19 was quite a difference. It would actually seem that it

    20 is not the same person concerned. It is not the same

    21 Drago Josipovic that is described by Witness EE and

    22 Witness DD respectively.

    23 Witness DD says that she saw Drago Josipovic

    24 from her house as he was coming from the direction of

    25 Azim Ahmic's house and shooting. She saw him for a

  24. 1second time, she said, when he was behind her house.

    2 He came there after her son Amir had been taken away in

    3 the same direction.

    4 Witness DD says that Drago Josipovic had a

    5 black cap, a black knitted cap, and that he had pulled

    6 it over his face. However, I don't blame the

    7 Prosecutor for not having noted this difference,

    8 because he could not have; namely, the transcript says

    9 that Witness EE described Drago Josipovic as having had

    10 a multicoloured cap and a visor cap, whereas the other

    11 witness said that he had a black knitted cap.

    12 I checked with the tape that I got from the

    13 Registry here, and I established that Witness EE gave a

    14 description of the cap and of Drago Josipovic.

    15 However, regrettably this does not enter the

    16 transcript. I believe that neither statement is

    17 truthful or correct, because other witnesses, for

    18 example, Witness CA and Witness CB -- I'm a bit

    19 confused.

    20 Mr. President, I paused for a while but I

    21 shall correct myself because I remembered what I wanted

    22 to say.

    23 Witnesses CB and CA, respectively, speak

    24 differently in relation to the Court witnesses; namely,

    25 CB and CA. Namely, both witnesses said that Drago

  25. 1Josipovic, on that morning when they saw him before

    2 6.00, did not have any cap on his head.

    3 This is yet another addition and another

    4 corroboration to the thesis that Drago Josipovic was

    5 not by Muzafer Puscul's house or Nazif Ahmic's house.

    6 During the commission of the crimes mentioned

    7 in the indictment, Drago Josipovic was at Nikola

    8 Omazic's house and that is what Witness DG's statement

    9 confirms as well. He said that Drago Josipovic passed

    10 by his yard in the morning at 5.15. After a brief

    11 conversation, they heard shooting and came to a

    12 crossroads where Anto Bralo's house was.

    13 After this shooting, they continued towards

    14 Nikola Omazic's house and that's where they encountered

    15 the families of Witness CA and CB. An event that can

    16 be reconstructed on the basis of the testimony of this

    17 witness corresponds to the statements of Kovac Katica,

    18 Kovac Franjo, Anto Bralo, and Finka Bralo. In the same

    19 way they pointed out that on the road by Nikola

    20 Omazic's house they saw Drago Josipovic and

    21 Witness DG. They also mentioned that they met

    22 Witness CA, Witness CB and their families.

    23 Witness CA and Witness CB pointed out that

    24 they had besieged Drago Josipovic that they seek

    25 shelter there, and Drago Josipovic accepted that,

  26. 1especially Witness DG, because CB's children were

    2 barefoot and hardly had any clothes on.

    3 Witness CB points out in his statement that

    4 the children of Witness CB asked them to take them to

    5 the house of Witness DG, and then that is what

    6 Witness CA asked as well. This is corroborated by

    7 Witness CB's statement. She clearly indicated that

    8 Witness CA asked Witness DG to take them to their -- to

    9 his house. That is to say that when one looks at the

    10 inter-relationship between these statements, one can

    11 see that they are mutually connected, and they are

    12 conducive to the only possible conclusion; that is that

    13 in the morning, before 5.30, Drago Josipovic was by

    14 Witness DG's house, and near Nikola Omazic's house he

    15 encountered the family of Witness CA.

    16 I have to particularly highlight the

    17 importance of Witness CB's statement. She made a

    18 statement to the Prosecutor's investigator and pointed

    19 out that she went out of her house five minutes after

    20 Fahran Ahmic had been killed. They were in a hurry

    21 because the children did not even have time to put

    22 their shoes on.

    23 She pointed out that by -- that from her

    24 house to Witness DG's house, and in the direction from

    25 her house towards Muzafer Puscul's house, the

  27. 1visibility was good. The houses are scattered. They

    2 are in fields and there was no vegetation at the time.

    3 The witness claimed that Drago Josipovic

    4 could not have killed her husband and could not have

    5 been in the house, which means that he was not by

    6 Muzafer Puscul's house either. In her testimony, she

    7 stated here, before the Trial Chamber, that a group of

    8 soldiers attacked her, and when she left the house,

    9 Fahran Ahmic was killed. She did not think, she was in

    10 a hurry with her children, and with Witness CA, she set

    11 out for Rovna, in the direction of Rovna. She pointed

    12 out that it was impossible for her not to see a person

    13 moving in that area and claimed that if someone were to

    14 be moving in that area, she would have had to see him.

    15 The statements of Court Witnesses CA and CB

    16 clearly point to the conclusion that Drago Josipovic

    17 could not have been by Naser Ahmic's or Muzafer

    18 Puscul's house. When Witness DG testified here before

    19 the Trial Chamber, he said that the house of Cazim

    20 Ramic was right by the road where Drago Josipovic and

    21 Witness DG were walking. The house of Cazim Ramic was

    22 lit, and there was light in the windows, it's only five

    23 metres away from the road, but the house of Mujo Ahmic,

    24 where Cazim Ramic happened to be with his family later,

    25 as well as Mirsad Osmancevic, is also near the road and

  28. 1it also has windows.

    2 During the trial, Witness DG had Cazim

    3 Ramic's statement read out to him. The Prosecutor did

    4 not oppose that, and according to the statement of

    5 Cazim Ramic, it -- I'm sorry. It seems that Drago

    6 Josipovic and Witness DG did not kill anyone. He said

    7 that the killings were committed by those who were

    8 masked.

    9 Although I respect the ruling of the Tribunal

    10 that this will not be admitted into evidence, I believe

    11 that this is an important circumstance. I'm sorry.

    12 Witnesses CB and CA, Frano Kovac, Anto Bralo, and

    13 Witness DG are, indeed, relevant.

    14 That the testimony of Witness EE, when she

    15 said that she saw a group of soldiers moving in the

    16 direction of Nazif Ahmic's house, is true, is confirmed

    17 by the testimony of Witness DH, who said that, from

    18 Muzafer Ahmic's barn, you could see the road and the

    19 houses of Ramiz Ahmic and Nazif Ahmic.

    20 Witness EE stated that she heard voices

    21 around Ramiz Ahmic's house, that she heard his voice

    22 and the voice of Witness DD. This indicates that the

    23 group of soldiers in the house of Witness EE left in

    24 the direction of Witness DD's house.

    25 Witness FF said that, after the explosion and

  29. 1after she was attacked by members of the army, half an

    2 hour elapsed before they left the area, crossed the

    3 road, and set out in the direction of Ogrjev.

    4 Witness Z, who said that in the night of the

    5 15th to the 16th he spent the night at his house, which

    6 is only some 15 metres away from the house, saw early

    7 in the morning a group of soldiers crossing the road

    8 and going to the northern part of Zume.

    9 If the testimony of Witness FF is compared to

    10 this, and the length of time she spent in her house and

    11 barn, if this is compared to the testimony of Witnesses

    12 CA, CB, and DG, we can see two things: First of all,

    13 that Drago Josipovic was not in the group which was in

    14 EE's house and DD's house and later crossed the road;

    15 and if we make a connection between this and the

    16 testimony of Zoran Covic, then it is quite clear

    17 because he said that he had heard from his father that

    18 Ramiz Ahmic's family and Nazif Ahmic's family remained

    19 in their houses. So he received this information from

    20 someone who knew this.

    21 The most intense gunfire was around the road,

    22 and no one crossed the road from the direction of DG's

    23 house or came back that way. This means that Zoran

    24 Covic heard this information from someone who had

    25 participated in these events. This again leads to the

  30. 1conclusion that Drago Josipovic was at his home and not

    2 in the houses of Muzafer Puscul and Nazif Ahmic.

    3 I have already said that, during the first

    4 conflict, Drago Josipovic was at his house, and it has

    5 been confirmed that the Prosecutor's contention that he

    6 was mobilised at that time is incorrect. He was not

    7 mobilised on the 16th of April, 1993 either. He was at

    8 his home, and this follows from the testimony of

    9 Witnesses CA, CB, DG, Frano Kovac, Anto Bralo, Finka

    10 Bralo, and Katica Kovac.

    11 Exhibit P3, to which the Prosecutor refers,

    12 is incorrect in relation to Drago Josipovic because

    13 these lists were drawn up so that people could be

    14 issued with shares, as many witnesses have said,

    15 including Katica Kovac and Vlado Alilovic.

    16 Dragan Stojak, who was an employee in the

    17 Vitez defence office, said that mobilisation was

    18 carried out in the afternoon of the 16th of April, and

    19 Vlado Alilovic said that mobilisation was carried out

    20 from the 16th to the 28th of April, but step by step,

    21 and that it was impossible to establish who was

    22 mobilised when.

    23 Since Drago Josipovic was at home during this

    24 time, this fact leads to the conclusion that he was not

    25 an active member of the HVO and that he was not

  31. 1mobilised on the 16th. He was mobilised only on the

    2 19th of April, 1993. This is borne out by the

    3 testimony of Anto Bralo, Frano Kovac, and Katica

    4 Kovac.

    5 With respect to Anto Bralo and Frano Kovac,

    6 the documents of the Prosecution also indicate that

    7 they were mobilised, which is not correct. Anto Bralo

    8 has documents which have been adduced into evidence

    9 that he was employed at the British Battalion of

    10 UNPROFOR. This excludes the possibility of his having

    11 been mobilised, as the Prosecutor claims. Frano Kovac

    12 was also not mobilised, and this was established on the

    13 basis of his employment booklet. He was employed in

    14 Novi Travnik and only came to Santici from time to

    15 time. His house was under construction. He did not

    16 know the neighbourhood very well, no one knew about

    17 him.

    18 All of them, together with Drago Josipovic,

    19 were mobilised on the 19th of April, 1993.

    20 It must be pointed out that Frano Kovac and

    21 Anto Bralo, during the first conflict, were at their

    22 homes, just like Drago Josipovic. Anto Bralo and Frano

    23 Kovac testified that during the first conflict together

    24 with Mirsad Osmancevic, they were cutting wood, and the

    25 first conflict occurred while they were cutting wood,

  32. 1and so they spent a whole night in the wood. This is

    2 further proof of the Defence's claim that neither Anto

    3 Bralo, nor Frano Kovac, nor Drago Josipovic were

    4 mobilised before the 19th of April, 1993.

    5 The Prosecutor claims that Drago Josipovic

    6 detained members of the Muslim ethnic group, which is

    7 not true. From the testimony of Witness CA, it follows

    8 that she asked Drago Josipovic to provide her with a

    9 shelter.

    10 I have already said that, according to the

    11 testimony of Witness CA, who said the same as CB, they

    12 asked him to take them into his home. When Witness DG

    13 and Drago Josipovic met their families, the children

    14 were barefoot and, according to Witness DG, the

    15 children asked Witness DG to take them in. Drago

    16 Josipovic and Witness DG took them to Witness DG's

    17 house, gave them milk, and welcomed them nicely.

    18 During the day, Witness CA left the house, as she

    19 herself said, and this was corroborated by the

    20 testimony of Witness CB. Witness EE also confirmed

    21 that she left DG's house.

    22 Other witnesses, Katica Kovac, Anto Bralo,

    23 and Witness DG all said the same as the aforementioned

    24 witnesses; that is, that the house of Witness DG was

    25 not locked, that they were able to leave whenever they

  33. 1wanted to.

    2 Witness CA went to Fahran Ahmic's house.

    3 With regard to Fahran Ahmic's house, it is my opinion

    4 that Witness Z's testimony is not correct. He says

    5 that in the afternoon of the 16th, when he wasn't

    6 feeling well and was getting into a vehicle, happened

    7 to notice a group of soldiers in front of Fahran

    8 Ahmic's house. The distance is not 20 metres; it's

    9 more than 60 metres, and Fahran Ahmic was near that

    10 house with a cap. Because Witnesses CA and CB said

    11 that on that afternoon, at 15.30 hours, he was at

    12 Fahran Ahmic's house, and this is confirmed by the

    13 testimony of Witness DH, who said that he, Miro

    14 Josipovic, and Nikica Grebenar, went to collect the

    15 dead body of Fahran Ahmic, and the fact that Drago

    16 Josipovic was not there is borne out by the testimony

    17 of Witness CA, who said that she asked Drago Josipovic

    18 to go and see the dead body, and he told her that he

    19 was afraid and that he could only do it when it started

    20 to get dark.

    21 So the Prosecutor's allegation that Drago

    22 Josipovic was in the courtyard in front of Fahran

    23 Ahmic's house is not true.

    24 Mirsad Osmancevic is a special case. It

    25 should be pointed out that, from the testimony of

  34. 1Witnesses CA and CB, it follows that Witness CA asked

    2 Drago Josipovic to bring Mirsad Osmancevic and his

    3 family to Witness DG's house, and also Cazim Ahmic, and

    4 she repeated her request and asked that Witness EE and

    5 her family be brought to Witness DG's house.

    6 The Prosecutor is puzzled by the manner in

    7 which Drago Josipovic brought these families to that

    8 house. It is understandable that Witness CA moved

    9 along the road, beside the houses where Cazim Ahmic and

    10 Mirsad Osmancevic were, and EE's house is not far

    11 away. So they had to be seen.

    12 Witness CA is easily recognisable because she

    13 wears a headscarf and the Muslim dress, so she and

    14 Witness EE and Cazim Ahmic and Mirsad Osmancevic were

    15 conspicuous.

    16 The Prosecutor is incorrect in saying that

    17 Drago Josipovic and Witness DG forcibly locked up

    18 Muslims. Mirsad Osmancevic's case shows that this is

    19 not so. He had a young baby, and his family, with

    20 three small children, went to Rovna. Drago Josipovic

    21 helped Mirsad, as his neighbourhood, to go to Rovna.

    22 He gave him his vest. But when an HVO soldier

    23 threatened to blow up the owner of the house, to blow

    24 up the house if he remained there, he came back to DG's

    25 house, and this shows that all Muslims could go in and

  35. 1out of that house as they wished.

    2 I have to point out that Drago Josipovic and

    3 Witness DG saved the wives and children of Muslims, but

    4 also able-bodied men, such as Amir Ramiz and Zenur, but

    5 Mirsad Osmancevic, who was an officer of the army of

    6 B and H, did something wonderful for them at the risk

    7 of his own life.

    8 As regards the taking away of Muslims from

    9 Anto Papic's house, toward Miso Livancic's house, I

    10 think that Drago Josipovic did not participate in this

    11 at all. Witness EE said that Witness DG came to their

    12 house and said that they should go toward the road and

    13 that UNPROFOR would take charge of them. Witness CB

    14 said that only Witness DG took her there, and Witnesses

    15 CB and CA said that, on that occasion, they saw Drago

    16 Josipovic in his courtyard, and that they could come

    17 and go as they pleased is also corroborated by the

    18 witness who said that she crossed the fields towards

    19 Fahran Ahmic's house and arrived before the others, who

    20 were taking the long way around, and saw Drago

    21 Josipovic in the courtyard. But Witnesses DG, Katica

    22 Kovac, Finka Bralo, and Anto Bralo said that Drago

    23 Josipovic went to his house an hour before Anto Papic

    24 took the Muslims to the road and then to Miso

    25 Livancic's house.

  36. 1From the testimony of Witnesses EE, CA, and

    2 CB, it follows that they then went to Miso Livancic's

    3 house, and from the testimony of Witness DG, it follows

    4 that he took them there of his own accord. Drago

    5 Josipovic did not participate in or omit to do anything

    6 he should have when the Muslims were taken toward the

    7 road, because it was Witness DG who talked to the

    8 representatives of UNPROFOR in German, and when

    9 UNPROFOR rejected the Muslims, he himself took them to

    10 Miso Livancic's house of his own volition, and

    11 throughout this time, Drago Josipovic remained at

    12 home.

    13 He was later asked by Witness CA whether she

    14 could stay, and he said she could, but as he explained,

    15 certain things could happen, and this was true.

    16 I have already mentioned the testimony of the

    17 peculiarities in the testimony of the Prosecution

    18 witnesses. Witness DD was questioned by the

    19 Prosecutors and investigators on several occasions, and

    20 it was only after the indictment was published that she

    21 mentioned the case of Drago Josipovic.

    22 However, I should also mention the official

    23 note of Prosecutor Terrier. I trust him and I also

    24 trust his investigator. In the official note, it says

    25 that, on the 16th of April, 1993, one of the soldiers

  37. 1threw down a woman who was injured and remained in a

    2 coma, and the investigator wrote that Witness EE stated

    3 that her son, Amir, was killed by Anto Bralo. If all

    4 the other evidence is compared with this note, which

    5 has been adduced into evidence, and it was written by

    6 the Prosecutor, then the credibility and truthfulness

    7 of Witness DD is very questionable.

    8 It is claimed that Witness DG said to

    9 Witness CB that he himself did not feel very safe in

    10 his own house. So Witness DG, who is an elderly person

    11 and not in good health and without a very good memory,

    12 and the Defence mentioned this problem in the

    13 examination, I am pointing this out because the

    14 Prosecutor paid the most attention to this witness.

    15 Therefore, I consider that Drago Josipovic

    16 did not omit to do anything and did not do anything to

    17 deserve being charged with persecution and murder.

    18 There is nothing to show that he discriminated against

    19 Muslims either on ethnic or religious or other

    20 grounds. He did not participate in a systematic attack

    21 on the Muslims or on individuals. He did not

    22 perpetrate a criminal act or in any way participate in

    23 or aid and abet the commission of a criminal act. He

    24 did not incite others to commit criminal acts. He did

    25 not contribute to the commission of other crimes, and

  38. 1there is nothing that would lead to the conclusion that

    2 he had the intention of committing a crime.

    3 The fact that he had a rifle and a uniform, I

    4 repeat, does not mean that he committed any kind of

    5 crime.

    6 I forgot to mention Witness DG's fear.

    7 According to the testimony of Finka Bralo, everyone was

    8 afraid when Mirsad Omazic, as an officer of the army of

    9 BH, came back to DG's house. There was panic. One

    10 should understand that Witness DG was terrified and

    11 that he told Witness CB that he was afraid for his own

    12 safety and that of his family.

    13 It follows from all this that Drago Josipovic

    14 did not commit any of the crimes with which he's

    15 charged in the amended indictment and, therefore, I

    16 propose that he be acquitted by this Court.

    17 I also propose that the Court should

    18 provisionally release Drago Josipovic, because he

    19 volunteered to come to this Tribunal, and Their Honours

    20 trusted him and allowed him to attend his mother's

    21 funeral and he justified this trust by coming back, and

    22 the government of Bosnia and Herzegovina guarantee that

    23 they will hand over Drago Josipovic should he fail to

    24 come back voluntarily.

    25 Your Honours, I have completed my final

  39. 1statement.

    2 JUDGE CASSESE: Thank you so much. We now

    3 stand adjourned until 11.20. So only 20 minutes.

    4 --- Recess taken at 11.02 a.m.

    5 --- On resuming at 11.22 a.m.

    6 JUDGE CASSESE: Before I call upon

    7 Counsel Puliselic, I would like to say that we have

    8 carefully considered the question of confidentiality of

    9 two documents which have been filed, by the Prosecutor

    10 the brief, Prosecutor's brief, and the brief filed by

    11 Counsel Krajina, and we have decided that these two

    12 documents should not be treated as confidential any

    13 longer. So they're public documents now.

    14 Counsel Puliselic?

    15 MR. PULISELIC: Your Honours, in its closing

    16 argument, the Defence will first of all give a few

    17 introductory remarks; touch briefly upon the first and

    18 the second conflicts; and then it shall, in

    19 polemicising with the final closing argument of the

    20 Prosecution, analyse the statements of certain

    21 witness -- Defence and Prosecution witnesses.

    22 The content of the closing arguments of the

    23 Defence shall in principle not be repeated, nor shall

    24 we be repeating things that the Defence has already

    25 discussed before this Court.

  40. 1In the introduction, the Defence wishes to

    2 stress that by the initially brought charges against

    3 our client in 1995, which was signed by Prosecutor

    4 Goldstone, Dragan Papic had been charged for six

    5 criminal offences under Article 2 and Article 3 of the

    6 Tribunal's Statute, and according to that indictment

    7 for alleged crimes, he predominantly committed those,

    8 participated in offences in the village of Pirici,

    9 whereby the amended indictment from 1995, he was

    10 charged with crimes under Article 5(H) of the Tribunal

    11 Statute located in Ahmici.

    12 This very fact associated with the venue and

    13 the manner of the commission of the criminal offence

    14 points to the very question of the credibility of the

    15 statements of certain witnesses on the basis of whose

    16 testimonies and statements the Prosecution first issued

    17 the first indictment and then the second amended

    18 indictment at the time when Dragan Papic had already

    19 been at The Hague.

    20 In addition to this, it follows from the

    21 statements of the witnesses for the Defence that on the

    22 16th of April, 1993, when the crimes were committed,

    23 Dragan Papic was neither in Pirici, nor in Ahmici, but

    24 happened to be next to the -- by the River Lasva

    25 guarding a bridge as the most ordinary -- as a most

  41. 1ordinary member of the village guards.

    2 By the amended indictment, in Count 1 he is

    3 charged with a crime against humanity under Article

    4 5(H) of the Statute, which is to say, for persecution

    5 on political, racial, or religious grounds.

    6 The Defence contends that nothing contained

    7 in this charge has been committed by Dragan Papic, nor

    8 did Dragan Papic participate in the first clashes in

    9 November 1992, nor in the second conflict which took

    10 place on the 16th of April 1993, in a way as to aid and

    11 abet or personally commit any of the transactions

    12 characterised as penal, as criminal behaviour towards

    13 the Muslims. And on April 15, 16, 1993, he did not

    14 know the scope or the objectives of the conflict.

    15 The Defence wishes also to stress that due to

    16 the vague wording of the Prosecution, of the

    17 indictment, it was only during the actual hearing that

    18 the Defence could conclude what actual behaviour and

    19 what actual offences Dragan Papic was being charged

    20 with.

    21 The Defence claims that Dragan Papic did not

    22 commit a single of the offences that he is charged with

    23 or that -- according to the statements of some of the

    24 witnesses, and that his behaviour does not have the

    25 weight of criminal acts to be so characterised under

  42. 1Article 5 of the Tribunal's Statue. And this was

    2 expounded in more length, in more detail in the

    3 Defence's brief, so I will not repeat that here.

    4 In view of the fact that under the indictment

    5 on the 20th of October, 1992 -- he is charged with a

    6 certain behaviour on the 20th of October, 1992 -- the

    7 Defence wishes to stress that it follows from the

    8 statement of the witnesses of the Prosecution as well,

    9 and in particular the witnesses of the Defence, it

    10 follows unquestionably that on the 20th of October,

    11 1992, there were no attacks on the civilian Muslim

    12 population in Ahmici, Santici, and Pirici with a view

    13 to the persecution or banishment or expulsion.

    14 The actual cause of this conflict and this is

    15 held unquestionable by the Defence, was the roadblock

    16 which had been erected on the main road by the Muslims

    17 in order to block passage to HVO units headed for

    18 Jajce, where they were headed in order to help their

    19 units. It is indisputable that there was fighting

    20 between the HVO and the Serbian army at the time in the

    21 Jajce area and that after several days the Serbs took

    22 Jajce.

    23 So the armed conflict on the 20th of October,

    24 1992 was an armed conflict between two armies caused by

    25 that barricade, and the Croats actually did not

  43. 1participate -- from Ahmici did not participate in it.

    2 The Defence also contends that not a single

    3 Muslim house was destroyed deliberately in that

    4 conflict, except the house of Mehmed Ahmic. The civil

    5 population, the civil Muslim population was not

    6 expelled and they returned to their houses, and indeed

    7 the Croats invited them to come back. Their houses

    8 were not looted; they were not destroyed; they remained

    9 intact.

    10 The house of Mehmed Ahmici was hit, and it

    11 was set on fire by missiles, by shells fired by the HVO

    12 and not from weapons which ostensibly, according to the

    13 claim of Mehmed Ahmic, was fired by Dragan Papic from

    14 the forest.

    15 The defendant Dragan Papic -- the witness

    16 Mehmed Ahmic had a very high position in the SDA party

    17 of the Muslims, and he had high functions otherwise.

    18 He was not an ordinary citizen, and he had a very

    19 important role in the erection of the roadblock. That

    20 is why the HVO actually shelled his house, targeted his

    21 house.

    22 At the insistence of the Defence, Mehmed

    23 Ahmic also admitted that he had taken part in the

    24 erection of another roadblock which was installed by

    25 the Muslims on the road precisely in front of the house

  44. 1of Ivo Papic. This, according to Mehmed Ahmic,

    2 happened before the first clashes. That is why some of

    3 the Prosecution's witnesses used this fact and changing

    4 the time of the erection of this barricade so that it

    5 had been installed by Dragan Papic, who ostensibly had

    6 been some sort of a commander on that roadblock. I

    7 think this is Witness B.

    8 One cannot accept the allegations of Mehmed

    9 Ahmic that on the 20th of October in 1992, in the early

    10 hours of the morning, Dragan Papic shot from an

    11 automatic rifle, from the window of the house in which

    12 there were sandbags, at Mehmed's house and later also

    13 shot from the woods also at his house.

    14 Mehmed Ahmic, however, claimed that his house

    15 was set on fire by a shell from Hrasno, from where the

    16 house had been targeted by the HVO.

    17 Pero Papic, Zdenko Rajic, and Zvonimir Santic

    18 confirmed that in the early hours of the morning on the

    19 20th of October, 1992, Dragan Papic went -- namely, the

    20 clash broke out -- went -- set out for Gornja Rovna

    21 with the female part of his family, so to speak, where

    22 he met Nenad Santic, the commander of the village guard

    23 in Ahmici, and on that occasion Nenad Santic gave him a

    24 60-millimetre mortar with signal flares. And he headed

    25 for Donja Rovna, near the house of the witness Santic,

  45. 1with the objective to signalise the possible advance of

    2 Muslims from Gornja, Upper Rovna.

    3 According to the statement of Santic, the

    4 whole time -- throughout this time Dragan Papic, while

    5 these clashes around the barricade lasted, he was in

    6 the fields until the end of the clash in -- around

    7 4.00 p.m., so that he could not have, at the same time,

    8 shot at the house of Mehmed Ahmic from various

    9 weapons.

    10 From the statement of the expert witness

    11 Wagenaar, in view of the fact that the woods from which

    12 Dragan Papic allegedly shot is a hundred metres away

    13 from the house of Mehmed Ahmic, it follows that Mehmed

    14 Ahmic could not at all have recognised Dragan Papic,

    15 nor the other persons who he alleges to have seen

    16 there. Especially not in a situation when fleeing from

    17 his own house, bent over, and carrying his son in his

    18 arms.

    19 He could also not have seen Dragan Papic at

    20 the window in a black uniform -- and he claimed that he

    21 had seen him up to the waist -- because at the same

    22 time, he also asserted that the sandbags reached half

    23 of the height of the window, so that he could only see

    24 the head but not the black uniform. But still, even

    25 so, he could not have recognised him in view of the

  46. 1testimony given by Professor Wagenaar, because Ahmic

    2 claimed that the house of Papic's claimed was 70 metres

    3 away from his own.

    4 Let me say a few words about the conflict on

    5 the 16th of April, 1993. The Prosecutor claims that

    6 Dragan Papic helped in the preparations for the April

    7 attack in 1993 in a way -- in the way which has been

    8 described under paragraph 9 of the amended indictment.

    9 Inter alia it mentions military training, refers to

    10 military training, and the only military training that

    11 Dragan Papic had ever had in his life was the military

    12 training that he had during his service in the army, in

    13 the former Yugoslav People's Army; which is to say,

    14 several years prior to this conflict. During that

    15 training, he learned how to use a gun, a M-48, and a

    16 60-millimetre mortar.

    17 This was described by Goran Papic, Zdenko

    18 Rajic and other witness. I also wish to mention that

    19 none of the witnesses of the Prosecution said that

    20 Dragan Papic participated in any military training.

    21 Dragan Papic had not armed himself in any way

    22 whatsoever for -- by way of preparation for the April

    23 attack in 1993. He did have an ordinary M-48 rifle

    24 that he had been issued by his enterprise where he

    25 worked as a game warden, as a woods warden, and he had

  47. 1that gun only since he found that particular job and

    2 not before.

    3 I believe that it is not at all disputable

    4 that Dragan Papic was an employee of the forestry

    5 enterprise until the beginning of the war which broke

    6 out on the 15th of April, 1993, and to corroborate that

    7 the Defence has presented the employment record of the

    8 defendant, which has been admitted into evidence. This

    9 was also corroborated by both Prosecution and Defence

    10 witnesses, that he was a game warden.

    11 Precisely because Papic was permanently

    12 employed until the war, he participated in a much

    13 smaller degree, much less than other people, in the

    14 village guard's patrols.

    15 The night prior to the conflict, Dragan Papic

    16 evacuated his family. This is based, by the

    17 Prosecutor, on the statement of Witness A, who said on

    18 the 15th of April, 1993, he saw Dragan Papic, in the

    19 evening, taking away women, driving away women in a red

    20 Lada car.

    21 On the other hand, the Witness F, when he was

    22 14 years old, saw a red Lada, which he believes was

    23 owned by Dragan Papic, around 3.00 in the afternoon,

    24 taking away women and children, but there were no

    25 children at that time yet in Dragan Papic's house. I

  48. 1wish to stress that the Witness F never referred to

    2 this when speaking to the investigators.

    3 The Prosecution -- the Defence refers to the

    4 statements of Ankica Vidovic, Goran Papic, who said

    5 that at the time Dragan Papic had a Zastava 101 make

    6 automobile, popularly called a Stojadin, and it was

    7 yellow.

    8 In addition to that, the sales contract for

    9 the car in question, which is also in the file, shows

    10 clearly that Dragan Papic did have a red car of Lada

    11 make, but it happened only 1995, not during the -- in

    12 the time of the conflict, that is.

    13 After that, the witness Ljubica Milicevic,

    14 Zoran Santic, and Goran Papic saw Dragan Papic leading

    15 on foot the female part of his family, on the 16th of

    16 April, 1993, the early morning hours after the shooting

    17 had already started. In fact, Dragan Papic was

    18 fleeing, escaping after the shooting broke out, so as

    19 to find shelter for his pregnant, nine-months-gone

    20 wife, and for his mother and his sister, and they

    21 headed for Gornja Rovna where it was calmer and more

    22 peaceful.

    23 As his wife was pregnant and far gone, it's

    24 obvious, not only from the statements, but also from

    25 the documents about the birth of his son Marijan on the

  49. 128th of April, 1993, that the attendant was a Muslim,

    2 Ufeta Tuco. This was the person they trusted the most,

    3 and she was a Muslim. Had Dragan Papic hated Muslims,

    4 he would not have this woman as the birth attendant

    5 attending the birth of his son.

    6 Witness A says that on the 16th and 17th of

    7 April, 1993 he saw a machine gun, some sandbags in the

    8 house of Dragan Papic, and on the 17th of April, that

    9 he saw Dragan Papic himself wearing a black uniform.

    10 In contrast to that witness, the witnesses

    11 Ljubica Milicevic, Pero Papic, and Goran Papic claimed

    12 that never had there been any weapon in front of the

    13 house of Dragan Papic, not a machine gun or anything

    14 similar.

    15 The witnesses for the Defence also disprove

    16 the witnesses for the Prosecution as regards this

    17 machine gun and other manner of weapons in front of the

    18 house of Dragan Papic prior to the conflict, and it is,

    19 in addition to that, illogical that Dragan Papic would

    20 have kept by his house -- or made his father's house a

    21 military fortification, especially in view of the fact

    22 that his wife was about to give birth.

    23 This witness could not have seen Dragan Papic

    24 by his house on the 17th of April, 1993 because, at

    25 that time, he was doing guard duty on Radak Bridge,

  50. 1and, according to the statement of witnesses, he never

    2 left the post.

    3 The Defence also claims that on the 16th of

    4 April, 1993, in the afternoon hours, an UNPROFOR unit

    5 entered Ahmici, and at that time, there was a crew

    6 filming many of the details of the occurrence, and it

    7 has been shown here. Had there existed a machine gun

    8 nest in front of Dragan Papic's house, it is certain

    9 that the crew would have filmed that, because this

    10 house is quite near the road which the UNPROFOR

    11 vehicles were on. However, this very significant

    12 detail is absent from that footage; that is to say,

    13 Witness A is simply not saying the truth.

    14 The indictment also claims that Dragan Papic

    15 organised HVO soldiers and munitions and weapons. The

    16 position of Dragan Papic and his importance in Ahmici

    17 in no way enabled him to organise soldiers or weapons

    18 or ammunition, or anything else associated with

    19 military units. He had no political or military

    20 function whatsoever; he only was a soldier.

    21 The Prosecution has failed to prove that

    22 Dragan Papic prepared his house and his relative's

    23 house as a staging area and final location for the

    24 attack. First of all, in order to be able to do that,

    25 he would have had to know that there was an imminent

  51. 1attack, but he didn't know anything about it. On the

    2 15th of April, 1993, a day prior to the critical day,

    3 during the working hours, he was at his work post, and

    4 thereafter he was repairing cars, as testified to here

    5 by Goran Papic.

    6 In addition to that, there was also with him

    7 his wife, who was about to give birth, and in such a

    8 situation, it would only be an insane man, a lunatic

    9 who would give his house for a staging area, or keep

    10 weapons and ammunition stored in his house. In

    11 addition, there were also another two women in the

    12 house, his mother and his sister, and I'm sure it's

    13 obvious that they would not have allowed that. This is

    14 why we find unacceptable the statements of the

    15 witnesses of the Prosecution which charge Dragan Papic

    16 so.

    17 These witnesses are frustrated people, due to

    18 their experience, and they are also under the constant

    19 pressure of the Muslim Secret Service. It is highly

    20 indicative that numerous witnesses have changed every

    21 new statement to the investigator, before the Trial

    22 Chamber, and expanded the charges vis-à-vis Dragan

    23 Papic with every successive statement.

    24 In the early morning hours of the 16th of

    25 April, 1993, when the shooting started, most of the

  52. 1Croats started fleeing as well, seeking shelter and

    2 taking shelter. Most of the population had no idea

    3 either who was attacking, nor what the proportions or

    4 the objectives of the attack were. They were all

    5 equally frightened and they were all equally ignorant

    6 of what was actually going on.

    7 Therefore, Dragan Papic could not have

    8 concealed from other Muslim inhabitants that an attack

    9 was imminent because he was not aware of it himself.

    10 The indictment claims that Dragan Papic was

    11 an HVO soldier. Dragan Papic became a soldier when he

    12 was mobilised, and this mobilisation was carried out

    13 starting from the 16th of April, 1993. He got an

    14 official summons after his wife gave birth. Therefore,

    15 Dragan Papic is the last person on the list of

    16 mobilised persons, under number 349. This is

    17 Prosecutor's Exhibit P335.

    18 The Defence will briefly recall some of the

    19 other Prosecution witnesses who indict Dragan Papic.

    20 Charles Stevens, only towards the end of the

    21 second day of his testimony here in court, recognised

    22 Dragan Papic. All of us here in this courtroom

    23 remember that moment very well because, after that, the

    24 Trial Chamber issued a new ruling in respect of

    25 contacts with witnesses by the Defence and the

  53. 1Prosecution. Obviously, he got confused in terms of

    2 the person he talked to for the first and last time in

    3 Ahmici, mentioning him as Dragan Papic; namely, the

    4 mentioned witness, in response to the question put by

    5 the Defence, said that he could not recognise Dragan

    6 Papic with 100 per cent certainty because the person he

    7 communicated with, mostly in sign language, for 20

    8 minutes and who boasted to him of having killed 32

    9 Muslims did not wear a beard; whereas the person he

    10 recognised in the courtroom as the person with whom he

    11 had contact did have a beard.

    12 The Defence proved through D5, and that is a

    13 videocassette, as well as through many witness

    14 statements, it ascertained that at that time Dragan

    15 Papic did wear a beard, not the kind that he had in the

    16 courtroom at that time but a big beard, a very

    17 noticeable one.

    18 It was also mentioned in passing that expert

    19 witness Wagenaar stated that to remember a face one had

    20 never seen before is hardly possible after six weeks'

    21 time, and in the case of Witness Stevens, it is not a

    22 six-week period but a six-year period that is in

    23 question.

    24 On the basis of all of this, and on the basis

    25 of the Prosecutor's closing argument, it seems that he

  54. 1still believes this witness because he has no reason

    2 not to speak the truth.

    3 I wish to recall the first indictment that

    4 was issued against Dragan Papic in 1995, when also a

    5 witness said before the investigator that he made

    6 Muslim prisoners dig trenches in Pirici and that on

    7 that occasion, Dragan Papic killed Jusuf Ibrakovic.

    8 Obviously, that witness got confused too because the

    9 indictment was amended after it was ascertained that

    10 the perpetrator was not Dragan Papic but another

    11 person.

    12 Witness G claims that on the 16th of April,

    13 1993 he saw Dragan Papic with a rifle in his hands, in

    14 the presence of two soldiers in front of the house of

    15 Husein Ahmic and that the person in question was lying

    16 dead on the ground. Although this witness said in his

    17 previous statements that Dragan Papic was always

    18 wearing a black uniform, now all of a sudden he said

    19 that he was wearing a camouflage, with a cap on his

    20 head. The Defence wishes to emphasise that this

    21 witness is the only Prosecution witness who claims to

    22 have seen Dragan Papic on the 16th of April, 1993 in

    23 Ahmici.

    24 However, as regards this same event, on the

    25 16th of April, 1993, in front of the house of Husein

  55. 1Ahmic, Witnesses E, F, and CC, Prosecution witnesses,

    2 gave evidence concerning the same matter, but none of

    3 them mentioned Dragan Papic. All of them spoke of

    4 soldiers only, although they know Dragan Papic well.

    5 So Dragan Papic was recognised only by

    6 Witness G, who at the time was only 13 years old, who

    7 was terrified, whose family had been killed then, who

    8 was in a state of shock, and who had lost consciousness

    9 several times on that day because he had been wounded.

    10 Witness G seriously indicted Dragan Papic,

    11 brought serious charges against him only in 1998. Then

    12 finally, the investigator, who was taking the

    13 statement, asked him why this was the first time he had

    14 spoken about this in this way, although he had given

    15 statements previously as well, starting from 1993

    16 onwards. In response to a question put by the Defence,

    17 the witness said that he had never mentioned this

    18 before because he was afraid of Dragan Papic. This

    19 assertion of his is unacceptable because, after the

    20 war, he came to Ahmici several times, including Papic's

    21 house, offering his land for sale, saying that he

    22 wanted to go abroad. Vlatko Kupreskic was also heard

    23 as a witness here, and he said that Witness G offered

    24 him his land for sale too.

    25 Witness G is not a reliable witness, and the

  56. 1most telling proof of this is that he stated that on

    2 the 15th of April, 1993, Croat children did not attend

    3 school in Ahmici because they all knew in advance what

    4 would happen the next day, which is in contradiction

    5 with the statement made by Fikreta Vidovic, the

    6 teacher, and also the statement of Witness H, who said

    7 that all Croat children had been to school that day.

    8 Dragan Papic, on the 16th of April, 1993, did

    9 not help or support the killing of Muslims. The

    10 Defence claims that the established facts prove

    11 unequivocally that he was not in Ahmici on that day, he

    12 was at Radak's Bridge, and that from there he could not

    13 have seen or known what was going on in Ahmici. Ahmici

    14 cannot be seen from Radak's Bridge, and Ivo Vidovic

    15 gave evidence to that effect. He stood guard with

    16 Dragan Papic and said that no one was allowed to leave

    17 his guard post, and Dragan Papic was present there

    18 throughout.

    19 Zvonimir Santic said the identical thing, and

    20 he was incessantly on guard on that day and the

    21 previous day for 30 hours. In addition, Ljubica

    22 Milicevic, a witness, stated that she saw Dragan Papic

    23 around the bridge when she went to the spring to fetch

    24 some water.

    25 Even if Dragan Papic had found out on the

  57. 1next day what had happened in Ahmici, his behaviour

    2 could not be qualified as supporting the persecution of

    3 Muslims.

    4 In the early morning hours of the 16th of

    5 April, 1993, shooting started, and Dragan Papic,

    6 together with his wife, mother, and sister, fled as

    7 fast as he could to Donja Rovna, and he encountered

    8 Nenad Santic, who expected him to go that way, and he

    9 lived in the neighbourhood as well. As commander of

    10 the village guard, he sent him to Radak's Bridge.

    11 Nenad Santic at that time was not an HVO soldier and he

    12 did not have anything to do with the HVO; he was simply

    13 in charge of the village guards, as several witness

    14 statements have shown. Nenad Santic, until the war,

    15 was employed at the gasoline station in Vitez, as

    16 presented by Witness Ivo Vidovic, and later, he was

    17 mobilised like everyone else, and he was killed at the

    18 front line.

    19 In the municipality of Vitez, the HVO did not

    20 have any communication whatsoever with the village

    21 guards in terms of command, organisation, armament,

    22 supervision, et cetera. The situation was quite

    23 different in the area of the municipality of Busovaca

    24 because the war broke out there in January 1993.

    25 Therefore, there was a kind of relationship

  58. 1between the village guards and the HVO, and Zvonimir

    2 Santic, a witness, also spoke about this. He was the

    3 commander of the village guards in Donja Rovna, and, as

    4 we know, Donja Rovna belongs to the municipality of

    5 Busovaca. Therefore, this relationship between the HVO

    6 and the village guards in the municipality of Busovaca

    7 cannot be viewed as an analogy to the municipality of

    8 Vitez.

    9 The witnesses who testified during the

    10 Prosecution case that Dragan Papic was a participant in

    11 the persecutions are traumatised persons and victims of

    12 the conflict on the 16th of April, 1993. These persons

    13 were forced to bury their dead, to leave their

    14 destroyed homes, to heal their wounds, to leave Ahmici,

    15 where they had been born and where they had lived. Due

    16 to all of that, their truth is a partial, subjective

    17 truth. Therefore, for the greater part, their

    18 testimonies are unacceptable.

    19 Again, the Defence wishes to quote Professor

    20 Wagenaar, who said that persons who are very emotional

    21 cannot be rational in their positions. The witness

    22 Abdulah Ahmic, on the basis of his alleged conversation

    23 with Dragan Papic, as far back as 1991, concluded that

    24 the entire Croatian population was, in his opinion,

    25 getting ready to attack the Muslim population, although

  59. 1at that time there were no hints whatsoever that there

    2 could be a war between the Croats and the Muslims. The

    3 Serbs were the enemies of the Croats, and they waged

    4 war against them, not the Muslims.

    5 Abdulah Ahmic also claimed here in court that

    6 Dragan Papic was in uniform and that he carried a

    7 sniper and that precisely on the 20th of October, 1992,

    8 from Papic's house, sniper shooting came, in his

    9 opinion, when he was 300 metres away. Although he

    10 previously talked to the investigators, Ahmic never

    11 mentioned that, just like many other details.

    12 The Defence believes that this witness was

    13 very upset because of the suffering of the members of

    14 his family and that, in the courtroom, he talked under

    15 the influence of all these events. Also, Mehmed Ahmic

    16 testified here in this court that Dragan Papic could

    17 not have carried a sniper because he did not have one,

    18 and that is what Defence witnesses talked about.

    19 Dragan Papic had an ordinary rifle that had been issued

    20 to him by his company.

    21 Abdulah Ahmic, in response to a question put

    22 by the Defence as to how he knew that from a 300-metre

    23 distance he was shot at by a sniper, he answered that

    24 it must have been a sniper because the targeting was so

    25 precise; that is to say, Abdulah Ahmic knows exactly

  60. 1where the shooting came from, he knew that the

    2 targeting was very precise, and he therefore believes

    3 that it was a sniper, although with all this precision,

    4 he had not been hit. What can we say about what

    5 Abdulah Ahmic also said, that on one occasion, between

    6 the two conflicts, he saw Dragan Papic carrying some

    7 kind of a strangling device? It is, indeed, strange

    8 how, out of this entire arsenal of weapons, Dragan

    9 Papic did not kill anyone or strangle someone with the

    10 above-mentioned device.

    11 The witness Fahrudin Ahmic, the Prosecutor

    12 believes that his testimony is reliable too, although

    13 he considerably changed his statement while testifying

    14 in court in relation to what he had said to the

    15 investigator. Some of the things he told the

    16 investigator he never mentioned in the courtroom, and

    17 he said that others were a mistake because he had been

    18 confused. In the courtroom, he said that, on the 16th

    19 of April, 1993, he heard shooting from the house of

    20 Dragan Papic, although it is actually the house of Ivo

    21 Papic that is concerned. This witness, like all

    22 others, knows this very well, but, of course, Dragan

    23 Papic had to be mentioned in any context. It is quite

    24 incredible that when there is shooting all over the

    25 place, the witness can assess that the shooting was

  61. 1coming exactly from Papic's house and that he can hear

    2 the shooting coming from Papic's house, although he

    3 cannot see it.

    4 Later, when he was wounded, he claims that he

    5 saw fire from a bullet, and he also noticed two

    6 soldiers in front of Papic's house who were bent over.

    7 Fahrudin Ahmic claimed to the investigators that he was

    8 wounded as he was getting out of the house of Hilmija

    9 Ahmic and that it was precisely then that he saw rifle

    10 fire from Dragan Papic's house.

    11 On the basis of the statement made to the

    12 investigator, the Defence made a video from all these

    13 positions that were mentioned during that statement and

    14 ascertained that from Hilmija's yard, one cannot see

    15 Papic's house, only the top of the roof, let alone the

    16 yard itself, where this witness claims to have seen two

    17 soldiers. The Defence also asserted the reverse; that

    18 is to say, that from the windows of Papic's house, one

    19 cannot see at all the window in front of Hilmija

    20 Ahmic's house because one cannot see it from the other

    21 houses, and also from the vegetation; however, Fahrudin

    22 Ahmic remembered, or somebody told him, that this

    23 filming had been made and that his statement could be

    24 double-checked that way, and then in the courtroom, he

    25 changed his statement, saying that he was wounded at

  62. 1another place, much further away from Hilmija Ahmic's

    2 house where Dragan Papic's house can be seen easily.

    3 He also added that the shooting was coming

    4 from Mehmed Ahmic's house, and of course no one lived

    5 there at the time.

    6 Therefore, the Defence proposed that the

    7 statement made by Fahrudin Ahmic to the investigators

    8 be admitted into evidence so that the Trial Chamber

    9 could see how significant the differences are in his

    10 different statements.

    11 The Defence claims that on the 16th of April,

    12 1993, in the house of Ivo Papic, during the day there

    13 were none of the persons who actually lived in that

    14 house because everyone left the house that day after

    15 the shooting started in the early morning hours.

    16 Whether some of the soldiers got into the

    17 house or not or were around the house, that is

    18 something no member of the Papic family knows.

    19 In his final brief, the Prosecutor shows the

    20 link between Dragan Papic and the HVO, stating that

    21 Dragan Papic allowed his house to be used, as well as

    22 his land, on numerous occasions, and that the HVO had a

    23 high degree of activity there not only during the first

    24 and second conflict but also on other occasions.

    25 First of all, the Defence wishes to say that

  63. 1on the basis of witness statements, the Prosecutor in

    2 this is misstating that this is Dragan Papic's house.

    3 This is the land, forest, and house of Ivo Papic. Ivo

    4 Papic lives in this house to the present day, whereas

    5 Dragan Papic, in 1995, moved with his family to Vitez.

    6 The Papic family is a very patriarchal family and the

    7 witnesses of the Prosecution know very well that Ivo

    8 Papic is the Lord and master in that house.

    9 In addition to that, the forest where the

    10 shooting came from is to a lesser extent the property

    11 of Ivo Papic and to a greater extent the property of

    12 other persons, and even on the assumption that the

    13 shooting came from that forest, the question remains

    14 whether the owners could have opposed the military

    15 units and whether the soldiers would have listened to

    16 them and left the forest altogether.

    17 What is there to be said about Witness B, on

    18 whom the Prosecutor also relies, and who charges Dragan

    19 Papic with participating in the guarding of checkpoints

    20 and setting up roadblocks, and says that he even

    21 commanded a roadblock.

    22 With regard to Witness B, the Defence wishes

    23 to say that this witness, about the checkpoint which

    24 was set up previously, stated that it was set up by the

    25 Croats, and he presented Dragan Papic as some kind of

  64. 1commander at that roadblock.

    2 Mehmed Ahmic himself, during his testimony,

    3 at the insisting of the Defence, later admitted, very

    4 reluctantly, that this roadblock was actually set up by

    5 the Muslims even before the first clash. It was set up

    6 in front of his house and that he himself asked for it

    7 to be moved. So it was moved to a place near Dragan

    8 Papic's house, but he represented it as having been set

    9 up by the Croats between the two clashes and accused

    10 Dragan Papic of this although he had nothing to do with

    11 it.

    12 Who is Witness B? Witness B was, first of

    13 all, a professional officer in the JNA. Then he joined

    14 the army of Bosnia and Herzegovina and was a security

    15 officer there. He came to Ahmici very rarely, and now

    16 suddenly between the two clashes he says he saw Papic

    17 in compromising situations.

    18 It is not clear what Witness B was doing in

    19 Ahmici at all, since he was an officer in the army of

    20 Bosnia and Herzegovina at that time. Should he have

    21 not been in the zone of operations or was he ordered to

    22 go to Ahmici? This witness and the members of his

    23 family have reason to accuse the Croats who lived in

    24 Ahmici at the time of the conflict. The Defence wishes

    25 to stress that Witness B is the son of Witness KL and

  65. 1the brother of Witness EE. The fact that relatives of

    2 this witness suffered, shows quite clearly that they

    3 were traumatised, and they are representing what they

    4 supposed to have happened as the absolute truth.

    5 Several Prosecution witnesses allege to have

    6 seen various kinds of weapons in front of his house: a

    7 machine gun, an anti-aircraft gun, various kinds of

    8 guns, and they all mention different positions. Some

    9 say there was sandbags in front of it. Others say

    10 there was concrete blocks. Some say that the machine

    11 gun nest was on the left side of the house; others say

    12 it was on the right side. A third witness says it was

    13 50 metres away from the house and closer to the other

    14 houses.

    15 Witness D, mentioned by the Prosecutor in his

    16 closing brief, who says this witness allegedly saw

    17 shooting with incendiary bullets from the direction of

    18 Zume, of Radak, but also from Papic's house before the

    19 16th of April 1993, but we may ask what this witness

    20 actually saw and heard.

    21 The same witness also claimed to have seen

    22 Dragan Papic going to the Bungalow, but to a question

    23 put by the Defence, she finally answered that she did

    24 not actually see this but only supposed he had gone

    25 there because there was nowhere else for him to go.

  66. 1In his closing brief, the Prosecutor claims

    2 that HVO records show that Dragan Papic was part of a

    3 battalion in Novi Travnik, from the 22nd of February,

    4 1993, as a courier, but this is contrary to the claims

    5 that he held an important post, because to be a courier

    6 is the least important post one can hold.

    7 This is contrary to the testimony of

    8 Witness B, to the list of people in Vitez, according to

    9 which Dragan Papic was the member of -- was a member of

    10 a regiment in Vitez, home guard regiment in Vitez, and

    11 this data demonstrates the questionable nature of much

    12 of the evidence presented by the Prosecution,

    13 especially as regards Exhibit B351. This list includes

    14 many names for women, elderly men, even Muslims,

    15 including the Muslim midwife who attended Papic's wife,

    16 and the Defence has demonstrated that this list was

    17 drawn up for the purpose of issuing shares and there

    18 was no home guard regiment at all. It did not exist at

    19 that time. But I will not going into this because my

    20 colleague has already spoken about it.

    21 In his closing brief, the Prosecutor mentions

    22 mobilisation during a certain period of time, and

    23 Dragan Papic was a reservist and could not have been an

    24 HVO soldier.

    25 In his closing brief, the Prosecutor claims

  67. 1that Defence witnesses are unreliable, and although the

    2 Prosecutor does not deny that Dragan Papic guarded

    3 Radak's bridge for a time, he says that he was not

    4 there all the time, and he doubts witness Ivo Vidovic

    5 because he said that he did not know that the village

    6 guards were involved in the conflict of the 20th of

    7 October, 1992.

    8 Dragan Papic had his work, and he was busy

    9 with his work day and night, and he could not know --

    10 was Ivo Papic supposed to know about agreements between

    11 the Croats or Muslims or the names of certain units.

    12 There are simply people who are not interested in such

    13 matters, just as there are others who are but are not

    14 interested in something else.

    15 Furthermore, Ivo Vidovic did not deny that

    16 many Muslims were killed in Ahmici, as the Prosecutor

    17 says, but he only said that he learned about the extent

    18 of this as time went by, gradually, and not in the

    19 beginning while he was standing guard at Radak's

    20 bridge.

    21 The Prosecutor also doubts the testimony of

    22 Zvonimir Santic, who was standing guard on the other

    23 side of the bridge, although he -- because he was able

    24 to say who was standing guard on one side of the bridge

    25 but not on the other.

  68. 1However, there is a logical explanation for

    2 this, because there were only two persons standing

    3 guard on one side and many more of them on the other

    4 side. At least ten people were involved and they took

    5 turns, but Zvonimir Santic, as the commander, was there

    6 most often. So there is nothing strange in the fact

    7 that he does not remember who was with him at any given

    8 moment.

    9 The Prosecutor also doubts the testimony of

    10 Goran Papic, and the Prosecutor believes that only

    11 Prosecution witnesses are telling the truth, although,

    12 there are many parts of their testimony that are

    13 illogical, that do not correspond to each other.

    14 I would like to mention that Defence

    15 witnesses also mention a 60-millimetre mortar which

    16 Dragan Papic had. I would like to say that none of the

    17 Prosecution witnesses mentioned this weapon. Had

    18 Defence witnesses been unreliable, they would not have

    19 mentioned this weapon, which was used by the

    20 Prosecution later on to incriminate him.

    21 He learned to use this weapon in the JNA,

    22 just as he learned to handle a M-48 rifle, and it is

    23 because of this that Nenad Santic gave Dragan Papic

    24 this mortar.

    25 The testimony of witness Ljubica Milicevic is

  69. 1also unreliable as is the testimony with Zdenko Rajic,

    2 but I do not have time to elaborate on this.

    3 The Prosecutor does not believe that Dragan

    4 Papic, before the gunfire broke out on the 16th of

    5 April, 1993, did not know that there was to be an

    6 attack on Ahmici, because Dragan Vidovic said a meeting

    7 was held in Jozo Livancic's house on that morning where

    8 it was concluded that the members of the village guard

    9 should tell everybody else that there was going to be

    10 an attack and they should evacuate their families on

    11 time. This shows that Dragan Papic was not a regular

    12 member of the village guard, and no one informed

    13 Papic's family about the imminent attack because they

    14 thought that this family that was in the lower part of

    15 the village would be able to go to Donja Rovna easily

    16 and that it was more important to inform the

    17 inhabitants of the middle and upper part of the

    18 village.

    19 The Prosecutor does not deny that before the

    20 war Dragan Papic was on good terms with Muslims, but

    21 referring to the expert witness Tone Bringa, he says

    22 that due to the mounting tension and hostilities, these

    23 relations changed in character. However, the Defence

    24 says that it is not only the Croats but also the

    25 Muslims who changed because mounting tension and

  70. 1hostilities cannot change the character of only one

    2 side and not the other. That is why a number of

    3 witnesses tried to lay as much as possible on Dragan

    4 Papic, even things that are absurd.

    5 JUDGE CASSESE: Counsel Puliselic, your time

    6 is up. I wonder if you could wrap up in one or two

    7 minutes.

    8 MR. PULISELIC: Yes, I will.

    9 The Prosecutor mentioned that there were no

    10 extenuating circumstances in favour of the accused

    11 because they did not cooperate with the Prosecution.

    12 The Defence considers that cooperation with the

    13 Prosecution is not the only extenuating circumstance

    14 that should be taken into account. The courts in the

    15 former Yugoslavia would have seen the fact that Dragan

    16 Papic gave himself up voluntarily as an extenuating

    17 circumstance, after he learned that an indictment had

    18 been raised against him.

    19 Furthermore, he has family and small

    20 children, and his wife is unemployed. This is also an

    21 extenuating circumstance.

    22 Another extenuating circumstance is the fact

    23 that Dragan Papic has no previous criminal record, and

    24 he never had any problems with the law.

    25 Finally, it should be borne in mind that in

  71. 1detention, where he has been for over two years, he

    2 behaved well and was disciplined and did not come into

    3 conflict with anyone, which the Court can easily

    4 check.

    5 The Defence considers that the evidence

    6 presented by the Prosecution does not show reliably

    7 that Dragan Papic contributed to a policy of

    8 persecution as the Prosecutor claims, because Dragan

    9 Papic did not know that there was an alleged policy of

    10 persecution of Muslims, nor was he in Ahmici on the day

    11 that the crime occurred.

    12 The Defence proposes that the Court accept

    13 the facts put forward in the final brief of the Defence

    14 and acquit Dragan Papic fully. Thank you.

    15 JUDGE CASSESE: Thank you. Before we

    16 adjourn, let me rectify our previous ruling about

    17 confidential documents. I mentioned only in addition

    18 to the final brief by the Prosecutor the closing briefs

    19 by Counsel Krajina, but I realise that also other

    20 briefs were filed confidentially, the one by

    21 Counsel Slokovic-Glumac, Counsel Radovic, and

    22 Counsel Susak. Of course, what we decided before also

    23 applies to this and other closing briefs. They all

    24 will be treated as non-confidential and so they will

    25 become public documents.

  72. 1We will adjourn now for ten minutes.

    2 --- Recess taken at 12.22 p.m.

    3 --- On resuming at 12.37 p.m.

    4 JUDGE CASSESE: Before calling upon Counsel

    5 Pavkovic, let me say that we have decided to deny the

    6 motion orally filed by Counsel Susak concerning the

    7 provisional release of Mr. Josipovic, and this is for

    8 the same reasons as those mentioned before and

    9 concerning the other three motions for provisional

    10 release.

    11 Counsel Pavkovic.

    12 MR. PAVKOVIC: Thank you, Mr. President.

    13 Mr. President, Your Honours, in this final

    14 moment of this rather exhaustive and long debate, I'm

    15 fully convinced that in your minds, the conviction has

    16 already prevailed as to the decision to be brought in

    17 respect of Vladimir Santic.

    18 Numerous witnesses have been heard on both

    19 sides, experts have been heard who have helped us

    20 jurists resolve some dilemmas which fall outside our

    21 own professional competence, you have seen numerous

    22 exhibits and pieces of evidence, and is your conviction

    23 that the defendant Vladimir Santic is guilty or

    24 innocent?

    25 I'm certain that this second conviction has

  73. 1prevailed in your minds that Vladimir Santic is not

    2 guilty as charged under any of the counts of the

    3 indictment, and if that is indeed so, my task at this

    4 particular moment is, indeed, a modest one. I shall

    5 only, on the basis of a sober assessment of all the

    6 evidence presented, point to the reasons wherefore you,

    7 Your Honours, could pronounce Vladimir Santic not

    8 guilty with a very peaceful conscience.

    9 In its closing arguments and closing brief,

    10 the Prosecution, very knowledgeably recalling the tragic

    11 events of the 16th of April, 1993, aroused emotions

    12 towards which no one can be indifferent, neither then

    13 nor now. After all these witnesses have passed through

    14 the court chamber, no one can remain indifferent to

    15 crime, if not directly affected by it.

    16 I am convinced that this Trial Chamber will

    17 preserve judiciousness and only weigh the proved facts,

    18 as is indeed incumbent upon you by your conscience and

    19 by your honour as Judges.

    20 My distinguished colleagues, counsel for the

    21 Defence, prior to my own exposition, have already

    22 discussed a number of issues which have to do with the

    23 defence for Vladimir Santic, and I shall not repeat

    24 those. I support their positions, especially the

    25 positions of my learned colleague Susak, because, by

  74. 1the indictment, the Prosecution charged both his and my

    2 defendant for the same offences.

    3 The only thing which I do have to notice and

    4 say about the fact that the defence of Vladimir Santic

    5 does not subscribe to that is by my learned colleague

    6 Slokovic, and I quote, she said, "The complete unit of

    7 the military police participated in the attack on

    8 Ahmici." I am convinced that this was a slip of the

    9 tongue; however, even if that were not so -- and it

    10 is -- I will warn when the right moment comes, I'll

    11 point to some considerations which highly bring this

    12 proposition into question. It is not just a matter of

    13 statements by witnesses but it's a matter of material

    14 proof which will prove, in a most reliable way, that

    15 this was a statement which was incorrect. The

    16 statement I'm referring to is "The complete unit ..."

    17 the whole unit, "... of the military police

    18 participated ..."

    19 At this point, I should like to say a few

    20 words about the amended indictment and the actual

    21 charges in that indictment against my client, Vladimir

    22 Santic. To remind you, the Prosecutor charges Vladimir

    23 Santic with a crime against humanity, persecution on

    24 religious and national grounds, and expounds in more

    25 detail his charges in paragraphs 9, 10, 20, and 21, but

  75. 1basically, his charges could be summed up as follows:

    2 The defendant, in union with others,

    3 defendants, of course, with other -- some of them

    4 defendants -- members of the HVO, being a soldier,

    5 participated in the attack on Ahmici on the 16th of

    6 April, 1993. It was the intention, as the Prosecutor

    7 claims, to cleanse the Bosnian Muslims from that area,

    8 and in pursuance of that intention, the defendant

    9 undertook actions to deliberately persecute the Muslims

    10 and bring about their destruction on a wide scale.

    11 The Prosecutor also charged Vladimir Santic

    12 with violation of the laws or customs of war, which

    13 offence he legally characterised as murders or cruel

    14 treatment.

    15 Before I start to analyse the thesis of the

    16 Prosecutor, I should like to point out to Your Honours

    17 a peculiar characteristic which I should like to ask

    18 you to bear in mind, hoping that it certainly deserves

    19 your attention; namely, in his amended indictment, the

    20 Prosecutor has charged Vladimir Santic exclusively as

    21 an HVO soldier, and everything that he alleges in that

    22 indictment was based, by the Prosecutor, on that

    23 particular position or those particular grounds, the

    24 defendant being an HVO soldier.

    25 However, in his closing brief, and

  76. 1particularly in his closing oral presentation, the

    2 Prosecutor concentrated all of his thesis in order to

    3 prove that he was primarily responsible for having

    4 commanded his inferiors to undertake persecution

    5 actions in Ahmici on the relevant dates. He says that

    6 my client had a commanding role in the military police,

    7 that he was a commander and that he conveyed orders,

    8 which he supplemented with his own orders, that he

    9 conveyed orders from the superiors, and he held the

    10 duty of commander and issued commands and orders.

    11 This is, for the first time, in contravention

    12 of the confirmed indictment, and despite it, where he

    13 was treated only as an HVO soldier, in this argument,

    14 he was placed in the role of a commander and the

    15 commanding officer, and it is upon those grounds that

    16 the Prosecutor actually constructed his culpability.

    17 The Defence is deeply troubled by this way of

    18 proceeding and wonders then what is the sense of the

    19 confirming of the indictment by the Court if the

    20 Prosecutor is able, of his own will, to thus change the

    21 Rules of Procedure? Does this not then call into

    22 question the fairness principle, not to mention the

    23 dilemmas that the Defence was faced with? Does the

    24 accused have the right to defend himself only against

    25 the charges that have been alleged against to him, or

  77. 1can there be some new ones?

    2 The Prosecutor will even object to the

    3 Defence that it failed to provide evidence with respect

    4 to the fact that the defendant was the commander of the

    5 1st Company of the military police in the relevant

    6 place, and that is paragraph 1061 on pages 222 and on.

    7 In all fairness, formally observed, the

    8 Prosecutor will refer to, will invoke Article 7,

    9 paragraph 1 of the Statute, but in terms of the

    10 substance of his claim, it will be possible to conclude

    11 that he is, in fact, charging Vladimir Santic under

    12 paragraph 3 of that article, because he says, in his

    13 closing brief, the responsibility arises from his

    14 omission or failure to punish his inferiors for the

    15 crimes committed by them.

    16 I felt the need, Your Honours, to point to

    17 this particular consideration, and it is for you to

    18 evaluate the relevance of this. I do feel that it is

    19 relevant, and I shall adduce my reasons for this

    20 opinion because that is actually the basic thread of

    21 this line of defence.

    22 In my further exposition, I will deal with

    23 the Prosecution's argumentation whereby he corroborated

    24 or, rather, sought to corroborate his charges as

    25 legitimate, and then I shall try to explain what would

  78. 1have happened had the Prosecutor charged the defendant

    2 on these grounds, which he actually did do in this

    3 final portion of the proceedings, in order to prove

    4 that in that case, the defendant Vlado Santic is in no

    5 way associated with the events in Ahmici on the 16th of

    6 April, 1993, and particularly not in the way propounded

    7 by the Prosecution.

    8 The amended indictment on persecution based

    9 on religious and national grounds, in order to prove

    10 his thesis of the persecution of the Bosnian Muslims,

    11 the Prosecution summoned several witnesses to this

    12 court, and they have given testimony in this chamber.

    13 In all fairness, the Defence did not know and

    14 was unable to find out, in some situations did not know

    15 what witnesses the Prosecution was trying to use in

    16 order to corroborate its claims that the defendant had

    17 indeed committed those offences. I, as the Defence

    18 counsel, needless to say, concentrated not only on the

    19 thesis but the argumentation to be used to corroborate

    20 that claim.

    21 Accordingly, I decided to take under

    22 consideration all the testimonies of all witnesses who

    23 mentioned Vladimir Santic at all in their statements,

    24 and after an evaluation of all these statements, of all

    25 these testimonies, I concluded that the Prosecutor has

  79. 1failed to prove beyond a reasonable doubt that the

    2 defendant Vladimir Santic had directly participated in

    3 the events in Ahmici on the 16th of April, 1993, nor

    4 had he been associated with those events, involved in

    5 those events in any way whatsoever; rather, the

    6 defendant, and I will prove and show that later, just

    7 happened to be there when the events in question took

    8 place, and I shall explain that in more detail during

    9 the further course of my statement.

    10 Thus, the -- in order to support his claims,

    11 the Prosecutor summoned Witnesses B, AA, Sulejman

    12 Kavazovic, Zaim Kablar, Lee Whitworth, and Witness EE.

    13 If we exclude Witness EE, and we do have to

    14 exclude this witness at this particular point because I

    15 will be devoting special attention to Witness EE,

    16 because it is on the testimony of that witness that the

    17 Prosecutor grounds another of his theses in the

    18 indictment. So if we leave that witness aside for the

    19 time being, and that is the only witness who claims

    20 that on the 16th of April Vlado Santic had been in

    21 Ahmici, I then wonder what the other witnesses invited

    22 by the Prosecutor are saying in their statements.

    23 Witness B. He, as the Defence perceives,

    24 should have served for the Prosecution to prove that

    25 immediately prior to this conflict, the defendant had

  80. 1some sort of an association with the unit which,

    2 according to the Prosecution, directly participated in

    3 the conflict in question.

    4 According to the statement of this witness,

    5 Santic, on the night -- on the eve of the attack, was

    6 seen in the Bungalow where he allegedly conveyed

    7 certain orders.

    8 The fact that this is a hearsay witness is

    9 not what I'm invoking as an argument in order to object

    10 to the credibility of his statement. What it is is

    11 that it is an unreliable statement because it is

    12 grounded on the unreliable facts; namely, that witness

    13 did not have full insight into the actual state of

    14 affairs; namely, the witness said that in Stari Vitez

    15 he was present when a young HVO prisoner was being

    16 questioned, which prisoner had allegedly said, having

    17 been a member of the HVO, that one evening Vladimir

    18 Santic came to the Bungalow and conveyed these orders.

    19 First of all, this witness, according to his

    20 own admission, was not present throughout the

    21 questioning of that witness. Secondly, this young

    22 soldier, the prisoner, never returned after having been

    23 imprisoned. Thirdly, and most importantly, when the

    24 witness claimed that this questioning was carried out

    25 in accordance with the Geneva Conventions on the

  81. 1treatment of prisoners, it would be expected that there

    2 is some kind of a written record of that.

    3 I wish to recall that in response to your

    4 question, Mr. President, as to whether there was any

    5 trace of that, whether there was a record of that, the

    6 Prosecution answered that there was not, that there was

    7 no record. That is why I bring into question

    8 everything this witness said. And I believe that this

    9 witness's statement cannot be the basis for any kind of

    10 conclusion that Vlado Santic was in the place where

    11 this witness said he was and that Vlado Santic uttered

    12 the words that the witness asserted he uttered.

    13 I also have to reiterate what my colleague

    14 Mr. Puliselic said; that is to say, that Witness EE's

    15 brother is the other witness mentioned, but that is

    16 something that I will go back to later.

    17 Witness AA. When we see how much time the

    18 Prosecutor devoted to this witness's questioning,

    19 including the statement he made before trial, we can

    20 conclude that this is a very important witness for the

    21 Prosecutor and that is the way he was treated during

    22 the proceedings. This seems to be a relevant witness,

    23 therefore.

    24 The information proffered by this witness

    25 were many-fold. He belonged to the military police

  82. 1and, therefore, the Prosecutor believes that he had at

    2 his disposal such information that he could corroborate

    3 his thesis about the role of Vlado Santic. However,

    4 all these statements that he made should actually be

    5 categorised as statements related to relevant facts

    6 pertaining to the persecution of Bosnian Muslims,

    7 because Witness EE is a Muslim. Also, those theses

    8 which speak about the relationship between the witness

    9 and Vlado Santic, and a great deal of information which

    10 is irrelevant, at least in terms of that which the

    11 Prosecutor seeks to prove.

    12 There is no contest that the witness knows

    13 Vlado Santic. It is not contested that he has known

    14 him for quite some time. It's also not contested that

    15 they both belong to the same unit of the military

    16 police, with the task, as this witness said, to guard

    17 the headquarters in the Vitez Hotel round the clock.

    18 It is also not contested that Vlado Santic, for a given

    19 period of time, was commander.

    20 However, ultimately the Prosecutor himself

    21 admits this when he analyses this witness's statement.

    22 The witness, on the 1st of April, 1993, left Vitez and

    23 the area, and he cannot say anything about the events

    24 of the 16th of April.

    25 In order to support his thesis about the

  83. 1reliability of this witness, the Prosecutor says in his

    2 final brief that there is no animosity between Vlado

    3 Santic and this witness. That is not true. On the

    4 contrary. There is an animosity and quite an animosity

    5 at that. Of course, this casts a shadow of doubt on

    6 the reliability of that witness.

    7 I shall remind you that the witness admitted

    8 here before you that together with a few other persons,

    9 he threw a grenade at a kiosk that was owned by Vlado

    10 Santic's wife. He said so in this courtroom.

    11 Moreover, he said that he had kissed her before that.

    12 What does that mean, Your Honours? Is

    13 there -- is there some revenge involved in that? Isn't

    14 there something that has to bring into question all of

    15 this related to Vlado Santic?

    16 However, the key argument that the Prosecutor

    17 does not contest is that this witness left the area of

    18 Vitez, and that is what is of decisive importance and

    19 everything that could be linked to the testimony of

    20 this witness.

    21 I shall not go into an in-depth analysis

    22 which would show that the Prosecutor relies on

    23 inaccurate data. I shall illustrate this by pointing

    24 out the following: When a certain person named Bralo

    25 was in prison, Vlado Santic, according to the statement

  84. 1of this witness, was the one who had mistreated him.

    2 However, the witness said that this was done by Pasko

    3 Ljubicic. He actually expected help from him but he

    4 did not get it.

    5 Nevertheless, I would like to say, in

    6 relation to this witness, in conclusion, that you can

    7 see that this witness stated, in terms of his own

    8 relationship with Vlado Santic, that everything that

    9 was bad in their relationship is not a consequence of

    10 the fact that he was a Muslim. Vlado treated all

    11 equally.

    12 I shall particularly like to draw your

    13 attention to the fact that this witness, and I'm

    14 talking all within the context of the Prosecutor's

    15 thesis on the persecution of witness [sic], that this

    16 witness, in response to direct questions pertaining to

    17 his service in the military police, the military police

    18 did not aim its activities against the Muslim -- the

    19 Bosnian Muslims. They did not devastate their

    20 property, their houses, or jeopardise their lives.

    21 Sulejman Kavazovic and Zaim Kablar, two

    22 witnesses, speak of Vladimir Santic after 1993, the

    23 16th of April 1993.

    24 May I point out immediately that witness

    25 Kavazovic is a totally unreliable witness. He is a

  85. 1person who confused Vlado Santic, the accused, with

    2 another Vlado Santic.

    3 The witness described Vlado Santic as a

    4 person who had short dark hair. Vlado Santic, neither

    5 then nor now, had black hair. Truth to tell, the

    6 witness did say that he knew Vlado Santic and that he

    7 met him on one occasion at the hotel, when he came,

    8 when he was brought in.

    9 The Prosecutor said, in respect of that, that

    10 Vlado had some kind of duties with the intelligence

    11 service at the time. At that time Vlado was a police

    12 inspector.

    13 However, what absolutely corroborates this

    14 claim that witness Kavazovic substituted Vlado Santic

    15 for another person, and that is what we illustrated by

    16 D5 through 6 [sic]. If you remember this, although it

    17 is very difficult to recall each and every detail,

    18 witness Kavazovic said that he had a telephone

    19 conversation with Vlado Santic in those days, and he

    20 confirmed that this conversation took place from a

    21 telephone with a particular subscription number.

    22 The witness ascertained, in response to a

    23 question put by the Presiding Judge, whether it was

    24 precisely from that subscription number that he had

    25 this telephone conversation with Vlado Santic, the

  86. 1accused here, he answered yes.

    2 Document D5/6 shows that that telephone

    3 number -- actually, in that document there are the

    4 certificates issued by the post office and many

    5 others -- belongs to Vlado Santic but not the Vlado

    6 Santic that is accused here but this other Vlado

    7 Santic. So the witness did not tell the truth when he

    8 said that he had this conversation with Vlado Santic

    9 the accused.

    10 Zaim Kablar, a man who here in this courtroom

    11 thanked Vlado Santic and was happy to be in a position

    12 to do so, because he said that during those days Vlado

    13 Santic had saved him in those times of madness, when it

    14 was very important who would say what about him.

    15 However, in terms of the zone of responsibility,

    16 because the witness went out to dig trenches, what

    17 Vlado Santic actually had to do with this trench

    18 digging, this witness said that Vlado Santic had

    19 nothing to do with this. There were no lists, let

    20 alone anything made by Vlado Santic.

    21 They were taken away, and finally he came to

    22 the following conclusion: "Had Vlado Santic by any

    23 chance known that I was being taken away, he would have

    24 helped me."

    25 Witness Whitworth. It is difficult to say

  87. 1now what could be confirmed by this witness statement,

    2 except for the fact that he saw Vlado Santic at the

    3 Vitez Hotel. He said that he belonged to the local

    4 structures, that they were guarding the hotel, but he's

    5 not even sure of that. He did not say anything about

    6 the events of the 16th of April, 1993.

    7 So, Your Honours, those were all the

    8 witnesses who spoke in this courtroom and who were

    9 supposed to support the Prosecutor's thesis that Vlado

    10 Santic pursued a policy of ethnic cleansing of the

    11 Bosnian Muslims in the area of Central Bosnia, in

    12 Ahmici.

    13 As you can see, not a single one of these

    14 witnesses knows anything about the role of the accused

    15 in these events of the 16th of April, 1993 mentioned in

    16 the indictment. I should like to draw your attention

    17 to the fact that I shall speak about Witness EE later.

    18 The Defence is sure that it has not missed a

    19 single witness, and the Prosecutor, by calling these

    20 witnesses, did not prove any action committed by Vlado

    21 Santic, the accused, that could be characterised as

    22 persecution on ethnic, religious, or political

    23 grounds.

    24 According to the standards applied to date,

    25 those are the grounds that are required to be proven

  88. 1when one speaks of persecution on the basis of

    2 international law.

    3 May I just recall briefly the Prosecutor's

    4 amended indictment? He did not assist in the

    5 preparation of the attack on the 16th of April, 1993.

    6 Vlado Santic always lived in Vitez. He never

    7 lived in Ahmici. The Prosecutor asserts that he

    8 evacuated Bosnian Croat civilians on the previous

    9 night, organised weapons and ammunition, prepared his

    10 own home and the homes of his relatives as staging

    11 areas of attacks, and concealed from other inhabitants

    12 that there would be -- concealing from other residents

    13 that an attack was imminent.

    14 So what pertains to Vlado Santic and what

    15 does not pertain to Vlado Santic? The indictment would

    16 have to be very clearly specified. The acts would have

    17 to be fully defined, because that is the only way in

    18 which they can be proved or disproved.

    19 At this point in time, I have to recall that

    20 the Prosecutor, in his 30-page pre-trial brief, devoted

    21 only one sentence to Vlado Santic, saying that evidence

    22 will show that Vlado Santic took part in one case of

    23 murder, together with Drago Josipovic, and that's all.

    24 It's not that the Prosecutor was trying to spare Vlado

    25 Santic; he didn't have anything else to say.

  89. 1Now I should like Your Honours to deal with

    2 the Prosecutor's final brief. I already stated in my

    3 introductory remarks my very own position, in view of

    4 those propounded by the Prosecutor. If this were not

    5 such a serious trial, and if it were not the destinies

    6 of these people who were at stake, perhaps I would not

    7 give a single bit of my time to the arguments presented

    8 by the Prosecutor in his final brief; however, with all

    9 due respect, and given your patience, I am going to say

    10 that the Prosecutor's thesis, as presented in his final

    11 brief, cannot be corroborated.

    12 It is very interesting to see how he develops

    13 his thesis on the responsibility of Vladimir Santic in

    14 his final brief. Having understood, which he

    15 explicitly states in that brief, that there is no firm

    16 evidence in terms of the responsibility of the accused,

    17 the Prosecutor presents the following arguments:

    18 First of all, he says that the members of the

    19 1st Company of the 4th Battalion of the military

    20 police, including the anti-terrorist platoon of the

    21 Jokers, took part in the persecution campaign in Ahmici

    22 and the surrounding area on the 16th of April, 1993, in

    23 keeping with their orders.

    24 Furthermore, on the 16th of April, 1993,

    25 Vlado Santic was commander of the 1st Company of the

  90. 14th Battalion, including this platoon. Then he claims

    2 that Vlado Santic exercised command and control over

    3 military police units; he bills his authority by

    4 claiming that he exercised discipline; he evoked

    5 statements of witnesses who saw Vlado Santic on the

    6 24th and 26th of April, 1993, not far away from Ahmici;

    7 he also invokes 16 witness statements and documents so

    8 that he could, in his own words, prove the fact that

    9 there was a campaign of persecution, and he concludes

    10 the following: Vlado Santic ordered his subordinates

    11 to carry out persecution. The command was issued to

    12 members of the military police, or, alternatively, he

    13 says he confirmed and passed on the order to his

    14 subordinates.

    15 Further, he says that the crime was

    16 perpetrated by persons different from the accused in

    17 carrying out an order that he forwarded to his

    18 subordinates. That is what the Prosecutor claims.

    19 What, however, does indisputable evidence

    20 show? Vlado Santic was not the commander of the 1st

    21 Company of the military police on the 16th of April,

    22 1993; not a single piece of evidence corroborates

    23 this. I will not discuss assumptions.

    24 The last legal document signed by Vlado

    25 Santic was on the 18th of March, 1993, but this

  91. 1document, however, does not actually identify Vlado

    2 Santic's signature.

    3 Vlado Santic is said to have been the

    4 commander of the Jokers, within the 1st Company of the

    5 4th Battalion; however, the document of the 18th of

    6 March, 1993 leads to the conclusion that this platoon,

    7 if it was a part of this company at all, that the

    8 Jokers were put under the command of the commander of

    9 the 2nd Company of the 4th Battalion.

    10 The Prosecutor claims that the

    11 resubordination was only on that day but that is not

    12 visible from the document, and witness Dzambasovic, to

    13 whom I will refer again, when shown this document, said

    14 the following: He said this was not evidence from this

    15 document, and it is not evident from the document.

    16 Furthermore, not a single one of the 16

    17 witnesses mentioned by the Prosecutor, who were

    18 supposed to corroborate the presence of the military

    19 police, or rather the 1st Company, in Ahmici on the

    20 16th of April, 1993 said either that they saw Vlado

    21 Santic or that the people there were actually members

    22 of the 1st Company of the military police. They had

    23 military police uniforms and insignia, but not a single

    24 witness said that they were members of this company.

    25 Exhibit D16 shows who the leader of the

  92. 1military police in Ahmici was, but Santic is not

    2 mentioned there.

    3 Furthermore, the Prosecutor refers to

    4 orders. There is no order, no order was presented

    5 before this Court, issued by the commander of the 4th

    6 Battalion to his subordinates. It has not been

    7 confirmed that such an order was issued orally. There

    8 is no proof, and there cannot be proof because there

    9 was no order forwarded by the commander of the 1st

    10 Company to his subordinates. There is no proof to show

    11 that at an inferior level, there were either written or

    12 oral orders issued. There is no proof that Vlado

    13 Santic knew about any order at all.

    14 I would like to remind you that three orders

    15 were presented before this Court by Witness CE. The

    16 witness, during his testimony, confirmed that these

    17 orders were issued by him, and these are Exhibits D36,

    18 D37, and D38/2. None of these orders refer directly to

    19 Vlado Santic as the commander of the 1st Company, as

    20 the Prosecutor assumes, nor is there any proof that

    21 Vlado knew about them. These were orders issued on the

    22 15th at 10.00, at 15.00, and at 13.30 on the 16th.

    23 The Defence maintains that Vlado Santic was

    24 not aware of these orders, just as it maintains that

    25 there is no proof of the existence of any other

  93. 1orders. However, let us consider the situation as it

    2 would have been had Vlado Santic known about the

    3 orders. He could only have known about the orders I

    4 have just mentioned.

    5 Bearing in mind these orders, we should

    6 consider their nature. Contrary to the Prosecutor's

    7 view that these are orders ordering an attack, a

    8 Prosecution witness, and the Defence is grateful to the

    9 Prosecution for this witness, says that these are

    10 orders issued for defence purposes. This witness

    11 carefully considered each of these orders in turn

    12 before this Court and concluded that they were orders

    13 for defence.

    14 The Defence counsel, therefore, wonders why

    15 the Prosecutor concluded that they were orders ordering

    16 an attack. Even without expert military knowledge, the

    17 titles of these orders would lead us to such a

    18 conclusion because we can see that the units to which

    19 the orders refer are to prevent attacks by Bosnian

    20 Muslims, to prevent incursions by terrorist groups, to

    21 secure the command post, and specific tasks are given

    22 to the military police.

    23 Now, what would Vlado Santic's duty have been

    24 had he known about these orders? Expert witness

    25 Dzambasovic says that command and subordination are the

  94. 1basic principles of military organisation and that in

    2 strict military discipline, everyone has to submit to

    3 this. There is a certain degree of independence at

    4 every level, but if an order is issued, for example, an

    5 order for defence or for attack, then there can be no

    6 deviation from this and the order must be carried out

    7 in full.

    8 Had Vlado Santic, therefore, received such an

    9 order, and the duty of the military police was to

    10 secure the command post, he would have had to respect

    11 military discipline and carry out the orders he was

    12 given, according to the chain of command.

    13 I wonder how, then, did the Prosecutor

    14 conclude, in spite of the opinion of the expert witness

    15 to which I'm referring, that Vlado Santic was on the

    16 ground? Where did he reach the conclusion that there

    17 were other orders in Ahmici, that he took his unit, as

    18 the Prosecutor expressly states there?

    19 I have to remind Your Honours of Prosecution

    20 Exhibit P390 and ask you to consider carefully to what

    21 extent the Prosecutor respected your decision when

    22 making use of this exhibit.

    23 JUDGE CASSESE: Counsel Pavkovic, I apologise

    24 for interrupting you. May I just ask you a question.

    25 With regard to what you just stated concerning the

  95. 1orders allegedly received by Mr. Santic, are you

    2 raising the defence of superior orders.

    3 MR. PAVKOVIC: [No interpretation]

    4 JUDGE CASSESE: I asked you, with regard to

    5 what you said before concerning the orders allegedly

    6 received by Mr. Santic, I was wondering whether you are

    7 now raising the defence of superior orders, whereby

    8 somebody who is executing orders received from a higher

    9 authority would be excused for any -- relieved of any

    10 responsibility for any possible crimes he may have

    11 committed.

    12 MR. PAVKOVIC: Mr. President, no, that is not

    13 what I'm saying. I am simply analysing the orders

    14 which were presented before this Court and about which

    15 witness Dzambasovic testified. Because if Mr. Santic

    16 was obliged to carry out these orders, because no other

    17 orders have been presented, then his duty would have

    18 been to guard the command post. I am not saying that

    19 he would be exempt from any kind of responsibility in

    20 carrying out these orders; I am simply referring to the

    21 four orders, about which witness Dzambasovic said were

    22 aimed at defence.

    23 I am saying that Vlado Santic did not know

    24 about these orders, but if the Prosecutor is referring

    25 to these commands, I had to say that, according to

  96. 1these orders, Vlado Santic's place was at the hotel and

    2 not in Ahmici, as the Prosecutor says. I am now

    3 referring to Exhibit P390 because it is in this

    4 material that the Prosecutor uses these allegations. I

    5 do not know if we understand each other now.

    6 JUDGE CASSESE: Yes. Thank you.

    7 MR. PAVKOVIC: The Prosecutor himself

    8 realises, as he says in his concluding brief, that

    9 there is no direct proof of the issuing of orders, and

    10 goes on to say that if the Trial Chamber considers that

    11 the Prosecutor has not proved command or responsibility

    12 for the perpetration of the crime in Ahmici, Vlado

    13 Santic can still be held responsible for aiding and

    14 abetting the crime of persecution.

    15 I think that we should briefly consider and

    16 evaluate this thesis put forward by the Prosecution.

    17 As I have quoted, the Prosecutor admits that

    18 there is no conclusive evidence that orders were

    19 issued, but wishing to show that there is

    20 responsibility, he sees the responsibility in the

    21 defendant's omission to oppose an obviously illegal

    22 order. This is illogical. First he would admit that

    23 there is no order that can be proved and then you say

    24 that he did not oppose an illegal order. I wonder what

    25 order is being referred to then.

  97. 1The Prosecutor says, referring to Santic,

    2 that he was completely inactive when his inferiors were

    3 ordered to commit acts of persecution against the

    4 Muslim population. So his inactivity on the one hand

    5 and his position on the other, constitute an essential

    6 contribution to the commission of the crime.

    7 The Prosecutor goes on to say that Vlado

    8 Santic, since there is no direct evidence that an order

    9 was issued, still aided and abetted persecution ex post

    10 facto. He explains this by saying that Vlado Santic

    11 was present in the place where his unit was posted

    12 before the attack of the 16th of April, 1993, in the

    13 vicinity of the village where the crime occurred, and

    14 his failure to punish his subordinates. And according

    15 to the Prosecutor, this is a form of moral support and

    16 encouragement which contributed essentially to the

    17 crime.

    18 As I have said in my introduction, it seems

    19 to me that responsibility viewed in this way, saying

    20 that Santic is responsible because he failed to punish

    21 his subordinates, in my view would fall under Article 3

    22 or, rather, paragraph 3 of Article 7, which cannot be

    23 upheld.

    24 Secondly, the Prosecutor claims that he

    25 helped ex post facto. However, responsibility for

  98. 1aiding and abetting after the commission of a crime

    2 makes sense if a promise was made before the

    3 perpetrators, led by the promise that they would be

    4 concealed or their act would be concealed or their

    5 means, were, therefore, encouraged to persist in

    6 committing the crime. However, the way the Prosecutor

    7 puts this cannot be maintained.

    8 Secondly, encouraging, instigating. Someone

    9 can be instigated or encouraged before and during the

    10 commission of an act, but the Prosecutor says that

    11 afterwards, on the 26th of April, he encouraged someone

    12 and instigated the commission of a crime by his

    13 presence. He could not have encouraged someone to do

    14 something that was already done.

    15 Since time is running out and Your Honours

    16 must already be tired, I will go very briefly through

    17 the other two topics I wish to discuss. The first of

    18 these is the topic of alibi, and the second is I have

    19 to respond to Counts 16 to 19 of the indictment.

    20 The Defence has presented evidence showing

    21 that Vlado Santic was in the Vitez Hotel on the 16th of

    22 April, 1993, from 5.00 in the morning and throughout

    23 the day until after 20.00. Therefore, it is not

    24 possible that he participated in the murders in Ahmici

    25 at that time, as the Prosecutor alleges.

  99. 1The presence of the defendant in another

    2 place different from the place of the alleged crime is

    3 corroborated by at least two witnesses. Defence

    4 witness Biletic, who was at the main entrance to the

    5 Vitez Hotel on that morning, says that on that morning

    6 Vlado Santic arrived in the hotel early, at about

    7 5.00 a.m. The witness was at the entrance. They did

    8 not talk much, they just said, "Hello," and Vlado

    9 Santic came to his work. According to the witness, he

    10 often came to work as early as that.

    11 Not long after that, sometime before or after

    12 6.00, according to this witness, powerful explosions

    13 were heard and there was panic. Everyone who was in

    14 the hotel ran into the lobby, and he heard the voice of

    15 Vlado Santic.

    16 Witness Franjic also says that at a quarter

    17 past 6.00 or until half past 6.00 on that day, he saw

    18 Vlado Santic at the entrance to the hotel. The

    19 testimonies of these two witnesses corroborate each

    20 other. Biletic heard him, Franjic saw him, talked to

    21 him. They were acquaintances from before. Franjic was

    22 the managing director of the hotel.

    23 It is not contested by the Prosecutor, it

    24 seems, that Vlado Santic was at the hotel at that

    25 time. The Prosecutor accepts Franjic's testimony and

  100. 1allows that Vlado Santic was in the hotel at that time,

    2 but the Prosecutor goes on to say this does not bring

    3 into question the thesis that he was in Ahmici probably

    4 before that time.

    5 Although I do believe witness Franjic, for

    6 him witness Biletic is an unreliable witness, but he

    7 does accept that both witness Biletic and Franjic were

    8 in the hotel. He objects to Biletic saying that he was

    9 highly selective in remembering, that he did not

    10 remember many people and many events and that he was

    11 too much focused on Vlado Santic. But he seems to

    12 forget in so doing that it was this same witness,

    13 Biletic, only a month prior to his appearance here at

    14 the Court, that the Chamber's investigator talked to

    15 him. The Defence was also present but did not

    16 participate or interfere with the conversation. It was

    17 precisely the Prosecutor that delineated the area of

    18 questioning of the witness and focused him on Vlado

    19 Santic and practically directed him to the topics that

    20 we're now discussing.

    21 Likewise, the Prosecutor also had occasion to

    22 talk with the other Defence witness, Franjic, and when

    23 one compares the statements of these two witnesses

    24 given to the investigator or the Prosecutor here in his

    25 presence, they coincide; namely, are the same, to the

  101. 1effect that Vlado Santic was in the hotel at the

    2 relevant time, and I do not see what else can be done

    3 but take those statements into due account. Biletic

    4 was tired, okay, but he does say that he remembers the

    5 book that he was reading that evening.

    6 I should like to say that the Prosecutor's

    7 interpretation of the statements of the witness Biletic

    8 is what is highly selective, because he does

    9 acknowledge to Biletic that he did see Santic after

    10 20.00 in the evening in the Bungalow, but not because

    11 Biletic confirmed that but only because this is not

    12 contained in Exhibit 250.

    13 Biletic said that everybody from the security

    14 section of the military police, having received orders

    15 after 8.00 p.m., they had all left the hotel by that

    16 time.

    17 Perhaps a small comment is in order on the

    18 following topic: The Prosecutor does admit that

    19 between 6.15 and 6.30 -- relying on Franjic's

    20 statement -- Santic was indeed at the hotel but could

    21 have been in Ahmici before that, before the hours in

    22 question, and could have committed the crime ascribed

    23 to him. Not even under these peaceful conditions in

    24 peacetime can such -- could such actions be exactly

    25 possible.

  102. 1So we have Santic, at 5.30, under the

    2 circumstances as they were, and as conceived by the

    3 Prosecutor, he was in Ahmici at that particular time,

    4 then at 6.15 he was in Vitez because this is exactly

    5 where the witnesses place him. Then he was, after

    6 that, in Ahmici leading a unit.

    7 I do not find this story convincing. The

    8 logic of things is quite different. Vlado came to the

    9 hotel that morning. He was seen by Biletic. And

    10 throughout that day I do have to say that Biletic did

    11 not hold Vlado by the hand. He saw him occasionally,

    12 he heard him occasionally, but Vlado could not have

    13 left the hotel without being seen by Biletic. That is

    14 for certain. Biletic was on the main entrance -- at

    15 the main entrance and he saw all the people coming and

    16 going, and there were few of them, because it was time

    17 of war. There was shelling, there were detonations all

    18 around. So this could have happened only in this kind

    19 of story.

    20 Defence counsel Susak has already spoken

    21 about the charges with which his defendant and Vlado

    22 Santic are charged under Counts 16 to 19. The only

    23 witness, Your Honours, who confirms that Vlado Santic

    24 was in Ahmici on the 16th is Witness EE. She says that

    25 Vlado Santic was in front of her door, and then she

  103. 1claims together with the others he committed a crime.

    2 Let us recall just briefly her statement here

    3 in Court on the 8th of October, 1998:

    4 "When my husband opened the door and as we

    5 looked to the terrace, we could see soldiers, Vlado

    6 Santic, Zeljko Livancic, Drago Josipovic, Marinko

    7 Katava, and Karlo Cerkez. Zeljko and Vlado took my

    8 husband and took him outside behind the shed."

    9 In analysing the statement of this particular

    10 witness, I should like first of all to consider what is

    11 being claimed by this witness.

    12 First of all, I have to say in advance that

    13 the Defence firmly believes that this witness is not

    14 telling the truth. No one is contesting the fact that

    15 her husband was indeed killed on the 16th of April,

    16 1993, but we are challenging the fact that the

    17 Witness EE was an eyewitness to the event.

    18 It is common knowledge, Your Honours, that

    19 after events which are deeply imprinted on our minds,

    20 we have them etched in our memories for our lifetimes,

    21 and we do not need any expert opinions -- the expert

    22 opinion of expert Wagenaar to convince of us that,

    23 because we are all perfectly aware that that is so.

    24 The murder of a close person, of a dear person, of a

    25 husband, of a relative, indubitably leaves a deep

  104. 1imprint on our minds, and if this is done by a person

    2 whom we know well, can we at all doubt what our eyes

    3 tell us.

    4 The witness is claiming that she actually saw

    5 Marinko Katava standing in front of her door. Maybe

    6 she confused Marinko Katava with some other person; she

    7 was in a state of fear and that is quite possible.

    8 However, she also says that she knows Marinko Katava

    9 very well, and she claimed to this Chamber that she was

    10 100 per cent sure that it was Marinko Katava that had

    11 been in front of her door that morning.

    12 Well, what happened then? Where is this

    13 Marinko Katava? Briefly, Marinko Katava appeared

    14 before this Court and he said that he had been at the

    15 entrance to his building in Vitez. Marinko Katava,

    16 we've already said, was charged precisely on the basis

    17 of the statement of this particular witness, but when

    18 Witness CD appeared and stated, in another case, that

    19 Marinko Katava was in Vitez, that was when the

    20 Prosecutor withdrew the indictment.

    21 So Witness CD, in addition to Marinko Katava,

    22 as well as Witness JJ, also asserts that on that

    23 morning Marinko Katava was in Vitez. Both Witnesses CD

    24 and JJ are members of the Muslim ethnic community. It

    25 was very hard for us to reach them; the Defence had no

  105. 1access to them and was not at all able to establish

    2 contact with them to talk to them.

    3 Witness CD is a witness of the Court; he is

    4 the one who is confirming that Marinko Katava was in

    5 Vitez at the relevant time. This witness also claimed

    6 that on that day, on that morning, Stipo Alilovic was

    7 also standing in front of her door. These stories

    8 about Stipo Alilovic you only know too well, all of

    9 them, Your Honours, but let me remind you anyhow at

    10 this point that in regard to Stipo Alilovic, his wife

    11 stated here before the Court, and this is not contested

    12 by the Prosecutor, that he left Bosnia in 1992 and came

    13 here to the Netherlands. He was a sick man; he died in

    14 1995. He never left Holland until his death. He could

    15 not have been in Ahmici.

    16 As the Prosecutor says, this was not

    17 challenged by the Defence. His wife said that after a

    18 lot of hardship in refugees camps, when they came here,

    19 they handed over all their documents and personal

    20 identification papers, so they were unable to move

    21 round, move at all. In fact, they were unable to

    22 travel in the Netherlands in order to satisfy their

    23 personal needs.

    24 She gave us a document, C-11, from which it

    25 is evident that they had this post office certificate

  106. 1which enabled them to take out the money that they were

    2 receiving as refugees. They did not have the kind of

    3 money that would enable Stipo Alilovic to travel to

    4 Ahmici and commit a crime there. They did not have any

    5 documents with which to travel.

    6 In 1993, we still had a different kind of

    7 Europe, a closed-borders Europe, much more than today.

    8 It was next to impossible to obtain passports -- I

    9 mean, travelling visas.

    10 His wife does assert that her husband, Stipo

    11 Alilovic, in fact, left Bosnia because he was opposed

    12 to the war. Why then would he return to Bosnia to take

    13 part in the war and then go back to Holland? Even if

    14 we say that this is his wife and that she has a

    15 particular reason for telling that story, we still have

    16 citizens here who have said this. We have the witness

    17 Hume and the witness Groenwald; they were neighbours of

    18 Stipo Alilovic.

    19 Let me just remind you of a detail from her

    20 statement. She says, "On the 16th of April, 1993,

    21 Stipo Alilovic could not have been in Ahmici. There's

    22 no way he could have been in Ahmici because he was in

    23 Holland. And I remember that particular date very well

    24 because it was the day when I got a job," and this is

    25 one of the witnesses. She presented some documents to

  107. 1us here from which it is clearly obvious that on the

    2 16th of April, 1993 she got employment in Amsterdam as

    3 a teacher, and she said how happy she had been on that

    4 day. She says, "Stipo was my friend. And this is why

    5 I remember this, because it was the first day on the

    6 job for me." Who doesn't remember his first day at

    7 work?

    8 Witness EE also asserted that Zeljo Livancic

    9 had been in front of her door, that together with the

    10 others he took away her husband and killed him. The

    11 witnesses have testified before this Court to confirm

    12 that Zeljo Livancic was not in front of the threshold

    13 of this witness on the 16th of April, 1993 but rather

    14 was on a hill in the vicinity, Kuber Hill, a few

    15 kilometres away. (redacted), DH, Ivo Pranjkovic, and

    16 Andjelko Vidovic, these witnesses confirmed that as

    17 early as the 13th, Zeljo Livancic, Pranjkovic, Vidovic,

    18 they had all left for Kuber, where they stayed until

    19 the conflict on the 16th broke out.

    20 They claim, and this is for you to assess and

    21 evaluate, that Zeljo could not have left the position,

    22 first of all, because he had certain commanding duties,

    23 he could not have left these unit and gone to another

    24 place.

    25 In conclusion, I could say the following:

  108. 1When this witness, EE, claims that Katava, Stipo

    2 Alilovic, and Zeljo Livancic were in front of the door

    3 of her house, the statements of these witnesses, to

    4 which I have pointed out, say that this is simply

    5 impossible, can we then believe her? Can we believe

    6 her when she says that Vlado Santic was also among the

    7 group?

    8 The witness has given numerous statements, at

    9 least five statements, prior to her appearance here in

    10 this Tribunal. In the concluding brief, all the

    11 statements have been expounded in detail and reasoned

    12 in detail, and I should like to point your attention to

    13 the many coincidences in them and inconsistencies in

    14 them, as to the major details which are inconsistent,

    15 because I do allow that some minor details can be

    16 confused by persons under such circumstances, but the

    17 big ones, the major details, certainly would stick in

    18 one's mind, there's no doubt about that.

    19 To conclude, I wish to draw your attention to

    20 a couple of other points in order to prove that this

    21 witness is not saying the truth.

    22 The witness claims that throughout the day,

    23 on the 16th of April, 1993, after her husband had been

    24 taken away and killed, that she spent the whole day in

    25 a shed. I have to stress this. So she spent this

  109. 1whole day in a shed. This is confirmed by the

    2 witnesses Livancic, Pranjkovic -- no, sorry, Livancic,

    3 and I believe that to be an indisputable fact.

    4 So the whole day was spent by this witness in

    5 the shed, without ever going out, without going out to

    6 look behind the shed to see where her husband had been

    7 taken and killed. Okay, we can say she was fearing for

    8 her own life and she was with her children, with her

    9 mother, and that is why she didn't go behind the shed

    10 to see whether her husband was only wounded and perhaps

    11 needed help. We could perhaps justify that by her

    12 fear, the fact that she didn't go out to see.

    13 But she asserts, however, that she went out

    14 in front of the shed at least twice in order to put out

    15 the fire in her house and, indeed, to change her

    16 clothes. So now I'm asking myself the question, she

    17 goes out to extinguish a fire and does not go to see

    18 how her husband is. It is quite clear why she didn't

    19 go behind the shed because she didn't see -- that is my

    20 thesis -- she didn't at all see her husband being taken

    21 away or heard him being shot. She said her husband was

    22 taken and that they fired a burst, and this rifle that

    23 she claimed they had, an M-48, cannot fire bursts.

    24 To conclude, a detail, at dusk, night was

    25 falling, Drago Josipovic came, together with Witness DH

  110. 1and with Papic, and they called the witness to come out

    2 of the shed and place herself in the house of Papic.

    3 She didn't want to go, like she didn't want to go

    4 before when Livancic had called her. She asked them,

    5 "Who is with you?" According to the testimony,

    6 Livancic said, "Drago Josipovic is here," and then the

    7 witness came out.

    8 Now, apart from that, Livancic also said that

    9 he had the impression that she believed, that she

    10 trusted Drago Josipovic, that she felt secure when he

    11 was around and that's why she came out. So I wonder,

    12 had Drago Josipovic actually participated in this

    13 crime, as she claims, how then could she have trusted

    14 him that much to come out at the precise moment when

    15 she learned that he was among the group outside and was

    16 then taken or went to the house of Papic.

    17 To conclude, that is, just in the time I

    18 have, what remains as a question, Your Honours, what is

    19 the question, after everything we've heard, the

    20 question of motive? What is the motive for this

    21 witness? By what motive was the Witness EE guided to

    22 give her testimony in the way she did before this

    23 Chamber and thus seek to incriminate all these

    24 defendants?

    25 I wonder, was it really a wish for the truth

  111. 1to be established, as the Prosecutor contends, or was

    2 it perhaps that the witness was guided by basic

    3 instincts and passions of hatred and revenge? Was it

    4 not that that was the generator of her testimony?

    5 Witness AA suffered immensely. Her husband

    6 was killed, her kin were killed, her property was

    7 ruined; if we only recall what love she spoke about her

    8 house, and she often said, "my house," it is evident

    9 and it is only understandable that she should have been

    10 devastated by those events.

    11 I'm quite certain, and I'm not speculating

    12 when I say, however, that it was not the truth, the

    13 establishing of the truth, which induced her to come

    14 and give testimony in this court. Her suffering, we

    15 can of course understand her suffering, but her motive,

    16 which we can also understand but cannot justify, is

    17 vengeance, revenge. We have had many persons here who

    18 have testified. The persons in question that they saw

    19 had a clean face, she says that they had a clean face,

    20 and many lay persons refer to those persons as having

    21 painted faces, but one has to be sure, because this

    22 serves for recognition purposes.

    23 This also corresponds to what Counsel

    24 Puliselic has said here, that we cannot remember better

    25 certain events from our past as more time elapses than

  112. 1we can remember them immediately after the event, and

    2 this is exactly what has been happening with this

    3 witness.

    4 So, Your Honours, let us not allow hatred and

    5 revenge to prevail. It is for you that the truth

    6 should reign.

    7 I, therefore, propose that Vlado Santic be

    8 acquitted of all charges. Thank you.

    9 JUDGE CASSESE: Thank you, Counsel Pavkovic.

    10 MR. PAVKOVIC: I apologise. Mr. President,

    11 on behalf of my colleagues, I should like to ask you

    12 the following: I should like to convey my own wish, as

    13 well as theirs, with due respect to your time and

    14 everything else considered, to pass your judgement as

    15 soon as possible, please. That would be it, in a

    16 word.

    17 JUDGE CASSESE: Yes. Actually, we expect to

    18 be able to deliver our judgement and sentence, if any,

    19 in mid January, and of course we shall duly advise you,

    20 at least, say, a couple of weeks before, of the day

    21 when we are going to deliver our judgement. This is

    22 our hope, and we will work very hard, but, as I say, we

    23 need a minimum of two months.

    24 Now, both parties have completed their

    25 presentation of the case. Before I formally close the

  113. 1hearing, I would like, on behalf of the Trial Chamber,

    2 to say to both parties how much we have appreciated the

    3 highly professional and cooperative attitude of all

    4 Defence counsel, as well as the Prosecutor, throughout

    5 the trial proceedings. We are very appreciative of

    6 your behaviour and your attitude.

    7 Pursuant to Rule 87(A), I declare the hearing

    8 closed. The hearing is closed.

    9 --- Whereupon the hearing adjourned at

    10 2.05 p.m. sine die.