1 Thursday, 19 July 2001
2 [Prcac Defence Closing Statement]
3 [Open session]
4 --- Upon commencing at 9.23 a.m.
5 [The accused entered court]
6 JUDGE RODRIGUES: [Interpretation] Good morning, please be seated.
7 Good morning ladies and gentlemen. Good morning to the technical booth,
8 the interpreters, the registry staff, the counsel for the Prosecution and
9 the counsel for the Defence.
10 We shall continue our hearing today with the closing arguments for
11 the accused Mr. Prcac, and so I give the floor to Mr. Jovan Simic.
12 MR. J. SIMIC: [Interpretation] Thank you and good morning, Your
14 Your Honours, the Defence for the accused Dragoljub Prcac would
15 first of all like to express its gratitude to this Honorable Trial Chamber
16 for their understanding and permission for this case and the closing
17 arguments to be presented last though, according to the indictment, we
18 should have come immediately after the Kvocka case. The reasons for this
19 are well-known: we joined the case and the proceedings later and I thank
20 Your Honours for this decision.
21 The Defence would have liked to thank the Prosecution for fair,
22 correct cooperation and good faith. However, unfortunately, having read
23 the final brief and the closing arguments of Ms. Somers, we feel that that
24 would be hypocritical. This Defence counsel acted in sincerity and good
25 faith, and we feel there is no reason to express gratitude when we feel
1 that that would not be opportune nor proper.
2 The Defence considers this Tribunal and this Trial Chamber as the
3 highest level institution in the system of criminal justice. As has been
4 pointed out a number of times in these proceedings, we thought that all of
5 us were struggling for the truth, that we aspired for the truth, and that
6 that was the common goal of all of us. We thought that in this highest
7 and loftiest court, criminal court on this planet, we had to act in good
8 faith and we had no right to use untruths or half-truths. Many
9 legislations allow for the possibility for the accused not to speak the
10 truth in court or not to testify. In many systems, it is allowed for the
11 witness to give his interpretation of an event or to refuse to testify
12 about an event. However, there is not a single jurisdiction that
13 envisages the possibility for the parties in the proceedings, that is, the
14 Prosecution and the Defence, to use half-truths and untruths.
15 If the testimony of a witness is taken out of context then, Your
16 Honours, we arrive at a half-truth and a half-truth is worse than an
17 untruth. There was never any way of establishing the truth through
18 untruth. So this Defence claims that as far as its final brief is
19 concerned, at least, and the evidence we have presented, that we did not
20 draw testimony out of context, that our quotations are accurate, that the
21 facts we mention are accurate, and the conclusions we make and the
22 inferences we draw are subject to the judgement of the Trial Chamber.
23 In the first part of my closing argument, I will focus on the
24 half-truth and untruth which the Prosecution has presented in its final
25 brief and closing arguments. In the Prosecution in its final brief and
1 closing argument in point 435 said that the accused was a retired crime
2 technician, that he was mobilised as a reserve policeman, and assigned to
3 the Omarska police station.
4 In her oral arguments, the Prosecutor claimed that the accused
5 Dragoljub Prcac at the time of the outbreak of the war in Prijedor
6 municipality voluntarily joined and was beyond the age for mobilisation.
7 The Prosecutor claims that Dragoljub Prcac was not subject to mobilisation
8 and that he willingly joined the reserve police force for motives that are
9 later explained by the Prosecution.
10 In this way, the Prosecutor is attempting to give the impression
11 that the accused was fully conscious of the common purpose and that he
12 voluntarily, willingly joined in the persecution of non-Serbs in Prijedor
13 municipality. Such an allegation, Your Honours, is untrue. At the time
14 the war broke out, the accused was 52 years old and was a military
16 The Defence has presented evidence including a photocopy of the
17 military booklet which shows clearly that at the end of the war in
18 Bosnia-Herzegovina in 1995, he was still treated a military conscript.
19 This allegation is corroborated by Exhibits D5/18A and B, D5/20 A and B,
20 D5/29A and B. This was also stated by the accused in his interview with
21 the Office of the Prosecutor, and this was stated by his son who testified
22 here, that is, Ljubisa Prcac.
23 The Defence submits that the real truth is that the accused, like
24 many others in those parts, was mobilised by force of law and that he
25 carried out his civil duty, and that failure to respond to the
1 mobilisation call would have constituted a criminal offence, which, as we
2 all well know here, in the situation that prevailed where the war was
3 ongoing, was drastically sanctioned. The Kvocka Defence has provided
4 exhibits to support this submission.
5 In point 434 of the closing brief, the Prosecution claims, and
6 allow me to quote, "Prcac himself admitted that Meakic told him that he
7 would replace Kvocka." This is another untruth. The accused never made
8 any such statement. Your Honour, this is not even a misinterpretation.
9 This is simply incorrect, an ill-intentioned presentation of a statement
10 given by the accused to the Prosecution on the 28th of April, 2000.
11 I should like to underline that the accused agreed to be
12 interviewed three days prior to the beginning of trial and 40 days after
13 his arrest. The accused tried, in every possible way, to be cooperative
14 and to provide information and he did provide information. We have no
15 right to completely distort a statement that is in the record.
16 What did the accused actually say? In answer to a question of the
17 investigator, Tariq Malik, whether he knew whether he replaced anyone, the
18 accused Prcac said, "Yes, I heard." "What did you hear?" "I heard that I
19 had come instead of Kvocka." "Who did you hear that from?" Answer: "From
20 Meakic." And Mr. Taliq Malik stops there.
21 We wanted to clarify this fact and to establish exactly when this
22 conversation was conducted - and our information is that it was conducted
23 long after the closing of the Omarska Investigations Centre - but we were
24 unable, because you know the condition of Mr. Prcac, and his health
25 prevented us from clarifying this point.
1 There is no evidence that the accused Prcac, from a conversation
2 with Meakic, came to learn that he had -- or, in fact, that he had been
3 informed in advance that he would replace Meakic. The whole sentence is
4 placed in the future, and from that it emerges that he knew that he would
5 replace Kvocka.
6 This kind of interpretation by the Prosecution has not
7 been made by chance, at least in the opinion of the Defence. The
8 Prosecution does not have any evidence at all to prove that Mr. Prcac
9 replaced Miroslav Kvocka. Statements by the accused of this kind would,
10 in the opinion of the Defence, solve the Prosecution's problem.
11 In the pre-trial brief and during the proceedings, the Defence
12 claimed that the accused came to the investigations centre; that he didn't
13 replace Miroslav Kvocka at a position, a position described by the
14 Prosecution as deputy camp commander; and that he came in as a
15 reinforcement. In the same paragraph, 434, of the closing brief of the
16 Prosecution, the Prosecutor alleges that sufficient evidence has been
17 provided to establish the earlier arrival of the accused Dragoljub Prcac
18 to the Omarska Investigations Centre.
19 As you know, the Defence has claimed from the beginning that
20 Mr. Prcac came to the Omarska Centre on the 15th of July - that is what
21 the Defence has claimed, and we hope that we have proven it beyond any
22 reasonable doubt - but this date does not suit the Prosecution.
23 Also, the Prosecution refers us to certain witness statements.
24 Zlata Cikota is apparently one of the witnesses on the basis of which one
25 can establish that the accused reached the investigations centre early.
1 Zlata Cikota, in the submission of the Prosecution or as alleged by the
2 Prosecution, said that Dragoljub Prcac was present in the Omarska
3 Investigations Centre on the 25th of June, 1992. Unfortunately, this
4 witness, Zlata Cikota, never said this, she never mentioned this date.
5 She never even gave us the possibility to infer such a conclusion. This
6 date does not exist in the transcript. That is the wish and the
7 assumption of the Prosecution which is not founded on any fact.
8 The accused did say in his interview with the Prosecution that, on
9 a number of occasions, he had carried food, medicines and clothing to
10 people he knew and others he did not know; to his friends, to his
11 neighbour Zuhra Mehmedagic; at first to Sead Cikota as well, whom he
12 didn't even know.
13 The Defence submits that Dragoljub Prcac cannot be liable for the
14 events in the Omarska Investigations Centre on the grounds of having
15 visited there, carrying necessities and assisting detainees, when he had
16 no position nor was he assigned to work in the investigations centre.
17 Another witness that the Prosecution relies on is Azedin
18 Oklopcic. The Prosecution, in their final brief, allege that the witness
19 Azedin Oklopcic stated that Prcac replaced Kvocka around the 30th of June,
20 1992. Such a statement by witness Azedin Oklopcic, Your Honour, cannot be
21 found in the transcript.
22 On page 1758 of the transcript, the prosecutor Keegan asked the
23 witness Oklopcic the following: "Do you remember how long he was in the
24 camp," referring to Kvocka, and the witness replies, "About a month. I'm
25 not sure." Then the Prosecutor goes on to ask, "Do you know Dragoljub
1 Prcac?" and the witness answers, "Not personally. Only by sight." The
2 third question of the Prosecutor: "During your stay in the camp, did you
3 see Dragoljub Prcac?" The witness answers, "Yes. He took over Kvocka's
5 From this testimony, the Prosecution drew the conclusion that if
6 Kvocka had been there for a month and Prcac came instead of Kvocka,
7 everything happened on the same day, he simply replaced him; that the
8 accused Dragoljub Prcac replaced Kvocka on the 30th of June.
9 Witness Emir Beganovic, as claimed by the Prosecution, stated that
10 he saw Kvocka at the beginning of July, that he would see him until
11 mid-July, until Prcac replaced him. This statement by Witness Emir
12 Beganovic is also not to be found in the transcript.
13 In fact, Emir Beganovic testified here - and he was the first
14 witness of the Prosecution - and he stated, and the Defence refers to this
15 statement repeatedly in their final brief, that he has no direct knowledge
16 about the accused Dragoljub Prcac. He did not make any statements as to
17 when he came. He said he had heard from others that he was deputy camp
19 In answer to a question from the Defence, how many times he had
20 seen him, he said, "Only twice." He never mentioned a single date. Not
21 in a single statement of this witness can we find that the accused
22 Dragoljub Prcac came at the beginning of July to the Omarska
23 Investigations Centre to work there. All this can be found on transcript
24 page 1435.
25 The last witness called by the Prosecution and referred to support
1 its allegation that Dragoljub Prcac came to the Omarska Investigation
2 Centre before the 15th of July is Nusret Sivac. The Prosecution relies on
3 a statement of Nusret Sivac who testified that he had noticed, on a number
4 of occasions, he had noticed the accused in the glass semi-circular area
5 of the administration building during the incident which the detainees
6 described as "black Friday" when, according to witnesses of the
7 Prosecution, there was large-scale widespread beating of the detainees.
8 In chapter C.3.4 in paragraphs from 160 to 166 and in chapter
9 C.3.8, an analysis is made of the statement and credibility of witness
10 Nusret Sivac. This Defence claims that the witness does not have the
11 necessary degree of credibility, nor can this Trial Chamber trust his
12 testimony. Witness Nusret Sivac, Your Honours, stated many untruths
13 before this Trial Chamber.
14 Allow me to remind you of only some of them. The witness claimed
15 and stated here that he had seen the accused Mr. Prcac in July, in the
16 month of July, together with reporter, Slavisa Djukanovic and his camera
17 was walking around the investigation centre to film details, bodies, and
18 other propaganda material. Slavisa Djukanovic also appeared in this
19 courtroom. He said that he did not know Mr. Prcac. He stated here under
20 oath that he was in the Omarska Investigation Centre twice, and that on
21 both occasions, he went thereupon orders from his superiors as he was a
22 member of the military press centre. That both of those occasions were at
23 the beginning of the functioning of the Omarska Centre. That on both
24 occasions, he went to Room B1, and allow me to remind you that was the
25 room where Jesic, Mijic, and Vitorovic, the investigators were working and
1 that he filmed some documentation there which the interrogators had
2 collected in the course of their investigations.
3 Witness Nusret Sivac claimed in his testimony that he knew
4 Mr. Dragoljub Prcac and that he knows that he had a passenger vehicle.
5 The Defence, I hope, has proven beyond any reasonable doubt that Mr. Prcac
6 never had a car of his own and we have provided material evidence to
7 corroborate this as well as witness testimony. Witness Nusret Sivac
8 stated here in this courtroom that Mr. Prcac was present when the guards
9 beat to death the detainee Rizah Hadzalic, and they describe this incident
11 The killing of Rizah Hadzalic occurred on the 12th of July, Your
12 Honours, and the Defence alleges that there is no evidence to show that
13 Mr. Dragoljub Prcac was present on that occasion and from the statement of
14 witness Nusret Sivac in reference to this event, and when asked who was
15 present when Rizah Hadzalic was beaten to death, from that answer, it is
16 possible to conclude that there wasn't a single person in the
17 investigation centre who was not present at that event.
18 Witness Nusret Sivac claimed that apart from all the guards,
19 Zeljko Meakic was present, and Dragoljub Prcac, and the women typists, and
20 all the interrogators -- let me not mention them all by name. The wish of
21 Nusret Sivac is to involve in the incident everyone he knew and all the
22 people who were present in the centre at the time. He goes further than
23 that. He tries to involve all the people he knew and the people he thinks
24 are guilty in that event.
25 Nusret Sivac, Your Honours, claimed that he was moved from the
1 garage to the pista to be closer to the water tank, or rather that he
2 moved there. In the cross-examination, he continued to claim that there
3 was a water tank on the pista. There is no such tank or reservoir, and
4 not a single witness of the Prosecution or the Defence testified that
5 there ever was such a water reservoir at the pista.
6 In any event, it is up to this Honorable Trial Chamber to judge
7 the testimony and credibility of this witness, but on the basis of the
8 testimony of these four witnesses, the Prosecution infers that Dragoljub
9 Prcac came to the Omarska Investigation Centre before the 15th of July.
10 But the Prosecution doesn't stop there. The Prosecution fixes a date and
11 says that the accused came to the investigation centre on the 11th of
12 July. How the Prosecution managed to establish this date, probably they,
13 alone, know, but the Defence understands full well why they chose this
14 date. In the first place, though the date has not been established of the
15 death of Rizah Hadzalic, it is thought to be on the 11th of July so, then,
16 it is convenient to place the accused in the investigation centre on that
18 Then the next day is the 12th of July. The Serbian religious
19 holiday St. Peter's day when, allegedly, detainees were thrown on to a
20 fire. From the 12th of July onwards, we will later chronologically review
21 those events, but it was necessary for Mr. Prcac, in the absence of any
22 evidence that any crimes were committed during his time there, to be
23 involved in events he did not attend, he was not present in, and to move
24 his arrival two or three days forward. The Prosecution needed to fix
25 Mr. Prcac's arrival on the 11th of July when Rizah Hadzalic died, though
1 the Defence claims that this happened on the 12th of July, so as to have
2 one undisputed event at which Mr. Prcac would have been present.
3 In point 435 of the closing written brief, the Prosecution says
4 that the accused admitted that he frequently carried food to the Omarska
5 camp and then immediately goes on to say that he gave orders to the guards
6 in the Omarska Investigation Centre at the time to distribute that food to
7 the prisoners. For such an allegation, there is no evidence, Your
8 Honours. No one testified to this, and this is another fabrication on the
9 part of the Prosecution.
10 The Prosecution considers to have the right to make up a situation
11 and to describe it in the public when it is being broadcast by the media.
12 The accused did make a statement for the Prosecution, and he described
13 these events to the Prosecution. He said that at the beginning, very
14 briefly, upon Meakic's orders, he would carry parcels which were brought
15 by relatives of the detainees which were marked with the names and
16 surnames of those detainees, and that he handed over those parcels to the
17 guards at the entrance.
18 He also said that on a number of occasions, he had, himself,
19 carried parcels to his own friends or that he had carried parcels which
20 his wife had prepared for Zlata and Sead Cikota. There is no question of
21 him giving orders to the guards.
22 Your Honours, the distribution of parcels lasted for a very brief
23 time. This was stated by the accused in his interview and this was
24 confirmed by witnesses. Witness Mirko Jesic confirmed here that orders
25 had come from Simo Drljaca prohibiting the distribution of parcels and
1 prohibiting the release of prisoners from the Omarska Investigation
3 The accused carried parcels four or five times whereas the
4 Prosecution would want us to believe that he carried parcels constantly,
5 and even this was not sufficient for them. They are claiming that he also
6 gave orders. This also is not by chance.
7 The Prosecution wishes to give us the impression that the accused
8 went to the Omarska Investigation Centre on a regular basis as a result
9 that he was fully familiar with the situation and developments in the
10 Omarska Investigation Centre. That from the police station department in
11 Omarska, he had the authority and could give orders to the guards and, as
12 they said quite clearly and unequivocally, that he worked in the Omarska
13 Investigation Centre and the police station department, from the police
14 station department. All this is incorrect and for which there is
15 absolutely no evidence.
16 The Prosecution goes on to allege that he's a cold-blooded
17 operator, and in support of this, reference is made to a witness
18 testimony. The accused, himself, was questioned by the Prosecution and
19 he, himself, said that the conditions were very poor. But the Prosecution
20 draws everything out of context. He said that only the working conditions
21 bothered him and no mention is made of the cross-examination when Witness
22 DD/10 said in response to a question from the Defence that he disagreed
23 with the beating and mistreatment. That he was a nice, dignified
24 honorable man. This is forgotten. This is something that should not be
1 The Prosecution also makes no mention of the interview of the
2 accused. The accused said that he disapproved of everything. That he
3 appealed to Meakic to give him chlorine, that he appealed for more water,
4 that he tried in every way to assist the detainees as far as he was able.
5 The Prosecution goes on to allege that Prcac went to the Omarska
6 Investigation Centre in order to make material gains or to make a certain
7 profit. In this connection, let me first say that the Prosecution has
8 also quite incorrectly stated that witness Zlata Cikota stated in her
9 testimony that all the assistance given to her and her husband in the
10 investigation centre by the accused Prcac was due to his wish to make
11 financial gains. There is no such statement in the transcript, Your
13 Witness Zlata Cikota testified before this Trial Chamber and said
14 that without the assistance from the accused Prcac, neither she nor her
15 husband would have survived the Omarska Investigation Centre. She
16 testified that even her children, who stayed at home, would have suffered
17 consequences had it not been for the assistance given by the Prcac
19 I should like to remind Your Honours that almost all witnesses who
20 testified here about their departure from Prijedor municipality confirmed
21 that they first had to sign certain statements transferring their property
22 in its entirety to the Republika Srpska or a Serb as a gift.
23 Perhaps the only example of someone not having done that was Zlata
24 Cikota or, rather, the accused Dragoljub Prcac, who did not wish ownership
25 to be transferred to him but a contract, on the basis of which the accused
1 was given her weekend home, a garage, and passenger vehicle. That car was
2 immediately restored to the owner when requested, and Zlata Cikota left
3 Prijedor in her own vehicle.
4 The Prosecutor also claims that the accused Dragoljub Prcac made
5 it possible for the visitors from outside of the camp to enter the camp
6 premises to mistreat and kill detainees in the Investigations Centre in
7 Omarska. As an example, Mr. Keegan, in his opening statement, mentioned
8 Mr. Zigic. Ms. Somers, in her oral, final submissions, mentioned Slavisa
9 Djukanovic. There is not a single shred of evidence, Your Honours, nor
10 did any witness testify to that effect, that is, that an individual,
11 during the time when Dragoljub Prcac was there, an individual who did not
12 work in the camp would have entered the camp and mistreated detainees. We
13 do not find such a piece of information anywhere in the transcript.
14 The Prosecutor goes further to claim that the accused decided on
15 his own to remain in the Investigations Centre in Omarska. I must say
16 that this is, unfortunately, a pure fabrication. We do not find any
17 evidence, any witness who would have testified to that effect or any
18 exhibit that would have been tendered to that effect, to support this
20 The Prosecutor bases her allegation on the fact that Witness DD/10
21 stated that he had left the camp at the very end of its existence;
22 however, that portion is not quoted in its entirety. Witness DD/10 said
23 that he had left the investigations centre, and upon a question by
24 Mr. Saxon, who conducted the cross-examination, he asked him, "How come
25 nothing happened to you?" and the witness stated that the officials were
1 behind him as it all happened and that that was probably the reason why he
2 was not harmed in any way on that occasion.
3 Mr. Prcac did not benefit from such protection. He was not in the
4 position to make any decisions as to whether or not he would work in the
5 Omarska Investigations Centre. The Prosecutor, however, did admit that
6 Mr. Prcac was in a very bad financial situation. We called evidence to
7 that effect, and we heard witnesses who claim that Mr. Prcac had, indeed,
8 been in a very difficult financial situation from the very beginning of
9 his life to the moment he was arrested. Throughout his life, he struggled
10 to feed his family. He had to struggle against poverty, and that was
11 admitted by the Prosecutor. However, that fact does not suit the
12 Prosecution case, and therefore they alleged, without any evidence, that
13 his bad financial situation was actually the reason why he went to the
14 Omarska Investigations Centre in the first place, so that he would
15 blackmail prisoners and extort money from them.
16 Their allegation is based, in its entirety, on the testimony of
17 Witness Kugic. As you remember, Your Honours, Witness Kugic was called
18 here during the rebuttal case of the Prosecution. Witness Kugic, apart
19 from his personal information, did not tell any truth before this Court.
20 Witness Kugic claimed, and he stated here, that he had never been
21 criminally prosecuted. He lied to the Chamber when he said that. The
22 Defence tendered Exhibit D5/45 to challenge that claim of his. Witness
23 Kugic then did admit, "Well, yes, it did happen but I was very young."
24 Then Judge Riad asked him whether he had often engaged in such conduct,
25 and then he said, "No, it only happened once. We were very young. We
1 would often pick fights. And I even had a fight with one of the Defence
3 Witness Kugic stated before the Chamber, and he confirmed this in
4 the statement given in Zagreb, that Abdulah Brkic, a witness who testified
5 before this Chamber and who barely survived the investigation of the
6 investigator, and that he was saved by a person from Banja Luka because
7 the investigator wanted to kill him, and he claimed that it was a very
8 rare occasion for someone to leave the investigations room alive.
9 Abdulah Brkic, about whom Kugic testified, stated, "Yes, I had
10 been interrogated. I was interrogated by an inspector from Banja Luka.
11 He gave me cigarettes; he gave me some water. He told the guard to take
12 me to have something to eat, and then he sent me back to the pista."
13 Witness Kugic testified before this Chamber that the detainees in
14 the hangar were made to eat live pigeons, to drink motor oil, but then he
15 stated that he had never been in the hangar and that it was actually
16 something that he had heard from others. Witness Kugic, furthermore,
17 stated that it was customary for the detainees to be taken into the
18 restaurant and then ordered to lie down, and whoever didn't lie down would
19 have been killed. And he even identified a particular guard who was the
20 ring leader, the guard Milutin Pavic.
21 We have heard a number of testimonies about this incident.
22 Mehmedalija Nasic was killed in this incident. But not a single witness
23 who testified later on confirmed the story as it was told by Witness
24 Kugic. Furthermore, Witness Kugic claimed before this Chamber that the
25 accused Prcac wanted to extort money from him. It is the Defence's
1 submission that Witness Kugic fabricated this event.
2 But then we are faced with the problem of motive. Why would
3 Witness Kugic lie that the accused Prcac had asked him for money in order
4 for him to be released from the investigations centre? The motive was
5 stated by Witness Kugic himself. He said that he had heard from some
6 people that his release from an earlier -- an early release from the
7 Omarska Investigations Centre, that is, from the 6th of August, had been
8 prevented by Mr. Prcac, and that was the motive why he testified against
9 him in this case. Everything else that he stated in this courtroom is a
10 pure lie. He came with the intention to revenge and he came with the
11 intention of presenting the situation in the camp in much worse terms than
12 it really was. It is for the Trial Chamber, of course, to assess the
13 credibility of the witnesses.
14 But he was not the only one to have made such fabrications. The
15 testimony of Witness Kugic should be placed in the context and the light
16 of the statement of Zlata Cikota and the testimony of Zlata Cikota. It is
17 not logical, Your Honours, for a person who wishes to enrich himself by
18 seizure and plunder to -- not to accept offers to sign -- offers to be
19 given property by signing a special contract to that effect. It simply is
20 not logical for such a thing to have happened, because Zlata Cikota stated
21 that if she wanted to come back, she was assured to be -- that her
22 property would immediately be returned to her.
23 Let me remind this Trial Chamber that Witness Ljubisa Prcac stated
24 that neither him nor his father nor anyone else from their family had ever
25 entered the premises, the garage or the weekend house of Zlata Cikota at
2 By using such half-truths, the Prosecutor also describes the event
3 involving his work colleague Travancic. That event has also been
4 described erroneously. The Prosecutor has presented only a portion of the
5 interview here and has completely forgotten the second part of the
6 interview, as it has wanted to.
7 They said that the witness saw, when Reuf Travancic was -- that
8 the accused saw when Reuf Travancic was beaten in front of the "white
9 house," but that he was afraid of Meakic and couldn't do anything. He
10 already said that he knew Reuf Travancic, that he was his work colleague,
11 and if he had been able to choose, that he would have helped Reuf
12 Travancic in the first place. That is why he asked Meakic to try and
13 transfer Reuf Travancic to the "glass house," that is, the area near the
14 restaurant. Reuf Travancic was, indeed, transferred to the "glass
16 The accused maybe did not react immediately; however, he did help
17 his former work colleague in a way. But the Prosecutor does not wish to
18 present it in such a way. They only want to present the accused as a
19 cold-blooded operator, and that he was observing his former work colleague
20 being beaten in cold blood. They're trying to describe him as someone
21 who -- how is that logical? How can a person refuse to help his former
22 colleague and still try to prevent a shooting?
23 I'm referring to the incident involving Karagic. He drew a gun
24 and he challenged the guards in order to protect the son of his former
25 friend. Witness Karagic was here and he testified that the accused had
1 not drawn a pistol and that he had said to the guards, "That's enough.
2 You will have enough time for that." And that is correct, that has been
3 correctly conveyed by the Prosecutor. However, they failed to mention one
4 other significant portion of the cross-examination.
5 Mr. Karagic admitted here that, at the Public Security Station in
6 Prijedor, he had been told that he would not leave Omarska alive, and he
7 confirmed here that he was afraid for his life and that that was the state
8 of mind he was in when he was in Omarska. He confirmed that he had been
9 ferociously beaten by a number of guards; that he had been forced to stand
10 against a wall with his legs spread apart and that he was made to face the
11 wall. He admitted this here, and we do not challenge that he did not see
12 what was happening at that time.
13 It is the submission of the Defence that we cannot base this
14 conclusion on the statement of a witness who said that he did not know
15 what was happening. He said that he had heard it. But, however, we still
16 do not know what it was that he had heard and from whom he had heard it.
17 He doesn't know whether Meakic was present there; however, Mr. Prcac, in
18 his interview, claimed that Meakic was indeed present there.
19 But what we find interesting here is the progress of conclusions,
20 because the incident involving Karagic is based on the incident and
21 half-truths involving Travancic. And by using such half-truths and
22 untruths, an attempt is here being made to ascertain the truth.
23 The Prosecutor has stated here publicly that the accused is also
24 guilty of the transfer of some women to Trnopolje - a very good
25 construction, indeed. The Prosecutor claimed that the accused was
1 responsible for the death of three women: Hajra Hodzic --
2 THE INTERPRETER: I'm sorry. I didn't hear two other names.
3 MR. J. SIMIC: [Interpretation] As regards -- but we do not know
4 anything about the fate of these three women, and Dragoljub Prcac is also
5 held accountable for that murder. Mugbila Besirevic, Hajra Hodzic. So
6 according to the Prosecution, Dragoljub Prcac was guilty because these
7 five women had remained, and that because we do not know what happened
8 with three out of those five women.
9 In their final brief, the Prosecution stated that the accused
10 Dragoljub Prcac had known that conditions were, indeed, very bad in
11 Trnopolje and that he made a conscience decision when he sent women to
12 where they would be exposed to worse conditions instead of leaving them in
13 the investigation centre which would have been contrary to the
14 instructions he had received. So if you send them to a centre from where
15 they would be released that was bad because of the conditions there. If
16 you leave them in a centre which they could not leave, they would be
17 exposed to -- they would disappear.
18 We made investigations to that effect, because the Prosecution
19 charge Dragoljub Prcac with responsibility for having made lists according
20 to which transfers and executions were made. Witness Mesic came here and
21 he testified as a fact witness, and he claimed that he had divided
22 detainees into three groups. He explained that with the need for better
23 operational aspect of the work. He testified that he had made a list of
24 women to be sent to Trnopolje in accordance with an order of Simo
25 Drljaca. He said that he had given the list to Dragoljub Prcac so that he
1 would read out from that list because he was present there and he was
2 standing close to them, and not because he would have had any particular
3 function or duty to that effect.
4 Witness Mirko Jesic, I must admit, is one of very rare witnesses
5 who came here and said that he had done something personally and which we
6 thought would have been incriminating. Witness Jesic explained how the
7 investigation service functioned, whether it was independent. According
8 to him it was, and it is also the submission of the Defence that it was
9 indeed independent. And he also said to whom investigators were
11 Let me remind the Chamber that proposals for arrests were
12 submitted by two investigators, Ranko Mijic and Mirko Jesic, and that was
13 approved by Simo Drljaca. There is not a single piece of evidence except
14 for some witnesses who claimed that the accused Dragoljub Prcac was
15 present at the Omarska Investigation Centre and carried some papers
16 around. Apart from that, there is not a single piece of evidence that he
17 was involved in any way in the drafting of those lists, nor that he was in
18 charge of those lists in any way.
19 Your Honours, it was not possible for him to know what would
20 happen with the people who had been called out, nor did we hear any
21 evidence about that. We cannot claim -- we do not have the right to claim
22 that if someone simply reads out from a list of detainees to be exchanged,
23 that that person would have had the mens rea and would have participated
24 in a common purpose doctrine if something happened to those people later
25 on. Dragoljub Prcac can only be held responsible for the events that were
1 taking place at the Omarska Investigation Centre.
2 The Prosecution also claims in their final brief that Dragoljub
3 Prcac had been seen on the 7th of August walking around the Omarska
4 Investigation Centre calling out names of detainees. Your Honours, not a
5 single witness supported that allegation. We didn't hear any witness who
6 was there after the 6th of August at the Omarska Investigation Centre, and
7 this is simply one more fabrication on the part of the Prosecution because
8 they wanted to prolong the stay of Dragoljub Prcac at the Omarska
9 Investigation Centre in this manner.
10 In order to support the claim that Dragoljub Prcac stayed at the
11 Omarska Investigation Centre longer, the Prosecutor claimed that Witness
12 AT on the 23th of August climbed up to the room where Dragoljub Prcac was
13 sitting at the time, that he addressed him as commander, "What will happen
14 with us," and that Dragoljub Prcac responded, "I don't know."
15 Witness AT testified before the Chamber and he stated that the
16 women had left for Trnopolje on the 3rd of August, and she was one of the
17 five women who stayed. Witness AT said that she had asked Dragoljub Prcac
18 at the pista what would happen with them and that he simply shrugged his
19 shoulders. Upon a question asked by the Defence if she could place the
20 event in any period of -- specific period of time, whether that was during
21 the first half of the month or the latter half of the month, the witness
22 responded, "No, I don't know." But the Prosecutor knows that it was on
23 the 23rd of August.
24 And finally, in their final oral submissions, they claim that
25 Dragoljub Prcac was guilty of all criminal offences he was charged with
1 under Article 3(5) of the Statute in the period from the 11th of July
2 until the 23rd of August, 1992.
3 The Prosecution also quoted an expert witness, Mr. Lakcevic, and
4 this Defence claims that expert Lakcevic never said anything of the kind,
5 perhaps somebody else did. In order to exert pressure, in order to make
6 an impression on the public, public opinion, the Prosecutor, in his
7 closing statement, claims and numerates a large number of persons who
8 disappeared or were killed in the Omarska Investigation Centre and places
9 the direct blame for this on Mr. Dragoljub Prcac.
10 The Defence will, later on, deal and enter into analysis of who
11 was killed when, but we should like to state at this point that there is
12 still not a scrap of evidence to show that somebody was killed during the
13 time that Dragoljub Prcac was present at the investigation centre of
15 The Defence would, at all events, like to draw the attention of
16 this Honorable Trial Chamber to some truthful facts. We are sure that
17 this Honorable Trial Chamber will not base its judgement on semi-truths
18 and untruths but we should like, nonetheless, to point out some facts
19 which we consider are indisputable or ones that are very important or
20 which are subject to analysis.
21 First and foremost, the Defence would like to remind the Trial
22 Chamber and this Court of the decision of the Trial Chamber itself with
23 regard to the respect of the Defence to bring in a motion for acquittal,
24 and the Trial Chamber ruled and said that in view of the complete absence
25 of evidence of the involvement of the accused Dragoljub Prcac before
1 arriving in the camp, he cannot and will not be responsible for the
2 possible crimes that took place in the Investigating Centre of Omarska
3 before his arrival regardless of what date that was.
4 In light of this decision, it is of crucial importance for us to
5 determine the date at which Dragoljub Prcac actually arrived in the
6 Omarska Investigation Centre and the date he left it. And to look at the
7 individual cases which represent crimes, that we should ascertain the
8 dates, the exact dates on which they took place.
9 Dragoljub Prcac, in the opinion of this Defence team, cannot be
10 guilty for a murder that took place in the month of July. He can,
11 perhaps, be responsible for a killing which took place between the 15th of
12 July and 6th of August but not, certainly, in the month of July. It was
13 the omission of the Prosecution to ascertain the date of death.
14 Therefore, the consequences of that omission cannot be borne by Dragoljub
16 The Defence in its final brief in section B, paragraph 27 to 46
17 analysed both Prosecution and Defence witnesses who testified to when the
18 accused arrived at work in the Investigation Centre of Omarska. All the
19 Prosecution witnesses stated that the accused came to work at the Omarska
20 Investigation Centre in the second half of July or towards the end -- the
21 last days of the camp before it was closed. Just one witness said, and it
22 was Witness AJ who said this, that Dragoljub Prcac came about 20 days
23 after his arrest which would make it some time around the 20th of June.
24 Not a single witness of the Prosecution testified to when
25 Dragoljub Prcac ceased to work in the Omarska Investigation Centre. Only
1 Witness AT testified, and I'm not going to repeat what that witness said,
2 but it is quite clear that he was not able to pinpoint an exact date. All
3 the Defence witnesses, however, confirmed that the accused Dragoljub Prcac
4 came to the investigation centre of Omarska in mid-July. Of course the
5 witnesses could not state an exact date. However, the Defence considers
6 that it has presented sufficient evidence and proof for a date, an exact
7 date to be ascertained. The exact date, the 15th of July, was also
8 confirmed by the accused and by the accused's son and there may be certain
10 Witness Momcilo Stojakovic testified before this Court and he said
11 he did not see the accused Dragoljub Prcac around. That his mother died
12 on the 9th of July, and that because of that, he was given leave of
13 absence of 7 days. He was a guard at the entrance gate in the
14 investigation centre of Omarska. And that on the 16th of July when he
15 came to work the first day after his mother's death, he noticed Dragoljub
16 Prcac coming to work at the Investigation Centre of Omarska, and he asked
17 his colleague at work Popovic, Obrad Popovic, and he told him that
18 Dragoljub Prcac had started to work the day before.
19 Your Honours, the Defence considers that it is beyond all
20 reasonable doubt, that it was proved beyond reasonable doubt that
21 Dragoljub Prcac started work at the Omarska Investigation Centre on the
22 15th of July. All the Defence witnesses claimed and testified under oath
23 here that the accused left the Omarska Investigation Centre on the 6th of
25 The Defence claims, furthermore, that the period which Dragoljub
1 Prcac spent in the Omarska Investigation Centre was the period from the
2 15th of July, 1992, up until the 6th of August, 1992, that is to say, 20
3 days. Twenty days working in shifts, or approximately 10 or 11 times.
4 The accused went into the investigation centre of Omarska 10 or 11 times.
5 Another question arises here and that is: When did the accused
6 Miroslav Kvocka leave the investigation centre? The Defence considers
7 that this is another vital fact. Many witnesses testified to these
8 circumstances and this fact. They were witnesses AJ, Azedin Oklopcic,
9 Witness AK, Witness AI, Witness B, Witness A, Witness Edin Ganic, and so
10 on and so forth. All of them claimed that Miroslav Kvocka left the
11 Omarska Investigation Centre at the end of June and, of course, they can't
12 say the exact date.
13 From the evidence provided we are able ascertain that accused
14 Miroslav Kvocka, on the 1st of July, was already at another duty post.
15 The Defence claims, the Defence of Miroslav Kvocka claims that he left the
16 Omarska Investigation Centre on the 23rd. We are satisfied with that. We
17 satisfied that it has been proved beyond any reasonable doubt that
18 Miroslav Kvocka did, in fact, leave the Omarska Investigation Centre at
19 the end of the month June.
20 So it is beyond any reasonable doubt, Your Honours, that from the
21 time Miroslav Kvocka departed and the arrival of the accused Prcac in the
22 Omarska Investigation Centre, we have a discontinuity of time, a time
23 lapse of at least 20 days and perhaps maybe more. Twenty days, for 20
24 days, the Investigation Centre of Omarska, as one of the main vehicles and
25 levers in the persecution of non-Serbs from the Prijedor municipality was
1 functioning without a deputy. There was no deputy.
2 Your Honours raised the question here many times as to how it was
3 possible that if Meakic was not present in the investigation centre,
4 somebody else did not take over his duties. The Defence wishes to ask:
5 How is it possible that during a set period of time, the Omarska
6 Investigation Centre was able to function at all without a deputy if he
7 existed at all? For 35 days, the investigation centre functioned without
8 a deputy commander or without the accused, that is to say, almost a third
9 of the time it was in existence it functioned without a deputy commander.
10 Let me remind you, and draw the Chamber's attention to one more
11 fact, and that is the Keraterm camp or investigation centre or collection
12 centre or whatever we like it call it. It was a very similar institution
13 both with respect to the number of detainees and the conditions that
14 prevailed in it, and also the time span that it last the for.
15 The Keraterm camp had no deputy komandir. In the Keraterm case,
16 nobody was accused by virtue of his position of being deputy commander,
17 and what is even more interesting is that the security of Keraterm was
18 provided by the Urije Prijedor 2 police station which was a police
19 station, by virtue of its structure before the war and, according to its
20 chain of command, it had a deputy commander, but the station department
21 did not.
22 If you draw a parallel between the two camps which are 20
23 kilometres apart in the same region, established by the same authorities,
24 during the same period of time -- which were in existence for the same
25 period of time, where the conditions were the same or similar, and for
1 which the Prosecution says had the same purpose, why did one of these
2 camps have a deputy and the other did not? And if that is such an
3 important function, how is it possible then that in the midst of the
4 existence of this Omarska Investigation Centre, there was no deputy
5 commander for more -- for a longer -- for a period of 20 days or more.
6 Now, the question arises here as to whether Mr. Zeljko Meakic was
7 the commander of the camp at all. The Defence claimed in its opening
8 statement as well, and presented sufficient evidence in the course of the
9 trial and I hope proved and showed beyond any reasonable doubt that the
10 Prosecution quite certainly did not prove that Zeljko Meakic was indeed
11 the camp commander.
12 Witness Mirko Jesic explained the competencies of the
13 investigators and to whom they gave their report and to whom they reported
14 for duty every morning. This was not Zeljko Meakic. The person they
15 reported to was Simo Drljaca. Perhaps my colleague considers, and she
16 said that this is a legal absurdity. Perhaps it is. But let us look at
17 the facts.
18 The sole witness who testified before this Trial Chamber in this
19 courtroom, a Prosecution witness who was released from the Omarska
20 Investigations Centre, was Fadil Avdagic. Fadil Avdagic was released from
21 the investigations centre because he left by bus with the investigators to
22 Prijedor and there received a chit, a certificate, from Simo Drljaca.
23 Nobody else was released. Simo Drljaca had de facto power to order that a
24 detainee be released from the Omarska Investigations Centre. We have no
25 proof of Zeljko Meakic doing this.
12 Blank page inserted to ensure pagination corresponds between the French
13 and the English transcripts.
1 The investigators, as a service, functioned completely
2 independently and autonomously, and this was borne out by all the
3 witnesses. The investigators or a portion of them had those
4 competencies. They were able to determine which rooms they would send the
5 detainees to. The investigators were the people who implemented the
6 investigation and ascertained the facts. They ascertained whether a
7 person had been armed or not armed. But the Investigation Service was
8 independent. Neither Zeljko Meakic or anybody from the security force had
9 any competencies and authority over the investigators.
10 As to the Banja Luka Special Unit, we have heard testimony from my
11 colleagues. My colleagues spoke about that special unit and I don't want
12 to dwell on that. But the unit and their commander Strazivuk were
13 independent. This unit was an independent unit working autonomously
14 within the frameworks of the Omarska Investigations Centre.
15 The army was present round the clock, nonstop, both in the complex
16 and outside the compound. These are facts which the Prosecution did not
17 show, but luckily we did have witnesses who testified to these facts,
18 although the Prosecution chose not to show them.
19 Witness T was here and testified, and he was characterised as an
20 extremist Mujahedin. [redacted]
24 know what his function was exactly, but we do know that he not have any
25 functions within the Omarska Investigations Centre. He was a military
1 man. And he said to the guard, Rade Ritan, whose affidavit this Defence
2 tendered, "Why have you brought me this one? He's not from Brdo. Take
3 him back." We have no evidence in these proceedings to show that anybody
4 from the security personnel could order the army anything.
5 Sifeta Susic testified that she was afraid of raped, of being
6 raped, and that she asked Meakic to help her. According to her testimony,
7 he said, "I can help you except if Cigo Radanovic turns up," once again
8 the army. The army was autonomous, independent, and acted accordingly.
9 At all events there were some other groups or services present
10 there. The Technical Service, the Territorial Defence, and they were
11 autonomous, likewise. We listened to the testimonies of two guards, Obrad
12 Popovic and Momcilo Stojakovic. We also examined Cedo Vuleta and many
13 others, who claimed that their directors were outside the Omarska
14 Investigations Centre and that they were civilian directors with a work
15 assignment, a work duty to perform.
16 What the Defence would like to say now and claims is that Zeljko
17 Meakic was not the camp commander. And if a deputy existed, the Defence
18 moves that he was not superior to everybody in the camp. He could only
19 have been a superior to the guards. The Defence feels that if a killing
20 did take place, we must ascertain who did the killing, who was responsible
21 for it.
22 The Prosecution has accused Dragoljub Prcac of being the deputy
23 camp commander, who came in June to replace Miroslav Kvocka on that post.
24 This claim the Prosecution bases on the fact that one man left and the
25 other man turned up. But there are no official documents to bear this
1 out. In the absence of any official and formal evidence and proof, the
2 only thing we can do is to compare the duties and function and behaviour
3 and hours of service, working times, of the accused Miroslav Kvocka and
4 Dragoljub Prcac.
5 In section C.3.1 of the final brief, the Defence analyses this
6 point, and we consider that there are no points in common, no common
7 denominators which could demonstrate that Dragoljub Prcac and Miroslav
8 Kvocka did, indeed, perform the same tasks or held the same post and
9 function. There is nothing in common, Your Honours, absolutely nothing to
11 First of all, there were no common points noted by the Prosecution
12 witnesses. We analysed their testimonies. They described how they
13 remembered Dragoljub Prcac and Miroslav Kvocka, and they described them in
14 a completely different way, both their behaviour and conduct, the way in
15 which they performed their duties, the times they were present, their
16 working hours, and everything else.
17 The question now arises: Upon what basis does the Prosecution
18 make its conclusions and accuse Mr. Dragoljub Prcac of being deputy
19 commander at all? Only on the basis of witness statements and testimony.
20 Prosecution witnesses testified here; they presented certain arguments
21 during their testimonies.
22 Now, what is it that indicates that Dragoljub Prcac was the deputy
23 commander? Let us take a look at that.
24 Before this Trial Chamber, we heard the testimony of 45 witnesses;
25 eight witnesses did not testify about the Omarska Investigations Centre;
1 37 witnesses did testify about the Omarska Investigations Centre. Of
2 those 37 witnesses, 23 witnesses make no mention of Dragoljub Prcac in the
3 context of him having a function of any kind or not. They simply don't
4 testify about that.
5 It is the position of this Defence that the Prosecution was
6 duty-bound, and this was stated also yesterday by my colleague
7 Mr. O'Sullivan, it was their duty to ascertain that fact. We consider
8 that if nobody testified to certain facts and circumstances, that they
9 know nothing about those facts and circumstances.
10 Fourteen witnesses, furthermore, testified as to the function that
11 Mr. Prcac did hold; four of those 14 witnesses say they had no direct or
12 immediate knowledge. All of them say, "We have heard," "we heard," et
13 cetera. This leaves us with ten witnesses. The Defence did not wish to
14 give the impression to think whether anybody would take this -- and Azedin
15 Oklopcic also testified to the function of Dragoljub Prcac. In his
16 testimony, Azedin Oklopcic says that "If somebody mentioned a name to me,
17 I would put him on the list."
18 So ten witnesses testified to the function performed by
19 Mr. Dragoljub Prcac. Some of them said he was a deputy; others said he
20 was the commander; others, yet again, said he was the warden or manager;
21 and others said that he was an administrative worker. There is no common
22 position as to his function.
23 If we analyse which of these ten witnesses said something in
24 concrete terms, said Dragoljub Prcac did this or ordered somebody that or
25 took the initiative to do this, or things of that kind, then we come to
1 number 2; that is to say, only two witnesses spoke in concrete terms as to
2 what Mr. Dragoljub Prcac actually did, and on the basis of this, they
3 might have gained the impression that he was the deputy commander. These
4 two were Nusret Sivac and Witness K.
5 We've already talked about Nusret Sivac and his credibility. I
6 don't want to tire the Trial Chamber by going into that again. He said
7 that at some point in mid-July he asked a guard to transfer a man from the
8 "white house" to Mujo's house because they had heard that he had been
9 beaten up, and that he had said that this had to be okayed by Dragoljub
14 Those are the sole two actions, if they are correct at all and not
15 fabricated, which indicate, point to something that perhaps Dragoljub
16 Prcac did do, or which could indicate that he had a function to perform in
17 the camp, and that he wasn't an ordinary administrative worker or duty
18 officer or guard.
19 Witness A --
20 THE INTERPRETER: Or K, I'm not sure.
21 MR. J. SIMIC: [Interpretation] -- we talked about him at length
22 here. Mr. Fila provided sufficient evidence about this witness'
23 credibility, and we consider that this Defence team has provided
24 sufficient evidence as to the credibility of Nusret Sivac or ...
25 Nonetheless, I would like to look at these two actions once again
1 and to ask this Honourable Trial Chamber whether actions of this kind are
2 sufficient grounds for somebody to claim that Dragoljub Prcac, even if he
3 did perform these actions, was indeed a deputy camp commander.
4 Let me remind you that Esad Sadikovic, the doctor who helped the
5 detainees in the Omarska Investigations Centre, on many occasions and in
6 many places was seen helping people, giving medical treatment, assisting
7 people. Nobody ever said that he needed somebody's permission to do
9 Not to waste time, let me just stress that Nusret Sivac himself,
10 in his testimony here, said that "I moved from the garage to the pista for
11 me to be nearer to the water tank or reservoir."
12 There is no evidence, without reasonable doubt, to show that the
13 Prosecution has shown that it was necessary to have special permission by
14 a superior, a deputy commander or commander for somebody to move from one
15 place to another, or for somebody to see Esad Sadikovic and to get help
16 from him.
17 So the conclusion is made on the basis of the assumptions and
18 personal experiences of some Prosecution witnesses, but there is not a
19 scrap of concrete evidence or proof, nor is there a common opinion of the
20 function that the accused had in the Omarska Centre. Some say he was
21 commander, deputy commander, warden, administrative worker, manager, or
22 perhaps none of those things.
23 The Defence considers that faced with a situation of this kind,
24 one must apply the principle of in dubio pro reo.
25 Your Honours, I have 15 to 20 more minutes, but I thought that
1 this might be an opportune moment for us to take a break.
2 JUDGE RODRIGUES: [Interpretation] Yes, you're quite right,
3 Mr. Jovan Simic, this is an opportune moment, and we're going to adjourn
4 for half an hour.
5 --- Recess taken at 10.50 a.m.
6 --- On resuming at 11.28 a.m.
7 JUDGE RODRIGUES: [Interpretation] Please be seated.
8 Mr. Jovan Simic, you may continue, please.
9 MR. J. SIMIC: [Interpretation] Thank you, Your Honours.
10 The Defence would like to once again repeat that we submit that it
11 has been proven beyond any reasonable doubt that Simo Drljaca was the main
12 and de facto commander of the Omarska camp. Allow me to refer, once
13 again, to Prosecution Exhibit. That is the feature film by Peggy Marshall
14 who, at the end of July, beginning of August, 1992, after talking to
15 Mrs. Nada Balaban stated that she was interviewing the camp commander, and
16 then she released this interview with Simo Drljaca.
17 At that point in time, he was in his office, unarmed, in a large
18 room full of documents, and he really behaved like a commander. We have
19 already referred to Witness Fadil Avdagic who testified here that he was
20 released from the Omarska Investigation Centre in mid-June upon approval
21 of Simo Drljaca himself.
22 Let me mention another detail, and that is the document that was
23 disclosed to us as exculpatory material for the accused Mladjo Radic from
24 the Tadic case where the Defence counsel Wladimiroff also testified in
25 this Tribunal and presented the conversation he had with Simo Drljaca. I
1 think it was in 1995.
2 He said that he went to see Simo Drljaca at that time. That he
3 asked for his assistance to be able to defend Mr. Tadic and that, at the
4 time, Simo Drljaca told him, "No one will testify from these parts. If
5 somebody does testify, he will get a bullet in his head." This is a
6 similar sentence to the one Simo Drljaca addressed to the accused
7 Dragoljub Prcac when he ordered him to transfer to the Omarska
8 Investigation Centre.
9 Therefore, in the submission of this Defence, Simo Drljaca is the
10 de facto camp commander. Zeljko Meakic may only be a komandir or
11 commander of the security of the investigation centre. The camp or the
12 investigation centre functioned on two occasions without a person who
13 would allegedly be the deputy commander from the end of June to the 15th
14 of July, and from the 6th of August until the 23rd of August.
15 By analysing witness testimony of witnesses of both the
16 Prosecution and the Defence, we can allege that it has been proven beyond
17 reasonable doubt that the accused Miroslav Kvocka performed the duties of
18 a uniformed officer as part of the security, and that the accused
19 Dragoljub Prcac performed a mixture of duties of an administrative officer
20 and a person who, in the police, is called the duty officer. They had
21 nothing else in common except for being in the Omarska Investigation
22 Centre, nothing in common between Kvocka and Prcac. Nor can we draw any
23 conclusions from witness testimony that they had identical duties which
24 they would have had to have if they held the same positions as alleged by
25 the Prosecution.
1 The Defence wishes to underline that the Prosecution has not
2 proven beyond reasonable doubt that Prcac was a deputy commander of the
3 investigation centre Omarska and, as a result, this Trial Chamber should
4 acquit him regarding the provisions under Article 7(3). As for the
5 charges against Dragoljub Prcac pursuant to 7(1) of the Statute, the
6 Defence says that there is no evidence to show that he was a deputy, nor
7 that he had any command responsibility.
8 Also on the basis of analysis of the statements of both
9 Prosecution and Defence witnesses and the exhibits tendered, there is no
10 question that the accused ever committed any criminal offence under
11 Articles 3 and 5 of the Statute. So he did not execute, plan, instigate,
12 issue orders, or aid and abet, or in any other way participate in the
13 planning, preparation, or commission of the crimes of which he is
15 The Prosecution, under Article 5, listed the names of prisoners
16 whom they consider to be missing, to have been killed, or tortured, held
17 under inhumane conditions, or humiliated, for which the accused Dragoljub
18 Prcac is held liable. Thus the Prosecution says that Dragoljub Prcac is
19 guilty for the death of Omer Ecimovic. Omer Ecimovic was in the
20 investigation centre but the date of his death is unknown but there are
21 witnesses who, from whose testimony one can roughly estimate when this
22 happened. Zlata Cikota testified that Adil Ecimovic and was taken and
23 that after, she never saw him again. That he was taken away on the 7th of
24 July, 1992, and after that Omer Ecimovic was taken out and left.
25 The Prosecution also alleges, that the accused Dragoljub Prcac is
1 responsible for the disappearance of Ago Sadikovic. Ago Sadikovic,
2 according to the testimony of Zlata Cikota, was taken to the hangar and
3 was killed there with two shots. Sifeta Susic said that Ago Sadikovic was
4 taken towards the "red house" and that she never saw him again, and the
5 body was not seen, nor is there any evidence that this occurred in the
6 Omarska Investigation Centre.
7 For a certain number of detainees, the Prosecution claims that
8 accused Dragoljub Prcac is directly responsible for them. There is no not
9 a single piece of evidence that any one of these persons was killed in the
10 Omarska Investigation Centre. Many witnesses have testified here, and
11 they have all confirmed that it was customary if someone was killed to be
12 placed next to the "white house." That is how the prisoners were able to
13 establish who was killed and when.
14 In the case of Buho Kapetanovic, Ziko Crnalic and his son, Caruga,
15 Mujo, by whom the room was named Mujo's room, a certain number of
16 intellectuals, Dr. Pesic, Begic, and others, the Prosecution says that
17 Mr. Drago Prcac is responsible for them. They disappeared at a time when
18 Mr. Drago Prcac was in the Omarska Investigation Centre. They say
19 consciously or unconsciously, in good faith or not, the Prosecution seems
20 to forget that in that period, there were exchanges of prisoners on a
21 number of occasions, and the Defence claims now that Dragoljub Prcac
22 cannot be held responsible if criminal offences were committed outside the
23 Omarska camp.
24 There is no evidence that he knew, in any way, or could have known
25 that the persons who were being sent for exchange could be executed or
1 were allegedly executed. The Prosecution also tells us that Mr. Dragoljub
2 Prcac is responsible for the torture of Sifeta Susic, Munevera Mesic,
3 Mugbila Besirevic, and Mirsad Kugic.
4 Sifeta Susic was threatened with rape. This Defence has already
5 mentioned that. If we look carefully at the transcript, this threat and
6 her conversation with Zeljko Meakic took place in the first 7 to 10 days
7 of her detention and she was arrested around the 24th of June, 1992,
8 possibly as alleged by the Prosecution on the 30th of June which the
9 Defence claims is not correct.
10 Munevera Mesic and Mugbila Besirevic were subjected to torture by
11 an unknown guard or a person from outside the camp. Let me remind the
12 Trial Chamber a cross was cut into one of them as claimed by Zlata Cikota
13 and some other witnesses. The other was threatened to have her breasts
14 cut off, but the date of that incident does not figure in the transcript.
15 Now, why should we claim and what right do we have to claim that that
16 incident occurred precisely while Dragoljub Prcac was working at the
17 Omarska Centre? This Defence was already referred at length to Mirsad
18 Kugic, and there's no need to go back to that again.
19 Mr. Prcac is also being charged for detention under inhumane
20 condition. The Prosecution claims that he had effective control over the
21 transfer of detainees and they referred to Mesan Omer who claims that on
22 the 6th of August, when calling out prisoners, 50 of them who appeared to
23 be a surplus, that he simply transferred them to the garage. The
24 Prosecution forgets that Omer Mesan who testified here did not identify
25 Dragoljub Prcac. How, then, can we be sure that it was, in fact,
1 Dragoljub Prcac?
2 Many witnesses of the Prosecution have confirmed here that the
3 reading out of the lists on the 6th of August was carried out by a number
4 of guards. This was also confirmed by Defence witnesses. It was no
5 privilege for a person to have come out and read a list at a certain point
6 in time. Other proof that the Prosecution relies on is the reading of a
7 list of the names of women who were then transferred to Trnopolje. We
8 have heard a lot about that in this courtroom.
9 Witness Mirko Jesic came and said, "I wrote that list upon orders
10 from Simo Drljaca." Even that is not important whether it was upon Simo
11 Drljaca's orders. What is important is that it was not compiled by
12 Dragoljub Prcac, nor was that any part of his duties.
13 The Prosecution also alleges that the accused Dragoljub Prcac was
14 authorised to determine the daily conditions in which the prisoners were
15 held, but they do not tell us on what grounds they claim that. There is
16 no evidence to prove that Dragoljub Prcac had any such authority.
17 The Prosecution claims that Drago Prcac was present when Rizah
18 Hadzalic was beaten to death. The Defence claims that at that time, on
19 the basis of everything we have said so far and for which we have provided
20 evidence, that Dragoljub Prcac, before the 15th of July, 1992, had no
21 duties in the Omarska Investigations Centre, nor was he working there.
22 The Prosecution claims that Dragoljub Prcac was seen all over the
23 place in the camp and that he passed by corpses and was able to see them.
24 The Defence claims that there is no such evidence to be found in the
25 transcript. Nobody said that they saw Dragoljub Prcac in the "white
1 house," in the hangar, in the "red house," or walking around the camp.
2 The witnesses who testified about the movement of Dragoljub Prcac
3 claimed that they saw him in Room B5 on the first floor, at the entrance
4 of the administration building, or passing by the restaurant. The accused
5 himself stated in the interview he gave to the Prosecution that he was in
6 the "white house" once and that he saw it, and that on the first day that
7 he arrived, on the 15th of July, together with Zeljko Meakic, that he saw
8 two corpses next to the "white house"; and that he asked Meakic then, "Why
9 aren't these removed?" and that Meakic said, "They have to be left there
10 because that is what Simo Drljaca ordered." The Prosecution goes so far
11 as to say that he was seen everywhere around the camp and that he saw
12 bodies, but there is no evidence to be found of that.
13 The Prosecution also claimed that Prcac was frequently seen in the
14 restaurant immediately after the beating of detainees started in the area
15 behind the administration building. To corroborate this, they refer to
16 Sifeta Susic's testimony who claimed that one day she saw Reuf Travancic
17 being brought in, who was beaten, and that at that point in time, the
18 accused Dragoljub Prcac headed in that direction. In answer to a question
19 from the Defence whether she saw where he went, witness Sifeta Susic said
20 no, but there were only two doors; the entrance door, the main door to the
21 administration building, and the door leading to a part of the
22 investigations centre where Reuf Travancic was beaten.
23 The Defence asked witness Sifeta Susic whether there were any
24 other doors out of the restaurant and she emphatically said no, that the
25 accused going in a particular direction could necessarily see what was
1 happening. That door exists and that can be seen in the photographs that
2 the Defence has tendered into evidence. It can be seen from the testimony
5 door, they could see the gates of the investigations centre.
6 The Prosecution claims that Mr. Dragoljub Prcac was present at the
7 time of the incident named Black Friday. The Prosecution did not even try
8 to establish the date of that incident. But if you look at the
9 transcript, [redacted]
11 Another witness confirmed that this was roughly at that time. He
12 said that this occurred roughly around the 4th of July, because the Black
13 Friday was the 4th of July. So certainly not during the period when
14 Dragoljub Prcac was working at the Omarska Centre. That witness is Kerim
16 Witness J claims that the accused Dragoljub Prcac was frequently
17 present at beatings and that he read out lists, after which people were
18 tortured and disappeared, and that he ordered the guards -- gave orders to
19 the guards to carry out those orders. When asked by this Defence, "Who
20 disappeared when he was read out from the list," the witness couldn't give
21 an answer. Asked, "What did he order," she didn't know, she hadn't heard
22 it. The same applies to Witness K.
23 The Prosecution charges Mr. Dragoljub Prcac with the incident on
24 Petrovdan, St. Peter's Day. St. Peter's Day is a Serbian religious
25 holiday. It is observed on the eve of St. Peter's Day, that is, between
1 the 11th and the 12th of July. At that time, Dragoljub Prcac had no
2 position, nor was he working in the Omarska Investigations Centre.
3 The Prosecution also claims that Dragoljub Prcac is responsible
4 for Sefik Sivac. He was brought to Omarska on the 8th or the 9th of
5 July. He testified about this killing and the date was not mentioned, and
6 it has not been established. The Prosecution, nevertheless, fixes that
7 date as the date when Mr. Dragoljub Prcac came to work at the Omarska
9 But there is another piece of evidence, and that is evidence of a
10 person proclaimed dead, issued in Sanski Most, and which the Prosecution
11 has tendered into evidence. Witnesses Enver Henic, Dervis Zeric, and
12 Sefik Gutic claim that Sefik Sivac was killed and that he died in the
13 Omarska Investigations Centre on the 11th of July.
14 Dragoljub Prcac is also charged with the death of Islam Bahonjic,
15 which Sebit Murcehajic, who testified here, said that this occurred in
16 mid-July, but the first or second weekend of July. Fadil Avdagic says and
17 testified about this incident, but as mentioned by the Defence, he was
18 released from the Omarska Investigations Centre a day or two after being
19 interrogated, and that was on the 16th of June. So certainly not in the
20 second half of July, as arbitrarily claimed by the Prosecution.
21 Husein Crnkic died in the Omarska Investigations Centre, according
22 to the Prosecution, during the period when Dragoljub Prcac was working
23 there. But there's no date of death in the transcript. And so on and so
24 forth. There are many such points, Your Honours, and I am quite confident
25 that you will review all these facts and establish them.
1 The Defence has produced quite a lot of evidence to show what kind
2 of person Dragoljub Prcac is. Dragoljub Prcac comes from a poor family,
3 and because of that poverty, he only completed five grades of primary
4 school. He went to do his military service, after which he worked as a
5 manual worker. Then he did some additional training, and at age 31, he
6 managed to complete his secondary education, something that was customary
7 in those Yugoslavia in those days, to be completed by the age of 18.
8 He devoted his entire life to his family; that is all he had. He
9 had no other material goods or satisfactions in his life. He had his work
10 and his family. He also had the misfortune of his second child being born
11 with a damaged right hand, so he had to work even harder to engage in
12 farming to feed his family and to invest his small pension into the
13 treatment of his child.
14 This was testified to by all witnesses. No one stated here that
15 the accused was prone to going to coffee bars, to having fun with his
16 friends, to attending football matches, or any other such occupations.
17 Everybody said he was a quiet, a silent, honest man who engaged in
18 farming, or, as my learned friend said, he raised geese and chicken. That
19 is all he did.
20 He never engaged in politics. The Defence has provided evidence
21 that he was not a member of the SDS or any other nationalist parties in
22 those days. He was a member of the League of Communists of Yugoslavia, as
23 everyone was who worked in the police, because that was a precondition.
24 And Dragoljub Prcac had no chances of advancing in his career except by
25 working in the police.
1 So such a man, who fought his whole life to make ends meet for
2 himself and his family, in the position of the Prosecution, had a common
3 purpose to take his revenge on non-Serbs and persecute the non-Serbs in
4 the municipality; such a man knew and wanted to expel his neighbours and
5 friends he socialised with and whom he assisted from that area, and the
6 motive is to enrich himself.
7 We heard here Witness Obrad Popovic who explained to us what kind
8 of house Dragoljub Prcac lives in. It's not a stone-built house. It is
9 made of mud, lined with boards. There is no parquet, there's no toilet,
10 there's no TV set in that house. It's a small hut and a small piece of
11 land from which the Prcac family made a living.
12 Such a man came to the conclusion that it would be a good idea to
13 expel the Muslims from Prijedor municipality, and such a person had the
14 intent and mens rea to commit crimes against humanity. A man who had no
15 influence even in his own village of Omarska, nor was his opinion asked
16 about anything; a man who brought up his children in such a way that his
17 oldest son's, Ljubisa's best friend was the son of Sead and Zlata Cikota;
18 a man who hated Muslims so much, they would have us believe, that he
19 carried parcels to unknown Muslims in the Omarska Investigations Centre.
20 This is a man whose large family, many of whose members are married to
21 members of other ethnic communities, and all this can be found in writing
22 and has been repeated in this courtroom many times.
23 The Defence would certainly like to underline that charges on the
24 basis of common criminal purpose or plan surely should be contained in the
25 original indictment, as was the case in the Talic and Brdjanin
1 indictment. It is not fair and it is not just not to publish this in the
2 indictment for the Defence to know what their client has been charged
4 In any event, the Defence has another question to put, and that is
5 the standard for defining an investigations centre or a camp. Is it
6 possible for one camp in the area to be a concentration camp, as Omarska
7 is described, whereas in the Celebici case, such an attribute is not
8 used? Is it possible if we have two camps or two investigations centres
9 or two collection centres, whatever we like to call them, in the same area
10 at the same time, they can have a different character and substance?
11 In any event, an essential precondition for guilt is intent, and
12 that means the awareness of the criminal offence and a clear decision to
13 participate by planning, instigation, or aiding and abetting, or
14 participation in any other way in that criminal offence.
15 The accused, Your Honours, had no awareness of a joint
16 participation in a criminal enterprise. He joined the Omarska Centre
17 under threat, frightening threat, and under coercion. Witnesses have told
18 us that. Such a person who spent his whole life struggling for himself
19 and his family had no choice. He could either have worked in the
20 investigation centre or could have got a bullet in his head, as has been
22 So what possibility did such a small man have to defend himself
23 from a power broker such as Simo Drljaca? One may discuss whether that
24 was morally in order or not, but between two evils, he chose the lesser
25 one or the greater one, it depends on the point of view. He opted in
1 favour for his family, and I don't think that is strange. I think all of
2 us here would have done that, would have opted for our family. The only
3 thing that he could have done is disassociate himself or to assist as much
4 as he was able to, and that is what he did.
5 All the witnesses who testified to Mr. Prcac's conduct said that
6 he had very little contact with the guards. He stood apart. He acted in
7 a formal manner. He spent most of his time inside in the room. On the
8 other hand, others testified that he assisted, he brought parcels, he
9 never said or did anything bad to anyone. So the Defence claims that the
10 accused was not consciously and willingly a participant in the system of
11 repression that existed in the Omarska camp.
12 Finally, Your Honours, this Defence would like to comment on the
13 sentence proposed. The Prosecution tells us that there are no mitigating
14 circumstances. That is their position. We claim that there are.
15 First of all, there is the age of the accused Dragoljub Prcac. He
16 was arrested and the trial started 45 days after his arrest. This Defence
17 had 42 days to prepare the Defence since it was on the 28th of April, 2000
18 that we started with the interview with the Prosecution.
19 If we were to analyse the interview given by the accused Dragoljub
20 Prcac to the Office of the Prosecutor and the evidence presented here in
21 court, all which this Honorable Trial Chamber will establish is being the
22 truth, I allege that they will find no differences from the very beginning
23 Dragoljub Prcac has been telling the same story in this Tribunal.
24 Due to circumstance, Mr. Dragoljub Prcac's health has been
25 impaired here. We have all witnessed that. We never took advantage of
1 that, neither the Defence, nor the accused, to prolong or delay the
2 proceedings in any way, and every day was more than precious for us to
3 prepare our Defence.
4 I should like to remind this Trial Chamber and also express my
5 gratitude because I had a lot of problem together with my colleague Masic
6 to mail our final brief. Obviously the communication lines are not
7 functioning properly in Yugoslavia. You know that we would always comply
8 with our obligations on time, but we never took advantage of the
9 misfortune that has befallen the accused and his health to gain some extra
10 time. Every time when he fell ill, Mr. Prcac waived his right to be
11 present at the proceedings.
12 Another point of interest for the Defence is whether the position
13 of deputy commander automatically implies requesting a 35 year sentence.
14 Is there an individualisation of a sentence? Is there a difference
15 between Miroslav Kvocka and Dragoljub Prcac regardless in whose favour, or
16 is it sufficient to establish that somebody was deputy commander for him
17 to be sentenced to 35 years?
18 And finally, what is the difference between 35 years requested by
19 the Prosecution for Dragoljub Prcac and life imprisonment requested for
20 Mr. Zigic and Mladjo Radic. The Prosecution probably believes that
21 Mr. Prcac will, on his 100th jubilee anniversary leave the prison and go
22 to Prijedor to see if anything has changed there. Obviously the
23 Prosecution is not interested how old Mr. Prcac is, nor to what extent he
24 truly is individually responsible for what happened in the Omarska
1 Finally let me tell this Trial Chamber, in Yugoslavia, there used
2 to be a judge called Cicvaric. He mostly tried political offenders and on
3 one occasion, he sentenced a man of 70, because he said something against
4 Tito, to 20 years of imprisonment. And cynically he asked him and
5 sadistically, "Do you have anything to say, and what is your opinion of
6 the sentence? And he said, "Comrade judge, I am not guilty and I really
7 don't see how I will be able to survive for 20 years when I am 70 years
8 old." And Judge Cicvaric said to him, "Well never mind, serve for as long
9 as you can."
10 If you accept the request of the Prosecution and sentence
11 Dragoljub Prcac to 35 years then you may use those same words. Thank
13 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Jovan
15 This brings us to the end of the closing arguments of the Defence
16 in this case and I think that we can now move on to the questions of the
17 Judges and let me give the floor to Judge Riad.
18 [Questions from the Trial Chamber]
19 JUDGE RIAD: Thank you very much, Mr. President.
20 I have only one question, perhaps, to Mr. Jovan Simic. You
21 mentioned that if Mr. Prcac moved the detainees from one place to another,
22 this was an act which did not require any permission of a superior. Do
23 you, by that, affirm that any guard had authority to move the detainees
24 from one place to another. Was that in harmony with the discipline of the
1 MR. J. SIMIC: [Interpretation] Your Honour, Judge Riad, I do not
2 claim that individual guards did that. I claim that everybody did that,
3 and evidence to that effect can be found in the transcript.
4 There is information and also there is testimony that certain
5 guards said that they were not able to do that without their commander
6 Meakic, and later, they claimed that they were not able to do that without
7 investigators. What we know for sure, and what has been proved here that
8 from the very beginning, the security of the Investigation Centre in
9 Omarska distributed detainees, sent them to individual premises.
10 There is information to the effect that investigators, once the
11 interrogation was completed, would send detainees to various places,
12 various rooms within the centre. That must have been decided upon the
13 type of categorisation of the detainees at that time. But if we have a
14 look at the testimony of Prosecution witnesses, we can see that very
15 often, very frequently, they changed the place where they where.
16 Sometimes it was on their own initiative, and sometimes with somebody
17 else's assistance. But in any case, for someone to be transferred from
18 one room to another, in our submission, Your Honour, it was possible for
19 that to be done by an individual guard. And in certain cases, it was also
20 possible to be done by the detainee himself, and the similar situation
21 probably existed in the Keraterm camp as well.
22 Many witnesses, even the ones who testified here in this case: V,
23 Y, said that, forever example, "I was in Room 1 and then I moved to Room
24 3." Nobody said that they needed specific permission to that effect, let
25 alone the permission of such a highly-placed individual within the
1 hierarchy. If this satisfies your question, Your Honour.
2 JUDGE RIAD: The fact that I gathered from what we heard that
3 really, the matter was in the hands of the investigators and people in the
4 camp, whether they were deputies, or commanders, or guards, were not
5 really decision makers. It was the investigators who decided what would
6 happen to any detainee and where he would be put.
7 So in that case, this would be in violation of the investigator's
8 orders, if I understood rightly, because everybody was supposed to go
9 somewhere according to the investigator's decision. That was what I
10 understood. So I'd just like to reconcile this with what you said.
11 My second question also relates to this one, in fact. Mr. Prcac
12 did commit -- did act charitably and humanely. We heard that many times.
13 He would give medicine, and he would act charitably.
14 Now, also this -- do you think or would you affirm that anybody,
15 normal guard, could do that in the camp with impunity and would this be in
16 harmony, in accordance with the system of the camp, or would he be taking
17 the matter in his own hands in acting separately from the camp with
18 some -- with some risk.
19 MR. J. SIMIC: [Interpretation] Your Honour, Judge Riad, I think
20 that many people from the security personnel assisted the detainees. We
21 have heard here that they did so secretly in most of the cases. But we
22 should have a look at the situation in a broader contest text. At the
23 very beginning, obviously, nobody knew how long the camp would exist nor
24 what would happen there. And if you would allow me, let me try to explain
25 this in greater detail.
1 The Investigation Centre in Omarska was established on the 31st of
2 May. People were being brought to -- people had been brought to the
3 Omarska Investigation Centre even before that, but it was empty so they
4 were returned to the Keraterm camp. At the beginning, help was allowed,
5 and people did help. Later on, pursuant to an order of Simo Drljaca, and
6 in view of the circumstances, the situation changed and it was forbidden
7 to help detainees so people did it secretly.
8 If you remember Husein Ganic who testified here, a Prosecution
9 witness, he claimed that at the very beginning, it was risky for you to do
10 that. That if anyone should discover that you are helping Muslims, that
11 your house could be burned down and you could be killed. So I think that
12 any help, if it was indeed provided, it had to be provided secretly or
13 through some private channels, but certainly not publicly.
14 JUDGE RIAD: So you are, in fact, maintaining that he ran a risk
15 by -- with this charitable actions and it was not just -- because first
16 you said it not need permission of a superior, it was allowed. But I
17 gather now that he really ran a risk.
18 MR. J. SIMIC: [Interpretation] At the beginning it was allowed,
19 but later on it was done with a risk.
20 JUDGE RIAD: Which one did he do? When it was allowed or when it
21 was risky?
22 MR. J. SIMIC: [Interpretation] Your Honour, he did it both ways.
23 At the very beginning, he took parcels to the Omarska Investigation Centre
24 when it was allowed. Then an order came, and Zlata Cikota testified that
25 he carried parcels even after that. The detained women claimed that he
1 had -- took clothing to Zumo Mehmedic. We cannot call evidence to all of
2 such instances, whether he would bring food now and then, a piece of bread
3 or a sandwich, but he also did it afterwards.
4 JUDGE RIAD: Thank you very much.
5 MR. J. SIMIC: [Interpretation] Thank you, Your Honour.
6 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge
7 Riad. Madam Judge Wald has the floor.
8 JUDGE WALD: I have several questions for the Prosecutor first,
9 and then some for the Defence.
10 My first question is whether or not it's your theory that other
11 defendants besides defendant Radic can be held responsible for the rapes
12 or sexual assaults. Is it part of your theory that, assuming that they
13 took place, that they were well enough known so that they were comparable
14 to the bad food, or the bodies lying near the "white house," or the people
15 forced to spend time on the pista or the beatings? I'm not entirely clear
16 whether part of the case is could be find to defendant Radic.
17 MS. SOMERS: Thank you, Your Honour. Under the concentration camp
18 theory, the category 2 of common purpose, we have alleged these crimes as
19 to other co-perpetrators.
20 JUDGE WALD: Yeah, but if you're going to do that, my reading of
21 those cases, you have to be willing to also allege that when people
22 entered this enterprise, which is the camp, that they were aware, in fact,
23 a lot of the camp cases were death camp cases in the Nuremberg situation,
24 and that they knew what the ultimate objective is.
25 Now, my question to you is: What evidence we've had of the rapes
1 suggests, you know, they took place at a time or with regard to the
2 smaller contingent of women, and I just wondered whether or not you really
3 are suggesting that anybody that joined the camp should have known that
4 rapes would be going on the same way -- your theory is they should have
5 known that beatings were going on and bad food, and that kind of thing.
6 MS. SOMERS: The evidence has shown, Your Honour, and prior to
7 when the allegations were predicated on notoriety. I mean it was a day
8 and night event. It wasn't an isolated incident. There were events
9 happening during the daytime, during the night-time. And again --
10 JUDGE WALD: We have evidence -- you have provided some evidence
11 of some, but in terms of the notoriety or the knowledge, you -- I'm just
12 trying to clarify your position. You really do think that you can say
13 that they were part of what everybody knew was happening in the camp.
14 MS. SOMERS: Certainly as to the superiors, as to Kvocka and
15 anybody on -- anybody above Radic who were on the same floor who would
16 have had the same type of access to conversation, or knowing the physical
17 layout or the proximity of the women to their office. That would be one
18 factor going to notoriety. But given the persons with whom we have
19 divided this responsibility as a co-perpetrator, yes, I think it's a
20 very -- I think it is our position.
21 JUDGE WALD: Okay. I've got your answer.
22 MS. SOMERS: May I comment further?
23 JUDGE WALD: Yes.
24 MS. SOMERS: Thank you. That witness Safeta Susic was told by
25 Meakic that people in town were discussing it. Notoriety of rape was
12 Blank page inserted to ensure pagination corresponds between the French
13 and the English transcripts.
1 clearly there.
2 JUDGE WALD: The second question is -- this is a general question
3 but I want to clarify it. Are you using or basing your claim of
4 persecutions on basically the same, the same incidents that you are basing
5 your claims of murder, torture, and rape on?
6 MS. SOMERS: The same operative facts.
7 JUDGE WALD: The same operative facts. You've got different
8 theories, I understand, but it's the same basic set, core of facts.
9 MS. SOMERS: It is, Your Honour.
10 JUDGE WALD: Okay. Now, my third question is: Assume for the
11 moment, though you would not like to, but assume for the moment that the
12 Defence theory that, in fact, there were no superiors or that everybody in
13 this courtroom were only guards, were only ordinary guards, would you have
14 any theory of responsibility or would you consider the whole case to have
15 collapsed? What I'm getting at, obviously, is: Is all your theories
16 based upon a basic showing that these people had some superior authority
17 in the camp? If they were, in fact, only guards over there, would you
18 have any theory that you think could survive?
19 MS. SOMERS: There would still be the committing common purpose
20 theory which we feel certainly is applicable and has been argued
22 JUDGE WALD: Well, actually, the common purpose theory on guards
23 if you go back to what little precedent we have in the Nuremberg cases, it
24 goes two ways, as I'm sure you are aware. There are some that say that if
25 anybody who enters a death camp and knows it's a death camp is going to be
1 responsible. On the other hand, there are also precedents that say that
2 if you are higher up, you are responsible for things that go down but if
3 you are a cook or a guard, then you have to have done something bad
5 MS. SOMERS: There are -- certainly within this case there are
6 direct participation --
7 JUDGE WALD: Yes, I agree. I'm leaving out the counts against
8 defendants Radic and Zigic, of course, different category vis-a-vis
9 authority. But leaving those out and looking to the ones --
10 MS. SOMERS: I'm sorry.
11 JUDGE WALD: Go ahead.
12 MS. SOMERS: Taking the interpretation, we have based our case
13 heavily on what we think is very strong proof on superior authority.
14 JUDGE WALD: I understand that. I'm asking the ultimate
15 question --
16 MS. SOMERS: Having said that, having said that, we believe and we
17 have relied also on precedents so that we feel we could rely on the common
18 purpose theory even as to these individuals. I know there are two
19 different camps of -- excuse me, two different lines of precedent, and we
20 feel we are safe to rely and let the Chamber look at the entire set of
21 facts, and I believe it is extremely important to look at the entire
22 context of this camp to decide.
23 JUDGE WALD: How would you then distinguish the Celebici
24 appeals -- I think it's a ruling, in fact, that an ordinary guard has no
25 responsibility if he's just a plain guard, even if the people inside the
1 camp that he is guarding are, in fact, illegally detained? It's not his
2 responsibility to ...
3 MS. SOMERS: Even if there are ordinary guard status titles or
4 functions, as to these individuals, again, if one doesn't want to call
5 them shift leaders with the ability to give orders, they are hardly
6 ordinary guards, in that the other functions, the trust that was placed in
7 them by those who were in command positions, Meakic, it would suggest that
8 they are not ordinary guards, that they at no time were.
9 JUDGE WALD: Well, you are, in effect -- let me push you. You
10 are, in effect, conceding that if we were to adopt the Defence -- common
11 Defence strategy that they're ordinary guards, there wouldn't really be
12 anything left in the case.
13 MS. SOMERS: Well, no.
14 JUDGE WALD: You're not?
15 MS. SOMERS: No. I also wanted to point out so that the Chamber
16 does not perceive that we're going down the line of unlawful confinement
17 which --
18 JUDGE WALD: No, I know the difference. You're going to say that
19 that was just dealt with, unlawful confinement, and you're dealing with
20 confinement and inhumane and terrible conditions.
21 MS. SOMERS: That's right.
22 JUDGE WALD: But I'm simply asking you that. All right. I have
23 one other question on your theory of superior responsibility insofar as
24 7(3) is involved. Are you arguing that people like Kos and Radic, under
25 7(3), should have known of any abuses that were being created by members
1 of their shift? If you are assuming that they were shift leaders and had
2 some responsibility and command over their shift, are you saying that's
3 the limits of their authority? In other words, could Radic be held
4 responsible for crimes committed by people outside his shift, could Kos be
5 held responsible for crimes committed by people outside his shift, or does
6 the 7(3) responsibility end with those over whom they -- not Kvocka or
7 people you're claiming were deputy commanders, but the shift leaders.
8 MS. SOMERS: No. With 7(3) only, just the shift.
9 JUDGE WALD: So it's only where there is a direct line of
11 MS. SOMERS: That's right. Right. And of course we --
12 JUDGE WALD: All right. My last question to you is: Can you
13 elaborate a little bit more, because I was not sure I got a clear line,
14 between what you would be alleging were the crimes that came under a
15 common purpose theory and what crimes might come under an aiding and
16 abetting persecution theory, if there is, indeed, any difference?
17 MS. SOMERS: There were some. I think it may have been in
18 relation to --
19 JUDGE WALD: You said something at the end, but it went by so fast
20 I wasn't sure I understood it.
21 MS. SOMERS: It was in relation, I believe, to Kos about standing
22 by. Any person in a superior position who stood by and did nothing while
23 a crime was being committed would be viewed in the aiding and abetting
24 capacity. And, of course, one could also make it part of common purpose.
25 I think you can -- of the --
1 JUDGE WALD: So you're talking about, in your view, these are
2 overlapping theories.
3 MS. SOMERS: I think they can be.
4 JUDGE WALD: Common purpose being the bigger or --
5 MS. SOMERS: Common purpose is, yes, the bigger one, but I believe
6 that they are not necessarily exclusive of each other by any means.
7 JUDGE WALD: Okay. Thank you.
8 MS. SOMERS: Thank you. Your Honour, may I take this opportunity
9 just to make one point which I have, in the interest of not interrupting
10 the past two days. I just wanted to express a concern about much of the
11 argument of Mr. Stojanovic and Mr. Simic was to our brief which was filed
12 confidentially to protect witnesses, and I just needed to make sure that
13 that was known. There was much reference in detail to a confidential
14 filing. Thank you, Your Honour.
15 JUDGE WALD: Okay. I do have just a couple of questions and they
16 are questions for the Defence, just two I think, and they are questions
17 that actually relate to the theory that was raised by several defendants.
18 So what I'm going to do is simply ask the first question of Mr. Kvocka's
19 counsel, Mr. Simic, just on that theory, because he comes first in line,
20 and then maybe the second one for Mr. Kos's counsel.
21 Mr. Simic, I wonder, in line with Ms. Somers' response to my last
22 question, what you see from the Defence point of view as being the
23 difference between a common purpose theory and an aiding and abetting
24 persecution theory. And to be more specific, if the theory is that the
25 whole camp was a kind of persecution enterprise and that people who worked
1 knowingly in it - I say the theory, the Prosecution theory being that -
2 were aiding and abetting it, and the common purpose theory would be
3 anybody who joined it became responsible for whatever was happening there
4 that they knew about, what's the difference, in your view? Why would one
5 be worse than the other?
6 MR. K. SIMIC: [Interpretation] Your Honour, the Defence has
7 addressed the issue in its final brief from paragraph 55 onwards, and I
8 also want to point out that we had done that prior to the issuance of the
9 Talic decision. Our position is almost the same, generally speaking, as
10 the position indicated in that decision.
11 What we pointed out in our final brief and what I'm going to
12 repeat now is as follows: The common purpose theory was viewed by the
13 Defence as a certain form of complicity, where there is a great
14 resemblance to the aiding and abetting theory. We were faced with a big
15 problem of distinction between the aiding and abetting theory and the
16 common purpose theory.
17 While analysing a number of relevant decisions, we reached the
18 same conclusion, that the gradation in the Tadic decision has applied the
19 same principle, and that what we are dealing with is aiding and abetting
20 or a certain form of encouragement. It all goes to the issue of intent
21 and premeditation and the intent within the common purpose theory.
22 Let me also add that we do support the term which was suggested by
23 the Chamber in the Tadic case, that it should be referred to as common --
24 that it also -- that it belongs to the area of intent; where the accused,
25 the defendants, must have absolute knowledge about the existence of such a
1 plan, about the elements of such a plan, and there has to be a required
2 mental element, common mental element to perpetrate it.
3 Let me go back to the case which was mentioned by my learned
4 colleague here, the incident involving Mehmedalija Nasic. You have seen,
5 everybody said that Mr. Nasic went crazy, and the guard Dragan Popovic
6 opened fire. But from the evidence, it was obvious that Kvocka was not
7 present there. Do we have the existence of common mental element between
8 Mr. Kvocka and the perpetrator, Dragan Popovic? We believe that we are
9 dealing with responsibility under Article 7(1) here, which is a similar
10 type of responsibility.
11 But it all goes to the issue of intent, and that for this type of
12 responsibility to exist, a higher standard of intent must be met. We
13 cannot have the eventual intent here, for this possible intent dolus
14 eventualis here for this theory to stand. This issue was addressed in our
15 final brief.
16 JUDGE WALD: Yes, but --
17 MR. K. SIMIC: [Interpretation] If you will allow me, Your Honour,
18 one further thing I would like to add in response to your question. In
19 our final brief, we submitted that this should have been pleaded in the
20 indictment --
21 JUDGE WALD: I understand.
22 MR. K. SIMIC: [Interpretation] -- for the reasons indicated
23 therein. Thank you.
24 JUDGE WALD: Thank you. Thank you, Mr. Simic. Let me ask
25 Mr. O'Sullivan the second question.
1 Would it be fair, Mr. O'Sullivan, to say that the theory of
2 liability that you and I think some of your colleagues espouse would, in
3 this case, in a camp case of this type, would be limited to what a
4 particular individual either actually participated in personally or, under
5 7(3) have a sufficient knowledge to meet a 7(3) standard to know that
6 something was going on that that person -- there was a crime that that
7 person could either prevent or subsequently punish, that that's the
8 limitations? Or do you recognise any responsibility beyond personal
9 participation or 7(3) kind of knowledge and ability participation?
10 MR. O'SULLIVAN: Our position is limited to the way you've just
11 described it, and that's in keeping with the order of the previous Trial
12 Chamber on the bill of particulars that was attached to the indictment,
13 which there did specify which alleged acts under 7(1) Mr. Kos is alleged
14 to have committed. So we do limit the indictment to 7(3), as you've said,
15 and 7(1), as you have described it.
16 JUDGE WALD: One very short follow-up question on that. Assume
17 for a minute that somebody does have some degree of superior authority - I
18 mean some degree; leave it indeterminate at the moment - but it's unclear
19 whether or not that authority is sufficient so that that person could
20 order someone else to stop doing something or not to do something, do you
21 think that there is any duty commensurate with liability based on that
22 duty when somebody with that kind of somewhat ambiguous authority sees
23 mistreatment or is in the presence of mistreatment or knows mistreatment
24 of detainees is going on but is unclear whether they have the ability to
25 order the stoppage? Do you think that that person has any responsibility
1 to try, is what I'm saying, to do anything; to report the mistreatment, to
2 complain about it even in it's not crystal clear that that person could
3 issue a command order to stop it?
4 MR. O'SULLIVAN: Well, one area of law of the Tribunal which
5 appears to be settled and clear is 7(3), and you're either a superior or
6 you're not.
7 JUDGE WALD: What being a superior?
8 MR. O'SULLIVAN: A superior with material ability to order and
9 punish, to be in effective control, which can be de facto or de jure. But
10 that relationship to the perpetrator must be proven beyond reasonable
11 doubt for liability or responsibility to incur.
12 JUDGE WALD: So just let me give you a specific example and then
13 I'll let you sit down, and that is that suppose somebody who is a shift
14 commander -- now suppose there is such a thing as a shift commander and
15 the shift commander has some responsibility, some authority over, and that
16 shift commander is going by -- maybe his shift is over or something and
17 he's going by and he sees a guard in a different building or on a
18 different shift, not his shift, committing a misdeed or clearly a
19 mistreatment of the prisoner, it's not his responsibility, in your view,
20 his criminal responsibility, to try to do anything to stop that since it's
21 not clear that this is somebody under his command?
22 MR. O'SULLIVAN: That's correct, not under Article 7(3).
23 JUDGE WALD: Or under anything else that you would accept as
24 governing liability in a case like this; is that right?
25 MR. O'SULLIVAN: Well, it would -- if anything, it has to be
1 proven under an aiding and abetting theory that that person who did
2 nothing --
3 JUDGE WALD: Right.
4 MR. O'SULLIVAN: -- had a substantial effect upon the commission
5 of the other offence. But that must be proven beyond reasonable doubt.
6 JUDGE WALD: Okay. Thank you.
7 JUDGE RODRIGUES: [Interpretation] Thank you very much, Madam Judge
9 I also have a few questions, some for the counsel for the
10 Prosecution and some for the Defence counsel.
11 Ms. Somers, we were speaking about the common purpose theory here,
12 and if I understand you correctly, you are basing your theory on the
13 principle, on the allegation that Zeljko Meakic was the camp commander,
14 and Kvocka and Prcac were deputy commanders or assistants to the
15 commander. There were also guards in the camp who had appropriate duties,
16 such as shift leaders, for example.
17 If we admit that the Defence theory that Meakic was not really the
18 commander but that Simo Drljaca was the de facto commander, if we accept
19 that, and if you also accept that it was under the command of Simo
20 Drljaca, there were several independent sectors, state security sector,
21 security personnel of the centre itself, that there were also the military
22 there and an independent administrative sector, and so on and so forth.
23 This type of organisation of the camp, how does it change, how does it
24 affect your position as regards the common purpose theory? That is, how
25 do you link your common purpose theory in respect of guards, that is,
1 Meakic and the guards, the link between Meakic and the guards, and other
2 independent sectors within the camp which existed at that time? How do
3 you establish, how do you make that link, in view of the common purpose
5 MS. SOMERS: Your Honour, I'd like to make sure I understand. If
6 Your Honour is suggesting that the only commander would have been Drljaca,
7 is Your Honour suggesting that everyone else was basically just another
8 equally-levelled person? First, I need to respond because the record --
9 the transcript, page 11753 of Mirko Jesic, who is named by Drljaca as one
10 of the coordinators, specifically refers to, "I immediately went to see a
11 leader or commander, Zeljko Meakic." So the record is in support, and he
12 was probably the highest-ranking Defence witness to have given testimony,
13 I think we certainly are sure the Chamber would give great weight to that
14 confirmation of what we have been asserting through the whole case.
15 The entire camp, the entire camp is a common system of repression
16 under common purpose theory. Those who participate knowing that, and
17 again we say for the sake of argument, if -- and we do not agree with it,
18 but if Meakic, Kvocka, Radic, everyone were equals, Prcac, still you would
19 have the common purpose doctrine affecting the common -- the system of
20 repression. So you would still have your ability to look at it. But I
21 think in the case of Omarska, there is so much evidence of direct
22 participation, even if they were not, for the sake of argument, if they
23 were not, for the sake of argument, 7(3) responsibility cases.
24 So 7(1) is covered on a number of levels for all persons in this
25 camp. We think the evidence is proven beyond a reasonable doubt that you
1 have the 7(3). But certainly you have ample 7(1) under both direct and
2 common purpose.
3 JUDGE RODRIGUES: [Interpretation] Very well. While we're still on
4 this issue, Ms. Somers, one more question: I think that in order to have
5 the common purpose theory, what is necessary is that several participants
6 have a will to accept the results or consequences which are produced by
7 each member of the group. I can, for example, not be present there, I can
8 be unaware of what is going on, but there is a common purpose and there is
9 a common plan. It means that I want the results produced by another
10 member of the group as well. There must be a certain intent which is
11 shared by everybody else or a will to share the consequences produced by
13 What is the evidence that can support that? What is the evidence
14 for the allegation that each individual participant wanted the results
15 which were products of the conduct of other members of the group?
16 MS. SOMERS: There are some concrete examples that come right to
17 mind with Kos and Radic leading beatings, with beatings being some of the
18 manifestations of the inhumane treatment that was part of this system of
19 repression. The willingness -- in terms of willingness to
20 enthusiastically come to work. I think if I'm not wrong, Radic, I think,
21 missed only one shift, if I recall, for a birthday. I mean, in an
22 atmosphere where we have heard evidence that people come and go, if they
23 want to show, the degree of conscientiousness seems to be up to the
24 individual. The wilful, energetic participation, the regular
25 participation, is one indicium.
1 There are a number of statements that were issued -- not
2 statements, excuse me, a number of comments issued at the time, for
3 example, when Kos was watching beatings, saying, "Hit that one. Hit that
4 one," and they are very specific instances.
5 If the Chamber would like, I can go on. But the record will
6 support well that there was knowledge, encouragement, and even sometimes
7 when there was witnessing and failure to act, I mean, it's also that it's
8 okay, so what you're doing is okay, the scheme is fine.
9 JUDGE RODRIGUES: [Interpretation] Very well. Another question,
10 Ms. Susan Somers. As you know, Article 24 of the Statute or Article 87
11 and 101 of the Rules of Procedure establishes criteria and conditions for
12 sentencing and, as you know, the two essential criteria is the seriousness
13 of the crimes and the personal circumstances, those are the two essential
14 points in addition to the others that you are well aware of, the other
15 penalties and the sentencing in ex-Yugoslavia.
16 Now, bearing in mind these two basic criteria, you have proposed a
17 sentence of 35 years for Mr. Prcac and life sentence for some of others.
18 How do you see the utilisation of these two criteria to arrive at that
19 conclusion because the practice of it is a problem; 35 years for
20 Mr. Prcac, it is more than a life sentence, perhaps. So how did you use
21 those two basic criteria to come up with your sentencing requests?
22 MS. SOMERS: We start from the position, Your Honours, that these
23 individuals are in superior authority in that camp; however, that is
24 not -- but that is just a jumping point. That is a tremendously
25 aggravating factor. They are police officers, police officers, one a --
1 he is a police officer, not Zigic -- I'm sorry, just if we're talking
2 about Prcac now, if we're going on the 35, professional police personnel,
3 crime technician, whether or not it's a straight officer may be subject to
4 debate, but part of the police services and, as such, held to high
5 standards of conduct.
6 Looking at the individual acts, one must look to the times at
7 which Prcac was present, what was happening in Omarska. Enormous
8 disappearances, beatings, very serious instances of uncontrolled,
9 uncontained assaults within the camp. And, again, if we look at it from
10 7(3) nothing was done. The protestations that, "I couldn't do anything.
11 I was willing to help Karagic for money but I couldn't help Travancic," it
12 indicates that if there was any type of predilection towards assistance,
13 it was where there was gain for the individual. Reprehensible.
15 The absolute abuse of authority has to be factored into this
16 sentencing. 35 years, if one looks across the board at some of the
17 sentencing of the Tribunal is, I think, it's a modest request. This is a
18 person under whose or on whose watch people disappeared, were sent off to
19 their deaths. People -- there was no regard whatsoever for the welfare of
20 anyone under his care.
21 The -- we also factor in and we must concede that we do not have
22 evidence of direct beating by the individual. That's not there. And that
23 factored in too. Had we had that, assure this Chamber we would have
24 sought a lot more than this also goes for Kvocka. Kvocka, perhaps because
25 of age and perhaps because of some other circumstances and background
1 really lent an energetic participation in -- and an energetic or a wilful
2 blindness towards things that he would have been charged with acted upon.
3 Again, there was no direct evidence of beatings by him or other
4 types of abuse and had we had that, we would have sought sentences
5 commensurate with some of the other sentences in this Tribunal which did
6 not actually apply to people in the superior authority positions.
7 Is the Chamber also asking me about the life sentences or are we
8 just sticking with the 35 years?
9 JUDGE RODRIGUES: [Interpretation] Thank you, Ms. Susan Somers.
10 That answers my question.
11 Let me now turn to the Defence for Mr. Zigic; Mr. Stojanovic, in
13 If I understood correctly, there was a point in your closing
14 argument in which you mentioned the armed conflict and you even said that
15 not only was an armed conflict needed, but a war. I don't know if I
16 understood you properly but if I did, my question would be as follows: As
17 you know, the Chamber had a judicial notice, there was a judicial notice
18 where we took the decision to say that there was, indeed, an armed
19 conflict, that an armed conflict did exist, that it was organised and
20 systematic. So when you developed your ideas in your closing argument,
21 this question of conflict, armed conflict and possibly a war, did you take
22 into consideration the Chamber's decision and the judicial notice or not?
23 MR. STOJANOVIC: [Interpretation] Thank you for your question, Your
24 Honour. This will give me a chance to clarify my thesis, and I dealt with
25 the thesis in my first brief. I think it was a motion for judgement of
1 acquittal, actually, where I did this.
2 Of course I did. I respect and recognise the decision, the
3 ruling, so this is an ascertained fact that an armed conflict did, in
4 fact, exist. However, my standpoint was that for the application of
5 Article 3, we need something more than that. That is to say that we need
6 to prove that it was a specific form of armed conflict which is of a more
7 marked character, and that is war. And this interpretation of mine stems
8 from the interpretation of Article 3 of the Statute wherein in the title
9 itself it says "War, Customs of War," as opposed to all the other articles
10 where all these elements are precisely defined from Article 3, war is
11 interpreted as an armed conflict.
12 Something was said about this in the judgement made in the Tadic
13 case, the appeal there, and that it was a terminological difference and
14 that it was a more modern concept the fact that an armed conflict -- that
15 it is sufficient to say armed conflict and that you needn't say war, use
16 the word "war." But in that first motion of ours, we said that Article 3
17 in fact gives us -- gains it's inspiration from the 1907 Hague Convention
18 where wartime activities are treated, and our other arguments went along
19 the lines of the linguistic and grammatical interpretation of that Article
20 and the interpretation of the contents as they are expressed in Article 3
21 itself. I apologise for speaking too quickly. I will try and slow down.
22 So on the basis of the interpretation of the contents of Article 3
23 as it stands in the text of the Statute itself which indicates that we are
24 dealing with a conflict of greater proportions and there is a difference
25 between war and armed conflict. War necessarily implies that an armed
1 conflict is taking place. However, Judge Wald knows full well, we dealt
2 with questions of this kind with respect to the intervention in Yugoslavia
3 on the part of the United States, that there is a vital difference between
4 an armed conflict and war, and a state of war. The state of war was a
5 condition which would not have given the authority for the continuation of
6 those actions and operations.
7 Therefore, we did, of course, have in mind your decision and
8 ruling and we respect it, but we feel that there should be a closer
9 definition of a conflict, whether in fact it was a war or not. We did
10 not, in fact, state that it was not perhaps a war. What we said was that
11 in the course of the proceedings during the trial, we did not present
12 evidence in that direction, that is to say, evidence which went to prove
13 that it was -- that this state of armed conflict represented an all out
14 war proper as well. Thank you.
15 JUDGE RODRIGUES: [Interpretation] Thank you very much. Yes,
16 Ms. Susan Somers.
17 MS. SOMERS: Thank you very much, Your Honour.
18 If the Chamber would allow me at some point if the Chamber -- if
19 you have finished with my colleague, there were two points I wanted to
20 make sure on the sentencing that I did emphasise, and perhaps they may
21 have gotten lost in a comment about direct participation. So whenever
22 it's convenient, I think it's important that I just re-emphasise those two
23 points for the Chamber.
24 JUDGE RODRIGUES: [Interpretation] Yes. Just a moment, please,
25 we'll deal with that later on.
1 Let me now turn to Mr. Jovan Simic, and I have two questions for
3 You mentioned, Mr. Jovan Simic, Keraterm and Omarska in order to
4 show that there were similar forms of organisations in the two places.
5 Later on, you also mentioned Celebici in order to say that in the texts,
6 the word "camp," "concentration camp," if I understood you correctly, that
7 the word concentration camp was never used.
8 Now, can you tell us from your point of view, from the point of
9 view of the Defence and the transcript, what are the similarities and
10 dissimilarities between the organisation of the three camps, or was it the
11 same thing? Because I think that you mentioned these differences in your
12 written submissions between Keraterm and Omarska, for example and, as you
13 know, it is assumed, you can answer or not, but it is assumed, that at
14 Keraterm, there was a warden, a civilian manager of the prison, the
16 So how do we look at these three localities at the same time,
17 these three camps?
18 MR. J. SIMIC: [Interpretation] Your Honours, essentially there
19 should be no difference. All three camps or investigate centres, whatever
20 you like to call them, basically had the same purpose. The difference
21 that I wished to make was in the organisational sense, that distinction.
22 So two camps which were set up on the Prijedor municipality area which had
23 a similar number of detainees were organised in quite different ways. So
24 that was the parallel I drew.
25 Celebici, when I mentioned Celebici, I mentioned them in the
1 context of the fact that they were termed camps, as we call them here,
2 that is to say, the Prosecution uses the term "camp" rather than
3 "investigation centre," that they weren't treated as concentration camps,
4 and that that is something which this Defence team does not find
6 So if there's no concentration camp in the Celebici case and it is
7 being raised here so we should level it out, and we should unify this
8 because it is impossible for a concentration to have existed in one case
9 and not in another. By virtue of it's essence, a concentration camp would
10 necessarily be intended as in World War II for the annihilation of a
11 group, the Nuremberg process showed. There is no proof to show that they
12 were all temporary provisional ones with a short time span. Perhaps
13 somebody had the idea of persecuting a part of the population, but there
14 is no evidence or proof to show that this served for the liquidation of a
15 certain portion of the population much.
16 That is why I consider, just as Celebici -- were not subjected or
17 treated as being, according to the theory of concentration camps and as
18 concentration camps, there is no reason to treat the two others, the
19 Omarska Investigation Centre or camp and Keraterm.
20 So Your Honours, I just wanted to make an analysis, a comparative
21 analysis and say why we don't consider Omarska to have a deputy because
22 Keraterm didn't either, but that was an organisational matter alone.
23 Thank you.
24 JUDGE RODRIGUES: [Interpretation] I have one more question for
25 you, Mr. Jovan Simic. I apologise for making you stand again.
1 I think that in you are your writings, you made a compare it have
2 analysis between Prosecution witnesses on the one hand with respect to
3 finding of profile, getting a profile of Mr. Kvocka, and you used the
4 Defence witnesses for getting the same result for your client Mr. Prcac.
5 So this is in your written submissions.
6 Today you told us that the result was that Kvocka, how shall I put
7 this, executed tasks which were proper to a uniformed officer in line with
8 those of a uniformed officer, and that Mr. Prcac, how can I say,
9 accomplished tasks that were of an administrative nature, that they were
10 characteristic of an administrative or duty officer.
11 Now, my question is the following: If you had the opportunity of
12 comparing the Prosecution witnesses for Kvocka and the Prosecution
13 witnesses for Prcac, would the conclusions, the results that you obtained
14 be the same or not?
15 MR. J. SIMIC: [Interpretation] Your Honour, I don't think they
16 would be, no. In my closing argument, I quoted the example of what could
17 have been. We claim that the accused Dragoljub Prcac was in the
18 investigation centre working just like any guard who spent most of his
19 time in Room B5 working with the radio communications device, and that
20 sometimes he would do something the investigators asked him to do like
21 read out a list or go and fetch a detainee or something like that.
22 What this Defence team did in its final brief was to try to make a
23 comparative analysis between the so-called alleged two deputy commanders.
24 Now, according to us, these two deputy commanders, if they exist at all,
25 two people doing the same duty, they must have something in common, common
1 denominators, which would show that they were engaged in the same function
2 and that is something that is absent, that is lacking, just not there.
3 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Jovan Simic, I
4 understand your objective full well. I'm asking the question of
5 methodology, the methodology you used. You used the Prosecution witnesses
6 to obtain results with respect to Mr. Kvocka. You used Defence witnesses
7 to obtain a result with respect to Mr. Prcac.
8 Is that what you did or not?
9 MR. J. SIMIC: [Interpretation] No, Your Honour. In both cases, I
10 used, first and foremost -- I just mentioned some of the Defence witnesses
11 because at that point, it seemed to me to be much more important to hear
12 what the victims and witnesses of the Prosecution said. So the
13 comparative analysis was done on the basis of Prosecution witnesses for
14 Kvocka, and how the Prosecution witnesses remember Kvocka and remember
15 Prcac. So it is on the basis of that material, that is to say, the
16 testimony of the witnesses themselves, the Prosecution witnesses
17 themselves, that I engaged in this analysis and there is no similarity
18 there that we're talking about.
19 The Defence witnesses just confirmed what we maintained all along
20 before this Court and in our pre-trial brief and during the trial
21 proceedings that Mr. Prcac was what we claimed him to be, that is to say,
22 that he had no function and that he was not deputy commander of the camp.
23 Actually, we said that he was not in a position to issue orders to
24 punish, that he had no superior authority, and Defence witnesses bore that
25 out. But what was important for us at the time was to make the
1 comparative analysis on the basis of what the Prosecution witnesses said
2 in their testimonies.
3 JUDGE RODRIGUES: [Interpretation] Okay. Thank you very much. I
4 have no further questions for you, Mr. Jovan Simic.
5 I think that Ms. Susan Somers had asked for the floor a moment ago
6 to make one final comment with respect to life sentencing, life
7 imprisonment; is that it?
8 MS. SOMERS: Your Honour, it was pursuant to your question about
9 the 35 year sentences. If the Chamber wishes anything on life, I will,
10 but I don't believe it was asked.
11 On the two sets of factors, the Prosecution factored in very
12 carefully the 7(1) evidence about Kvocka saying to a guard in reference to
13 Witness AK, AJ, Emir Beganovic, "Bring them back afterwards." That's very
14 important to our arriving at our points. And also Kvocka's note about
15 Beganovic, "KOP 2," the predestined or predetermined place to deposit the
17 And we also wanted the Chamber to know the Kvocka record of
18 interview is 3/203 on page 53, the investigator had asked Kvocka, "But in
19 your mind when you were there without Meakic, Mr. Meakic, say, working
20 from 6.00 p.m. or 7.00 p.m. at night or 6.00 a.m. or 7.00 a.m. the next
21 morning who, in your mind, was in charge of the interrogation centre as
22 far as the police and the security were concerned? Answer by Kvocka: "It
23 was considered that that was me and Zeljko told me, Zeljko ordered me to
24 look after things that I have mentioned here."
25 Thank you for giving me the opportunity to allow you to understand
2 MR. K. SIMIC: [Interpretation] Your Honour.
3 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Krstan Simic.
4 MR. K. SIMIC: [Interpretation] I would also like to be allowed to
5 make a comment with respect to what Ms. Somers has said, with your
7 Ms. Somers quoted Witness Mirko Jesic when he says, "When the
8 came, the first thing I see was Komandir Meakic." Your Honours, if there
9 is anything that is not in dispute, it is the assertion -- claims of one
10 and all that Mr. Meakic was the commander of the police station
11 department, and this is the way you address such persons. You address a
12 judge as "Your Honour," "Judge," you address a Colonel as "Colonel." So
13 there's no dilemmas there with the term of reference.
14 As regards the observation made, we have persistently tried, but
15 we have not arrived at an answer to this question whether Mr. Kvocka is
16 being accused and charged as a superior of any kind or is he being treated
17 as a deputy camp commander.
18 The indictment has placed very clear-cut standards on that point.
19 He was a superior, that is to say, all individuals were responsible to
20 him. All individuals in the camp were responsible to him. We quite
21 simply expected from our learned colleague at least today to give us
22 information as to what we are going charged with. Is Mr. Kvocka being
23 charged for being the deputy commander of the police station department
24 and the other one, or were they deputy camp commanders? So I would
25 appreciate clarification. Thank you.
1 JUDGE RODRIGUES: [Interpretation] The Chamber will reply to your
2 question. This is not the moment for the Prosecution to answer that. It
3 is a question of ruling by the Trial Chamber.
4 The Trial Chamber has, shall I use the word, struggled to arrive
5 at this point at the end, and we have truly got there, but a lot of work
6 has been done by you, the parties, the Prosecution and the various Defence
7 counsel. I'm going to mention you because you're present here today, but
8 there are many people who are not present here today and who did a lot of
9 work. I'm thinking about Mr. Niemann, I'm thinking about Ms. Hollis, I'm
10 thinking about Mr. Michael Keegan, and I'm also think of Ann Sutherland,
11 of Piacente, of Stringer, many, many, people who have done a lot of work
12 here. I'm also thinking, for the Defence side, of Mr. Lukic and
13 Mr. Tosic.
14 You will recall that towards the end of January, this Chamber
15 accepted the challenge of taking up this affair. If you will remember, we
16 received it in preparation for the opening; that we held four Status
17 Conferences from the beginning of the 31st of January, and the 28th of
18 February, the Chamber went ahead and opened the trial. And I think that
19 you will remember just how much discussion we had in this courtroom in
20 order to arrive at the conclusion that we must organise ourselves very
21 well to give us enough time for witnesses in the morning and debates and
22 discussions in the afternoons.
23 The fact of having here in the courtroom many legal people,
24 lawyers, counsel, was multiple reasons for satisfaction in our work; on
25 the one part, because we enlarged the scope of our debates and
1 discussions. When one person said yes, the other person would say no, so
2 that placed us in a position where we had to discuss and debate a point.
3 And I think that in a situation of this kind, we were able to come up with
4 better solutions and decisions, because to debate well and to negotiate
5 well gives you good results.
6 I should also like to take advantage of this opportunity to say
7 that we simultaneously were able to work together and to have our
8 professional relationships evolve here and to have many people come here
9 and be heard, and that is why it is on behalf of my colleagues and in my
10 own name, I should like to thank all the people who have contributed to
11 reaching this decisive moment, which is drawing to an end but is not the
12 actual end.
13 It was, at all events, a case, a proceedings, which had given us a
14 great deal of work but a great deal of satisfaction as well, if I may say
15 so, to have arrived at this particular point. Therefore, it is with great
16 pleasure that I can tell you that within the frameworks of Rule 87,
17 "Deliberations," after the closing arguments by the two parties, I can
18 declare the hearing closed. And the Judges are going to retire to
19 deliberate in private.
20 What you are all asking yourselves is when do we meet again. But
21 let me state one point: This Trial Chamber has taken up the challenge of
22 having two cases, two trials, at the same time, two parallel trials, so
23 this means an enormous amount of work. Statistically speaking, he have
24 exceeded what this courtroom could have provided, because we had sessions
25 in the morning and sessions in the afternoon, and one session was one
12 Blank page inserted to ensure pagination corresponds between the French
13 and the English transcripts.
1 complete work form. I think that we shall be able to meet again towards
2 the middle or end of October. This is something that I am able -- the one
3 thing that I am able to promise you is that the Chamber will engage all
4 its resources in order to be ready towards this date. But we shall be
5 confirming the exact date later on, the date that we shall meet again for,
6 if I can put it that way, the final moment for all of us here, for the
7 parties, for us Judges, for the accused as well.
8 So all that remains for me to say today is that we adjourn the
9 meeting. It has been a pleasure working with you all, and we have all
10 learnt a great deal together. So on behalf of my colleagues and myself, I
11 adjourn the meeting.
12 --- Whereupon the hearing adjourned at 1.13 p.m.
13 sine die