1 Tuesday, 23 March 2004
2 [Appeal Proceedings]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 9.40 a.m.
6 JUDGE SHAHABUDDEEN: Good morning. Madam Registrar, will you
7 please call the case next on the list.
8 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honours.
9 This is case number IT-98-30/1-A, the Prosecutor versus Miroslav Kvocka,
10 Mladjo Radic, Zoran Zigic, and Dragoljub Prcac.
11 JUDGE SHAHABUDDEEN: Thank you. Now I must, in the usual way,
12 test the equipment. So, ladies and gentlemen, can you hear me? Firstly,
13 interpreters? Yes.
14 THE INTERPRETER: Yes.
15 JUDGE SHAHABUDDEEN: The appellants. How will we do that?
16 Mr. Simic, you first.
17 MR. K. SIMIC: [Interpretation] Yes, Your Honour.
18 JUDGE SHAHABUDDEEN: Your colleagues. Yes, they hear me. In the
19 Prosecution? Yes. Yes.
20 Now, the appearances for the parties. Will you please tell me
21 who is appearing for whom.
22 MR. K. SIMIC: [Interpretation] Your Honours, good morning. My
23 name is Krstan Simic. I'm appearing on behalf of Miroslav Kvocka.
24 MR. FILA: [Interpretation] Good morning, Your Honour. My name is
25 Toma Fila, defending Mladjo Radic.
1 JUDGE SHAHABUDDEEN: We're not getting the interpretation--
2 THE INTERPRETER: Can you hear interpreting into English? Is
3 there anything on channel 4?
4 JUDGE SHAHABUDDEEN: Yes. Thank you very much.
5 And the third gentleman.
6 MR. J. SIMIC: [Interpretation] Good morning, Your Honour. Jovan
7 Simic, attorney-at-law, appearing for Dragoljub Prcac.
8 MR. STOJANOVIC: [Interpretation] Your Honours, good morning. My
9 name is Slobodan Stojanovic, attorney-at-law from Belgrade, appearing for
10 the accused Zoran Zigic.
11 JUDGE SHAHABUDDEEN: Good. Thank you very much.
12 And now for the Prosecution.
13 MR. CARMONA: Good morning, Your Honours. My name is Anthony
14 Carmona, and I appear on behalf of the Prosecution. Appearing on the
15 Prosecution -- with me is Ms. Norul Rashid, Ms. Helen Brady, Ms. Kelly
16 Howick, and Mr. David Re. Mr. David Re will be conducting the
17 examination of the particular witness on behalf of the Prosecution.
18 Thank you very much.
19 JUDGE SHAHABUDDEEN: Now, good. I propose now to make a brief
20 introductory statement before we proceed with the hearing of the witness
21 in this case. The case before us today is Prosecutor against Miroslav
22 Kvocka, Mladjo Radic, Zoran Zigic, and Dragoljub Prcac.
23 The case at first instance had five co-accused persons. All five
24 were convicted at the close of the trial on 2nd November 2001. One of
25 those convicted, namely, Mr. Kos, filed his notice of appeal on 16th
1 November 2001, but he withdrew it on 21st May 2002, and he was
2 subsequently released by the Tribunal.
3 Now, the Trial Chamber convicted each of the appellants of
4 persecution, murder, and torture, and also the Appellant Zigic of cruel
5 treatment as well. These crimes are recognised in Articles 3 and 5 of
6 the Statute.
7 The appellants filed notices of appeal between 13 and 16 November
8 2001. The Prosecution did not appeal.
9 Now, during the appellate proceedings, four motions were filed
10 pursuant to Rule 115 of the Rules of Procedure and Evidence, seeking to
11 admit additional evidence on appeal. The Appellant Prcac filed his Rule
12 115 motion on 25 February 2003, with an addendum on 10th March 2003. The
13 Appellant Radic filed his Rule 115 motion on 25 February 2003, and an
14 addendum on 2nd March 2003. The Appellant Zigic filed his first Rule 115
15 motion on 22 August 2002, with an addendum on 13 June 2003. He filed a
16 second Rule 115 motion on 11th April 2003, with a supplement on 19th May
18 On 16 February 2004, that is, last month, the Appeals Chamber
19 issued a decision on the Rule 115 motions. It granted only in part the
20 motions filed by the Appellant Zigic, while it dismissed the rest of the
21 submissions by the appellants.
22 Two additional witnesses were ordered by the Appeals Chamber,
23 under Rules 98 and 107 of the Rules of Procedure and Evidence of this
24 Tribunal. They were ordered to appear on the hearing in this appeal
25 scheduled on that day for 23rd March 2004. The Scheduling Order which
1 prescribed that also ordered the Prosecution to file any rebuttal
2 material by 27 February 2004, and the appellant to file -- the appellant
3 to respond to such material by 5 March 2004, and the Prosecution to reply
4 by 10 March 2004.
5 The Prosecution filed its rebuttal material on 27 February 2004.
6 The Appellant Zigic responded on 8 March 2004. Then the Prosecution
7 replied on 11 March 2004. By decision of 12 March 2004, both the
8 Appellant Zigic and the Prosecution were granted extensions of time for
9 the respective filings. The decision of 12 March 2004 also found
10 admissible as rebuttal material the evidence contained in the witness
11 statements submitted by the Prosecution.
12 Now, by order of 26th February 2004, Appeals Chamber directed the
13 Victims and Witness Section to make arrangements for the additional
14 witnesses to appear before the Appeals Chamber today, on 23rd March 2004.
15 According to their information, Witness KV1, that is, one of the
16 two witnesses, was willing to come to testify before the Appeals Chamber,
17 but the other witness was reluctant to do so. A subpoena was issued on
18 11 March 2004 to the second witness. Despite the efforts of the Chamber,
19 it has not been able to secure his appearance today. However, the
20 Appeals Chamber will take appropriate steps to arrange for his testimony
21 to be given, if possible, after the hearings for this week.
22 As the rebuttal evidence is concerned only with the additional
23 evidence to be given by the second additional witness, we will not have
24 any rebuttal witnesses today, but we will have them at a later stage, if
25 and when we can secure the appearance of the second additional witness.
1 For today's evidentiary hearing, there is, therefore, only Witness KV1 to
2 be heard by this Chamber.
3 Pursuant to the Scheduling Order of 19 March 2004, as amended by
4 the Scheduling Order of 22 March 2004, the Appeals Chamber will first
5 direct questions to Witness KV1. Following the questioning by the
6 Chamber, the Appellant Zigic and the Prosecution will have 30 minutes to
7 examine the witness. Of course, the Judges will also ask questions.
8 The Appellant Zigic and the Prosecution are reminded that this is
9 not a new trial. Further, I would remind them that they will be given an
10 opportunity to present arguments on the weight and credibility of the
11 evidence given today by Witness KV1 in the course of their final
13 Finally, the parties are reminded that they are not allowed to
14 contact the witness out of court at any time during his testimony.
15 Unless there are any questions, we will now proceed.
16 [The witness entered court]
17 JUDGE SHAHABUDDEEN: Good morning, Witness. Can you hear me?
18 THE WITNESS: [Interpretation] Yes.
19 JUDGE SHAHABUDDEEN: Now, could you please read the solemn
20 declaration which will be given to you by the usher.
21 WITNESS: WITNESS KV1
22 [Witness answered through interpreter]
23 THE WITNESS: [Interpretation] I solemnly declare that I will
24 speak the truth, the whole truth, and nothing but the truth.
25 JUDGE SHAHABUDDEEN: Thank you very much. You may sit down.
1 Now, I should explain that by order dated 18th March 2004, this
2 witness was granted the pseudonym of KV1, as well as facial distortion.
3 I would remind all parties to use this pseudonym at all times during this
4 hearing, and since I'm prone, first of all, to forget that Rule, I remind
5 myself also of it. If there is any accident, then the registrar will
6 please draw that to our notice so that we may make an immediate
7 correction of the text.
8 Well, now, Madam Registrar, will you please show the witness his
9 name and his date of birth on a piece of paper. I believe you have
10 already shown it to the parties.
11 THE REGISTRAR: Yes, Your Honour.
12 THE WITNESS: [Interpretation] That's it.
13 JUDGE SHAHABUDDEEN: We are concerned to protect your identity,
14 and therefore, we will refer to you throughout as Witness KV1.
15 Now, I will begin the questioning. My colleagues on the Bench
16 will join in, and the parties will also ask you questions.
17 Questioned by the Court:
18 JUDGE SHAHABUDDEEN: Now, you are from where, Witness?
19 A. I am from Prijedor. I was born in Kljuc, but I lived in
21 JUDGE SHAHABUDDEEN: Now, did you know a man by the name of Drago
23 A. Do you mean Drago Tokmandzic?
24 JUDGE SHAHABUDDEEN: That's correct. Do forgive me for my
25 execrable pronunciation. It is to that gentleman that I'm referring. Is
1 he still alive or has he passed away?
2 A. He has passed away.
3 JUDGE SHAHABUDDEEN: Now, we want you to help us to understand
4 the circumstances in which he passed away. Can you remember when, about
5 when he passed away?
6 A. I cannot remember the exact date, but I know that he died in
8 JUDGE SHAHABUDDEEN: Keraterm was what at the time?
9 A. It was a camp in Prijedor.
10 JUDGE SHAHABUDDEEN: Were you there?
11 A. Yes.
12 JUDGE SHAHABUDDEEN: As what were you there?
13 A. I was a detainee, a prisoner there.
14 JUDGE SHAHABUDDEEN: And you arrived there when? Can you tell?
15 A. On 31st of May, or was it April? I'm not quite sure any more.
16 JUDGE SHAHABUDDEEN: And when, or about when, did you leave?
17 A. On the 5th of August, precisely.
18 JUDGE SHAHABUDDEEN: Now, where did you stay in the camp?
19 A. At the outset, I was in room number 2, then in room number 1, and
20 then I spent the bulk of my time in room number 4.
21 JUDGE SHAHABUDDEEN: Could you help us to understand how the
22 rooms were situated. Were there a number of rooms in the same building?
23 A. There were four rooms.
24 JUDGE SHAHABUDDEEN: 1, 2, 3, and 4.
25 A. Yes.
1 JUDGE SHAHABUDDEEN: Now, you told us where you were. And where
2 was Tokmadzic?
3 A. Mr. Tokmadzic, when he was brought there, was immediately put in
4 room number 4.
5 JUDGE SHAHABUDDEEN: Now, you said, I think, that you remembered
6 his passing away. Could you tell the Chamber what you recall about that,
7 in your own words.
8 A. That evening, Banovic, together with Keli - I know that - called
9 out Tokmadzic's name, Islamovic, Kljaic, Mesic. I can't remember all of
10 those whose names were called out, but I know there were quite a few of
11 them. They were taken outside. They were beaten up. After some time,
12 some of them were brought back. Drago Tokmadzic was already dead when
13 they threw him back into the room.
14 JUDGE SHAHABUDDEEN: Now, from where you were in your room, to
15 where this beating happened, could you tell us what the distance was.
16 A. A few metres.
17 JUDGE SHAHABUDDEEN: Did you hear any voices during the beating?
18 A. Yes.
19 JUDGE SHAHABUDDEEN: Were you able to identify these voices?
20 A. Yes. That of Banovic and Keli. I'm sure I also heard Goran
22 JUDGE SHAHABUDDEEN: Did you hear any other voices?
23 A. There were many sounds, and there may have been some that I
24 didn't register. But I did register the ones that were familiar to me.
25 JUDGE SHAHABUDDEEN: Now, did you hear any reference to a pig?
1 Did anybody use the word "pig"?
2 A. I don't remember that. I can't recall.
3 JUDGE SHAHABUDDEEN: Did anybody use the words "finish him off"?
4 A. I don't know that either.
5 JUDGE SHAHABUDDEEN: Did you see a man called Edin Ganic?
6 A. Not at that time.
7 JUDGE SHAHABUDDEEN: Was he a prisoner in the camp?
8 A. I can't recall, but I'm sure he wasn't in my room, number 4.
9 JUDGE SHAHABUDDEEN: Now, in your room, there were some other
10 people. Were there some people from Puharska?
11 A. Yes.
12 JUDGE SHAHABUDDEEN: I may not be pronouncing the word correctly.
13 A. Yes. Yes, there were. Most of them were from Puharska.
14 JUDGE SHAHABUDDEEN: Now, did you hear a vehicle arriving?
15 A. No, although vehicles did frequently arrive, but I'm not sure.
16 JUDGE SHAHABUDDEEN: Did you hear these people from Puharska
17 saying anything about who was coming?
18 A. The only thing I remember is I know that when Kajin arrived, then
19 the beatings would stop. He probably didn't permit that.
20 JUDGE SHAHABUDDEEN: Now, I would invite you to look at a piece
21 of paper. It has a name on it. That is a name of a protected witness.
22 I just want you to look at the paper and to tell the Court if you knew
23 that this man was also a prisoner in the camp. Don't call his name,
25 A. I remember the last name. I'm not sure about his first name,
2 JUDGE SHAHABUDDEEN: Will the usher please show the gentlemen at
3 the bar.
4 A. Yes, he was there.
5 [Appeals Chamber and registrar confer]
6 JUDGE SHAHABUDDEEN: So you say that Witness Y was also a
7 prisoner in the camp?
8 A. I'm not saying precisely that he was in that room. I know there
9 was someone of that last name there, but I cannot confirm the first name.
10 JUDGE SHAHABUDDEEN: Okay. Fine. Thank you. Now, one last
11 question, or set of questions. Did you know a man by the name of Zoran
13 A. Yes, I did.
14 JUDGE SHAHABUDDEEN: Now, did you see him during your stay in the
16 A. Yes, I did.
17 JUDGE SHAHABUDDEEN: Did you see him at the time when Tokmadzic
18 was killed?
19 A. I really didn't see him on that day.
20 JUDGE SHAHABUDDEEN: If you saw him now, would you recognise him?
21 I'm talking about Mr. Zigic.
22 A. Yes.
23 JUDGE SHAHABUDDEEN: Have you seen him recently anywhere?
24 A. Well, not until just a little while ago.
25 JUDGE SHAHABUDDEEN: So you saw him a little while ago. Where is
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
2 A. Here, to my left side, in the first row, between those two
4 JUDGE SHAHABUDDEEN: Thank you very much. Thank you.
5 My colleagues will ask you some questions.
6 JUDGE POCAR: Just a couple of clarifications, Witness KV1. In
7 answering to the Presiding Judge, you said that when the beating of
8 Mr. Tokmadzic occurred, you heard a number of voices. Among them, you
9 mentioned the voice of Mr. Lajic; is that correct?
10 A. Yes.
11 JUDGE POCAR: Well, can you tell us whether, from the voice, from
12 his voice, you can assess that he was actually beating Mr. Tokmadzic?
13 A. I don't know who was beating who that night, but I did hear his
14 voice. There were several people outside who were beaten up.
15 JUDGE POCAR: So you cannot say whether he personally was
17 A. No.
18 JUDGE POCAR: I thank you. That's all I wanted to know.
19 JUDGE SHAHABUDDEEN: Judge Guney. Judge Guney will ask some
21 JUDGE GUNEY: [Interpretation] Witness, you've spoke of many
22 beatings, and you heard in the course the voice of Ganic. Could you tell
23 us: What was the role played by Mr. Ganic, if you could make it out, of
24 course, in those beatings?
25 A. I spoke about Goran Lajic, that I heard his voice, not the voice
1 of Ganic.
2 JUDGE GUNEY: [Interpretation] Yes. But given that you've just
3 told us that you had known him for a period of time - I'm talking of
4 Zoran Zigic - did you hear the voice of Mr. Zoran Zigic in the course of
5 the beatings?
6 A. No.
7 JUDGE GUNEY: [Interpretation] In what state was the corpse of
8 Mr. Tokmadzic when it was thrown into your room?
9 A. He was dead. It was dark. We couldn't really get a good look at
10 him. But I do know that he was dead.
11 JUDGE GUNEY: [Interpretation] Did you notice traces of torture,
12 beatings, even if it was dark?
13 A. Not at that time. We couldn't see anything. We just realised
14 that he wasn't breathing, that he was no longer living. That's all.
15 JUDGE GUNEY: Thank you, Witness KV1.
16 JUDGE SHAHABUDDEEN: Judge Weinberg de Roca will ask some
17 questions now.
18 JUDGE WEINBERG DE ROCA: Thank you. I have a few questions. Who
19 called on that -- the detainees that were then later beaten?
20 A. Banovic and Keli.
21 JUDGE WEINBERG DE ROCA: Did you -- how many people were called?
22 A. I can't remember the exact number. There were quite a few of
23 them. I know that Tokmadzic and Eso -- the policeman who was brought in
24 with him, and Lajic and Mesic, and an Albanian. Their names were called
25 out. The Albanian died seven days later.
1 JUDGE WEINBERG DE ROCA: And do you know how many people were
2 beating these detainees, or did you only hear the voices?
3 A. I don't know how many people were beating the prisoners, but I
4 heard the voices that I was able to recognise.
5 JUDGE WEINBERG DE ROCA: You recognised all the voices, or only
6 some of them?
7 A. I recognised only those three voices that I'm talking about.
8 JUDGE WEINBERG DE ROCA: But were there or -- were there more
9 people beating the detainees, and you recognised three voices, or do you
10 think it was only those three that were beating the prisoners?
11 A. I think there were more people beating the prisoners.
12 JUDGE WEINBERG DE ROCA: Did you recognise voices and sounds or
13 did you also recognise what was being said, or was it just the sound you
14 heard but not the exact words?
15 A. I couldn't repeat the exact words. They were curses and cries
16 like "hit him," and things like that.
17 JUDGE WEINBERG DE ROCA: Thank you very much. That's all.
18 JUDGE SHAHABUDDEEN: Though this witness is a witness of the
19 Appeals Chamber, the witness has really been called at the request of
20 Mr. Zigic. So would counsel for Mr. Zigic wish to ask any questions at
21 this stage?
22 MR. STOJANOVIC: [Interpretation] Your Honour, thank you. I am
23 grateful that after this exhaustive questioning by the Trial Chamber, I
24 have only a few questions left to put to this witness.
25 Examined by Mr. Stojanovic:
1 Q. [Interpretation] Good day, Mr. KV1. There is only one detail I
2 would like to clarify. Do you remember how Drago Tokmadzic was dressed
3 in Keraterm?
4 A. He was wearing a light-blue police shirt.
5 Q. Was he brought in wearing that shirt?
6 A. Yes, he was.
7 Q. Was this, in fact, the police uniform?
8 A. Yes, it was.
9 Q. Was this the kind of uniform then also worn by members of the
10 Serb police?
11 A. This was the uniform of the police of the former Yugoslavia.
12 Q. At that time, the part of the police we might term the Serb
13 police, after the well-known events in Prijedor, did the policemen who
14 remained in the service of the Serbian authorities there wear the same
16 A. Yes, they did.
17 MR. STOJANOVIC: [Interpretation] I have no further questions for
18 this witness. Thank you.
19 JUDGE SHAHABUDDEEN: Thank you. Thank you, Counsel. May I turn
20 to the Prosecution.
21 THE INTERPRETER: Microphone for the Presiding Judge.
22 JUDGE SHAHABUDDEEN: May I turn to the Prosecution now.
23 MR. RE: Thank you, Your Honours.
24 Examined by Mr. Re:
25 Q. Witness, this room that you were in, room 4, on that particular
1 night, how many people do you estimate were in that room on that night?
2 A. On that night, there were between 260 and 280.
3 Q. Was there a door from that room which went directly out onto the
4 outside area of the camp?
5 A. Yes.
6 Q. What sort of door was it? Was it a door with grills on it, an
7 open door you could see through, or a closed door?
8 A. It was a metal door, and you could see what was directly in front
9 of the door.
10 Q. Where were you in relation to that door when you heard the sounds
11 of beating outside?
12 A. I was beside the door. There was a little wall there on both
13 sides of the entrance to the room. I was next to the wall that is closer
14 to room number 3.
15 Q. How many people do you estimate were between you and the door?
16 A. Between me and the door, there were some 10 or 15 or perhaps even
17 20 people. Some of them were right next to the door itself.
18 Q. And there were also windows to the outside, weren't there?
19 A. Yes. Yes, that's right.
20 Q. Were you able to see out that night to where the beating was
21 occurring, from where you were inside?
22 A. No. The windows were very high up, so you couldn't see out of
24 Q. Do you remember whether there was a barrel containing water
25 outside, near room 4, near the door to room 4?
1 A. There were two barrels.
2 Q. Did they contain water?
3 A. Yes.
4 Q. Would it be accurate to say that they contained maybe 50 to 100
5 litres of water?
6 A. Two barrels of 200 litres each.
7 Q. Did the guards use these barrels of water outside the door to
8 assault or torture the prisoners or detainees?
9 A. I don't remember. I don't know.
10 Q. Do you remember, on the night in which Drago Tokmadzic was called
11 out, hearing the sounds of splashing or people using those barrels of
13 A. No, I don't remember that.
14 Q. The place from where you heard the sounds of beating outside the
15 door, do you think it was on the grass or the concrete?
16 A. The place where the beatings happened?
17 Q. Yes. Where you heard Drago Tokmadzic being beaten. Do you think
18 it was on the grass or the concrete, based upon the sounds you heard and
19 the distance between the door and the concrete?
20 A. I can't say whether he was beaten on the grass or on the
21 concrete, because both the grass and the concrete were very close by.
22 There were many voices, moans, a lot of noise, and you couldn't really
23 gather something like that.
24 Q. And was it apparent to you that more than one person was being
25 beaten outside the door, from the sounds you heard?
1 A. Certainly, yes.
2 Q. In response to a question from Judge Weinberg de Roca, you
3 mentioned a person called Eso in that room. Was that Esad Islamovic?
4 A. Yes.
5 Q. Did he survive that night?
6 A. He did.
7 Q. Was there a person in the room or at the camp you knew called
8 Jovo, Jovo Radocac or Radocaj? Forgive my pronunciation.
9 A. After this beating he was thrown into the room. He was stabbed
10 with a knife. He died a little later inside the room.
11 Q. I'll just take you back a step. Firstly, the person Jovo,
12 Jovo -- was it R-a-d-o-c, with an accent, a-j? Is that the spelling of
13 his name?
14 A. I think so, yes.
15 Q. You said after the beating, he was thrown in the room and he
16 had -- or the translation says he was stabbed with a knife. I'll take
17 you back. Was he one of the people called out from your room, or was he
18 in another room that night?
19 A. He was not in the room. He wasn't in any of the rooms, actually.
20 I think that on that occasion, he had been brought from elsewhere, from
21 some house, say.
22 Q. And just to clarify your earlier answer about him being stabbed
23 with a knife: Are you saying that he had been stabbed with a knife
24 before he was thrown back into the room, or thrown into the room? I'm
1 A. Yes.
2 MR. STOJANOVIC: [Interpretation] Your Honours, we object. We
3 believe that this examination has gone beyond the scope of what should be
4 the subject matter.
5 [Appeals Chamber confers]
6 JUDGE SHAHABUDDEEN: Yes. Mr. Stojanovic, the Bench has
7 considered your motion, but refuses it at this time.
8 MR. RE:
9 Q. Was Mr. -- was Jovo thrown back into the room at the same time as
10 Drago Tokmadzic, or at a different time that night?
11 A. The interval between these two events was short, a couple of
12 minutes, perhaps.
13 Q. I want to ask you about times, and I appreciate it's been a very
14 long time. I want you to estimate for the Appeals Chamber, as best as
15 you can, about what time you think Mr. Tokmadzic was called from the
17 A. It's very difficult to say. It was night-time. That means after
18 10.00 p.m.
19 Q. Was he immediately beaten or did you immediately hear the sounds
20 of beating outside your door just after he had been called out by
22 A. Not immediately. It took them some time to round up the others
23 and to line them up, and then the whole thing started. How exactly it
24 started, I don't know, but it seems to me that all of them were beating
25 everybody at the same time, and there were several of them involved.
1 Q. How long did this beating continue for, the one that you could
2 hear outside your window -- or outside the door?
3 A. I don't know exactly. 10, 15, 20 minutes.
4 Q. Could it have been longer than that?
5 A. Well, to me, it seemed like it was the whole night.
6 Q. And after the beating, did the voices go away and the sounds
8 A. Yes. Everything died down --
9 Q. And was it --
10 A. -- suddenly.
11 Q. Suddenly. And was it sometime later that Drago Tokmadzic's body
12 was brought back into the room?
13 A. Yes. After that beating, they threw him inside and in the same
14 way they threw Jovo inside as well, and a bit later, everything was
15 still. Everything was quiet until the next morning.
16 Q. Can you say whether it was the guards who brought his body back
17 into the room or whether prisoners in the room were asked to go out and
18 bring the body back in?
19 A. I think two prisoners holding the bodies of Drago Tokmadzic.
20 Q. Are you saying that the guards came and asked the prisoners to
21 come outside and bring the bodies back in?
22 A. Yes. They stood in the doorway and asked two men to come out. I
23 think it was the way it happened. It was a long time ago, and I don't
24 have a clear recollection of it any more.
25 Q. When Drago Tokmadzic was taken out, you said that you were near
1 the front, I think you said there were a number of people between you and
2 the door, but you were near the wall and the door to the outside. Where
3 were you by the time Drago Tokmadzic was brought back in? Were you still
4 in that spot or had you moved to another one in the room?
5 A. I was in the same spot.
6 Q. Where or how -- I'm sorry. I withdraw that. Were you one of the
7 people who removed Drago Tokmadzic's body from the room the next day?
8 A. Yes, I was.
9 Q. Where did you take it to?
10 A. He was taken upstairs, above room number 4, to the perimeter,
11 where the waste dump was. There were some pallets there and we laid him
12 on the pallets. I don't remember the other person who was doing the
13 carrying with me. I've already been asked that question, but I can't
14 remember the other man who was carrying the body.
15 Q. The translation reads he was taken upstairs, above room 4. Are
16 you saying in the building and into the perimeter of the building, or are
17 you talking about outside somewhere?
18 A. No, no. It was outside. You see, where room 4 is, then after
19 that is the end of the area, the red area, which is fenced in, and then
20 there is an area covered with grass, also fenced in. And we put him
21 outside, on the other side of the fence.
22 Q. Approximately how far is that from -- I'm sorry. I withdraw that
23 question. Was that a place where bodies of the deceased prisoners were
24 regularly taken to, that same spot you've just talked about?
25 A. Yes, that was the spot.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Q. And approximately how far is that in metres, doing your best,
2 from the door of room 4? 10, 20, 30, 40, 50, 60, 100, whatever.
3 A. 30 to 40 metres, thereabouts.
4 Q. Was that an area described by the other prisoners as the end of
5 the camp?
6 A. Precisely.
7 Q. Would you necessarily have been able to hear the sounds of people
8 at night in that particular area from where you were in room 4?
9 A. From that place, you can hear. It's not far away.
10 Q. Do you remember whether you heard any sounds coming from that
11 area that night?
12 A. Well, it's not exactly the same spot that you're asking me about
13 now. It's the last room in the row in Keraterm, and we carried the body
14 a bit beyond that room, towards the asphalt road. There is a spot where
15 some pallets are lying, and that's where we put the body.
16 Q. How far is that particular place from the door of room 4?
17 A. Well, some 40 metres or so.
18 Q. Would you agree that if you were inside a room with many, many
19 other people, and there were sounds coming from a distance outside, maybe
20 a distance of 30 or 40 metres, it's difficult to identify precisely where
21 the sound is coming from?
22 JUDGE SHAHABUDDEEN: Yes, Mr. Stojanovic.
23 MR. STOJANOVIC: [Interpretation] Your Honour, I believe that this
24 is not only a repetition of a previous question; it is an attempt to
25 confuse the witness, an attempt to replace one thing with another. The
1 witness had described a place just outside room number 4, where Drago
2 Tokmadzic was beaten, and then a completely different place where his
3 body was taken, near a waste dump. The Prosecutor is trying to swap
4 these two places in his examination, and to insinuate that Drago
5 Tokmadzic was beaten in the more distant place, which was 40 metres away
6 from room number 4. It is a different place. The day after, his body
7 was probably taken yet further, to a cemetery, but that's no reason to
8 question this witness about it. I don't think his attempt to confuse the
9 witness is fair.
10 JUDGE SHAHABUDDEEN: The Prosecutor, would you make haste at this
11 point. Mr. Stojanovic's objection takes me to the schedule of our
12 hearings, and you were -- the Prosecution was given 30 minutes. And
13 maybe if you adhered to that timetable, then we wouldn't have any more
14 objections of the nature made by Mr. Stojanovic. Would you --
15 MR. RE: Your Honour, might I address the objection. I'm putting
16 to this witness the evidence of Witness -- of Edin Ganic. I am -- the
17 Prosecution is not tied to a beating, the death of Mr. Tokmadzic, outside
18 that door.
19 JUDGE SHAHABUDDEEN: I understand.
20 MR. RE: Mr. Ganic's evidence is different and I am putting a
21 different scenario to this witness.
22 JUDGE SHAHABUDDEEN: I understand, Counsel. What I was reminding
23 you of were the imperatives of the schedule before us.
24 MR. RE: Your Honour, I asked a question about the possibility of
25 this witness being able to identify where sounds are coming from, which
1 is consistent with the evidence heard at trial of Edin Ganic. I didn't
2 get an answer to that question. Twice. I'm trying to get an answer from
3 the question. Can I put the question again?
4 JUDGE SHAHABUDDEEN: Yes.
5 MR. RE: Thank you, Your Honour.
6 JUDGE SHAHABUDDEEN: Please proceed quickly. Thank you.
7 MR. RE:
8 Q. Witness KV1, did you understand my question? My question is if
9 you are inside a building with many other people present, at night, you
10 would agree that it would be difficult for you to ascertain exactly where
11 sounds are coming from, if they may be coming from a place maybe 30 or 40
12 metres away?
13 A. I agree that that is correct, although we were dead silent, all
14 of us in the room. And what I said did not apply to those who were at a
15 distance. It applied to only those that I heard.
16 Q. What I'm asking you is: Do you remember on that night hearing
17 sounds that may have been coming from, say, 30 or 40 metres away? The
18 question is: Do you remember?
19 A. I do not remember more remote sounds. I only remember the sounds
20 just outside the room, the racket that was not more than four or five
21 metres away from me.
22 Q. Were you aware of a person -- did you know a person who was a
23 teacher from Kozarac?
24 A. I knew a man named Maroslic. Was it Maroslic? I can't remember.
25 Q. Was there a teacher from Kozarac who was also taken out that
1 night and beaten?
2 A. That, I really don't know. But that teacher was in room number
3 2, I think.
4 Q. Is it possible there was a time period between when the sounds of
5 beating stopped outside your door and Drago Tokmadzic was brought back
7 A. Could you repeat this question, please.
8 Q. You heard the sounds of beating outside your door, and everything
9 went silent. Was there a time period, a period of time between when the
10 sounds stopped and when he was brought back in?
11 A. They brought him back into the room at the very end of this
12 incident, perhaps just moments before everything went silent.
13 Q. Are you able to say approximately what time he was brought back
14 in? 10.30, 11.00, 11.30, 12.00, 12.30, 1.00, whatever.
15 A. I already mentioned that I can't tell you exactly how much time
16 passed. To me, it seemed horribly a long time.
17 Q. I just want to show you an exhibit from trial. It is Exhibit
18 327. It is a photograph.
19 MR. RE: Can the witness be shown this photograph. I have
20 copies for my colleagues and the Bench.
21 Q. While it's being done, Witness KV1, you wouldn't have known -- or
22 you wouldn't have been able to see someone being taken out from room 1
23 from where you were, would you?
24 A. No.
25 Q. I just want you to get a pen and look at that particular exhibit.
1 And I want you to draw an arrow from the sky down to where room 1 was.
2 Can you just turn to your right. Draw an arrow from the top -- from the
3 sky. Can you please draw on it with the pen.
4 A. [Marks]
5 Q. Can you please just mark a "1" above that.
6 A. [Marks]
7 Q. Can you please draw the arrow all the way down to room number 1,
8 to where the door of room number 1 was.
9 A. [Marks]
10 Q. I want you to do the same with room number 4, please, that is, an
11 arrow right down to the -- from the sky right down to the door, with a
12 "4" above the top of it.
13 JUDGE SHAHABUDDEEN: Yes, Mr. Stojanovic.
14 MR. STOJANOVIC: [Interpretation] Your Honours, the Prosecution
15 has available to them much clearer photographs which it has shown to
16 other witnesses. In this photograph, even I, who has visited Keraterm
17 many times, find it difficult to distinguish where room number 4 is. I
18 believe this exhibit was intentionally chosen as one of the least
19 advantageous for identification. I know the Prosecution disposes of many
20 others depicting room 4 much more clearly. I don't know what this is
21 supposed to lead to.
22 [Appeals Chamber confers]
23 JUDGE SHAHABUDDEEN: Well, Mr. Stojanovic, the Bench considers
24 that the point had better be kept by you in reserve for when you address
25 us on the weight of the evidence and on the inferences which could safely
1 be drawn from it.
2 MR. RE: Yes. I'll certainly ask my friend to withdraw his
3 insinuation we're choosing exhibits which are least advantageous for
4 identification; this is the best we can find. And he'll do so in his
5 submissions, I'm sure.
6 Q. Witness, could you please draw a "4" on the line you've drawn on
7 that to show it's room 4.
8 A. [Marks]
9 Q. Thank you. And finally, I want you to mark an "X" on the spot
10 outside room 4 from where you heard the sounds of beating.
11 A. [Marks]
12 Q. I'm not quite sure we can clearly see that "X." Can you make it
13 a little larger, please, or maybe use a different coloured pen.
14 A. [Marks]
15 Q. Can you also put an arrow on that in the direction of the --
16 pointing in the direction of the garbage dump, the end of the camp, where
17 the bodies were taken to. Well, firstly I should ask you: Can you see
18 that particular spot on this photograph?
19 A. No.
20 Q. Please mark an arrow pointing in the direction of the garbage
22 A. [Marks]
23 Q. And to be clear, you said that was I think 30 or 40 metres from
24 room -- the doorway to room 4.
25 A. Yes.
1 MR. RE: Might that be received into evidence, please, Your
2 Honours, as an exhibit on appeal.
3 THE REGISTRAR: For the record, the first photo will be marked
4 PA1, and the second photo that had been marked by the witness is PA1 bis.
5 MR. RE: That completes my cross-examination.
6 JUDGE SHAHABUDDEEN: Yes. Mr. Stojanovic, the Bench will afford
7 you the opportunity to ask any clarifying questions directed to anything
8 new that the Prosecution might have elicited.
9 MR. STOJANOVIC: [Interpretation] Your Honours, I believe we would
10 only be wasting more time. My objections, however, stand, particularly
11 with regard to the photograph, and I would like to say a few words about
12 that at the end, as you instructed. I have no other questions. Thank
14 [Appeals Chamber confers]
15 JUDGE SHAHABUDDEEN: Gentlemen, I don't -- I think that concludes
16 the examination of the testimony of this witness. If it, pleases you,
17 and there are no serious objections, we think it would be convenient to
18 reserve the addresses of the parties on the evidence for the conclusion
19 of the entire appeal.
20 [Appeals Chamber confers]
21 JUDGE SHAHABUDDEEN: We think it may be convenient now to take
22 the adjournment, unless there are any questions from the Bench. There
23 are no questions from the Bench. We will take an adjournment of 30
24 minutes. We will suspend, and then we will come back for the --
25 [Appeals Chamber confers]
1 JUDGE SHAHABUDDEEN: Yes. I'm reminded by my colleague on my
2 right that the witness might be excused at this point.
3 All right. Well, Judge Guney -- Mr. Usher, will you keep the
4 apparatus on. Judge Guney has a question to ask the witness, and it will
5 be convenient to have this question put before the witness leaves us.
6 Judge Guney.
7 Questioned by the Court:
8 JUDGE GUNEY: [Interpretation] Witness, I have already asked you a
9 question concerning the corpse of that man. I asked in which state it
10 was, the corpse of Mr. Tokmadzic, when it was brought back to room number
11 4. And you replied by saying that the lighting was too poor for you to
12 see. And the next day, considering that you were one of the two men who
13 hold the body outside from that room, can you tell me, did you see then
14 in which state the body was. Were there any signs of injuries, torture,
16 A. There were traces of injuries. We didn't really inspect him
17 carefully. We just had to carry him away, because he was dead. We
18 weren't interested in inspecting his injuries.
19 JUDGE GUNEY: [Interpretation] And while carrying him, you did not
20 observe nothing beyond what is normal? Nothing struck you in particular?
21 A. There were no large wounds on his body. You could see traces of
22 a beating, but I will say again: We didn't really inspect him. We --
23 it's not a nice thing to look at a dead body, so we averted our gaze as
24 we carried him along.
25 JUDGE GUNEY: [Interpretation] Thank you.
1 JUDGE SHAHABUDDEEN: Thank you very much, Witness KV1. It was
2 very good of you to come.
3 Mr. Usher, will you see that the witness takes his leave.
4 [The witness withdrew]
5 JUDGE SHAHABUDDEEN: Well, we're a few minutes ahead of time, but
6 this might be a convenient stage at which to take the usual break. So I
7 would ask that we suspend the proceedings for 30 minutes. Thank you.
8 --- Recess taken at 11.06 a.m.
9 --- On resuming at 11.41 a.m.
10 JUDGE SHAHABUDDEEN: Thank you, gentlemen, ladies and gentlemen.
11 I understand from the registrar that there is a technical problem
12 relating to the numbering of two exhibits which were introduced this
13 morning. Madam Registrar, what would you like to do?
14 THE REGISTRAR: Thank you, Your Honour. I would like to let the
15 parties know the exhibit number and the confidentiality. The first
16 exhibit, it's a Chamber exhibit, which is CA1, is Witness KV1's
17 particulars. This exhibit is under seal. The second Chamber exhibit is
18 CA2, and that is Witness Y's particulars, and that also is under seal.
19 Thank you, Your Honour.
20 JUDGE SHAHABUDDEEN: Yes. Thank you very much, Madam Registrar.
21 If there are no objections, it is so ordered.
22 Then we come now to the hearing of appeals, but I understood that
23 the Prosecution wanted to say a word. Yes, please, Mr. Carmona.
24 MR. CARMONA: Your Honours, I just wish to indicate that in
25 indicating this morning the complement of the Prosecution, I was remiss
1 in not mentioning our diligent case manager, Ms. Lourdes Galicia. And
2 secondly, as a courtesy, I should indicate to the Court, to the learned
3 Chamber, that Mr. David Re, who conducted the examination of the witness,
4 will not be here this afternoon with us. Thank you.
5 JUDGE SHAHABUDDEEN: Thank you. Then we proceed now with the
6 hearing of the final oral arguments of the parties. I take it that the
7 address system is working and that there's no need to ask whether
8 proceedings are being heard by the interpreters, by the appellants, by
9 the accused, the appellants, or by the Prosecution, and that the
10 appearances now are as they were earlier this morning.
11 Now, the evidential portion of this hearing took place this
12 morning, when one witness testified. I simply confirm that the relevant
13 parties will be at liberty to address the Appeals Chamber on that
14 evidence and its proper evaluation at the relevant time in the course of
15 these arguments.
16 Now, in its judgement rendered on 2nd November 2001, the Trial
17 Chamber convicted the appellants for persecutions, murder, torture, or
18 cruel treatment, all being crimes recognised by Article 3 or Article 5 of
19 the Statute. The Trial Chamber sentenced the Appellant Kvocka to seven
20 years' imprisonment, the Appellant Prcac to five years' imprisonment, the
21 Appellant Radic to 20 years' imprisonment, and the Appellant Zigic to 25
22 years' imprisonment.
23 The appellants filed their notices of appeal against the trial
24 judgement between the 13th and the 16th of November, 2001. That is a
25 little over three years ago. The Prosecution did not appeal. All four
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 appellants share a common ground of appeal concerning the doctrine of
2 joint criminal enterprise. Their individual grounds of appeal are
3 briefly summarised as follows, and I warn the Bench that I'm not being
4 exhaustive or detailed at this stage.
5 The appellant Mr. Kvocka alleges that the Trial Chamber erred in
6 admitting the transcript of his interviews in finding him to be the
7 deputy commander at Omarska, in finding him to be guilty of persecutions
8 and the crimes of murder and torture, and in ignoring two mitigating
9 factors in determining his sentence.
10 The appellant Mr. Prcac argues that the Trial Chamber should have
11 acquitted him, having accepted his arguments in total; that the Trial
12 Chamber erred in convicting him on the fact that was not pleaded in the
13 indictment and committed errors of fact and law in respect of his role at
14 Omarska; that the Trial Chamber did not explain the credibility of
15 certain witnesses; that the Trial Chamber denied him a fair trial in
16 relation to the cross-examination of ten witnesses; and that the Trial
17 Chamber did not consider certain mitigating facts in determining his
19 The appellant Mr. Radic alleges that the Trial Chamber denied him
20 a fair trial by failing to assess his responsibility for acts or
21 incidents detailed in the confidential schedules attached to the
22 indictment; that the Trial Chamber erred in finding that he had a
23 discriminatory intent, without proof of it; that the Trial Chamber erred
24 in finding that there was sufficient evidence to corroborate his guilt
25 for maltreatment in the camp; and that the Trial Chamber gave him too
1 severe a sentence, which is disproportionate to his position and
2 inconsistent with the ICTY sentencing practice.
3 The appellant Mr. Zigic contends that the Trial Chamber erred in
4 finding him responsible for murders at the Omarska camp, murders of
5 specific individual detainees, torture, and certain beatings. He submits
6 further that the Trial Chamber erred in relying on evidence of a pattern
7 of conduct which was unfounded; in failing to provide a reasoned opinion
8 for his conviction for persecutions; and in failing to consider
9 mitigating facts in relation to his sentence. He also claims that he was
10 not properly informed of the charges against him and that the Trial
11 Chamber was biased against him in not providing reasons for his
13 I would now like to remind the parties about the criteria
14 applicable to errors of facts or law alleged on appeal. The Appeals
15 Chamber has pointed out on numerous occasions, an appeal is not an
16 occasion for parties to re-plead their case. It is not a trial de novo.
17 The general rule is that on appeal, the parties must limit their
18 arguments to matters falling within the framework of Article 25 of the
19 Statute, that is, errors and questions of law invalidating the decision
20 or errors of fact which have occasioned a miscarriage of justice. In a
21 rare case, a party may raise an issue of general importance to the
22 Tribunal's jurisprudence. An appellant alleging an error of fact must
23 demonstrate that no reasonable trier of fact could have reached the
24 conclusion being challenged and that this error has caused a miscarriage
25 of justice.
1 The final arguments of the parties will be heard in accordance
2 with the schedule set out in the Scheduling Order of 19th March 2004, as
3 amended by the Scheduling Order of 22 March 2004. At the end of the
4 final arguments, the appellants will be allowed to make brief submissions
5 to the Chamber.
6 Turning now to the Defence for Mr. Prcac, I would invite
7 arguments by him. I will explain that our invitation to counsel for Mr.
8 Prcac to speak first is out of the order indicated in the cover page of
9 the judgement, but that this is due to questions as we perceive them,
10 relating to the need to consolidate the arguments and especially having
11 regard to the necessities of presenting arguments on matters of common
12 concern to the appellants.
13 So would counsel for Mr. Prcac be the first to speak, that is,
14 Mr. Simic.
15 MR. J. SIMIC: [Interpretation] Thank you, Your Honour.
16 The Defence of Mr. Prcac submitted this appeal almost two and a
17 half years ago on the grounds that Your Honour has summarised and which
18 we will only briefly discuss. It is -- the standpoint of the Defence has
19 not changed since we submitted our motion. What we put forward, and
20 still argue, is the fact that Mr. Prcac was indicted and charged that, as
21 a deputy commander of the Omarska camp, he held a position which implied
22 his participation in a joint criminal enterprise because the Trial
23 Chamber took the position that the camp itself was a joint criminal
25 The indictment that has been confirmed contained assertions by
1 the Prosecution that Mr. Prcac was the deputy commander and that he was
2 superior to everybody in the camp except the commander, that he was able
3 to change the conditions, to make decisions on transferrals of detainees
4 and that he could decide who could enter the Omarska camp and when.
5 These allegations by the Prosecution were rejected by the Trial Chamber.
6 The Trial Chamber established that Mr. Prcac was not the deputy commander
7 of the camp, that he was not authorised, that he had no authority over
8 the guards and other services in the Omarska camp, that there was a
9 separate chain of command and hierarchy, and that he was not in the
10 position that he -- that the Prosecution claimed he was.
11 However, it was established by the Trial Chamber that he was the
12 administrative assistant of the camp commander. In the view of the
13 Defence, this is not well grounded. But this was used to characterise
14 his position and influence, and the influence that he, as a low-ranking
15 person, could wield on the joint criminal enterprise.
16 This Defence team, as the Appeals Chamber knows, has found it
17 part of its appeal on the standpoints taken by the Trial Chamber in the
18 Krnojelac case, which established some standards which are not new but
19 which the Defence finds acceptable and very efficient in establishing the
20 role, function, and therefore, the criminal responsibility of persons
21 accused as participating in a joint criminal enterprise. This has now
22 entered the jurisprudence of this Tribunal. Participation in a joint
23 criminal enterprise is incorporated in the individual responsibility
24 provided for by Article 7(1) of the Statute of this Tribunal.
25 In the appeals judgement in the Krnojelac case, the Appeals
1 Chamber did not discuss what the Defence thought would be discussed
2 because they presumed the participation of the accused Krnojelac and his
3 position and status in the Foca KP Dom prison, because he was in charge
4 of the functioning of one part of KP Dom, they found, or, that is, the
5 Trial Chamber found that this position is sufficient to imply a
6 significant contribution.
7 There may seem to be a difference in standards between this
8 standpoint taken by the Trial Chamber in the Krnojelac case and the
9 judgements in Krstic and Tadic, the Krstic and Tadic trials. Although no
10 judgement has yet been handed down by this Tribunal to the effect, or any
11 standpoint taken, to the effect that the physical presence of a person in
12 a place and at a time when the crimes falling under the jurisprudence of
13 this Tribunal took place can be used to prove the culpability of that
14 person. Additional evidence is needed, in addition to his physical
15 presence at that place and time.
16 In the view of this Defence team and the other Defence teams,
17 this objective responsibility does not exist. Something more is needed.
18 What is this? There has to be influence or authority, something that can
19 be pointed to specifically. This, however, does not mean that the
20 Prosecution did not have to prove the mens rea of the accused in
21 connection with the crimes alleged against him and the crimes he
22 allegedly perpetrated.
23 The Defence feels that the Prosecution had to prove mens rea in
24 connection with the crimes the accused is charged with. The Defence
25 asserts that it is not sufficient for this conclusion to be possible. It
1 has to be the only possible reasonable conclusion. If, on the basis of
2 the evidence and the witness statements, there is any doubt or any other
3 possible conclusion, then the Trial Chamber cannot draw this conclusion.
4 In a situation when we are determining the position of an accused
5 in a joint criminal enterprise, the Defence believes we have to proceed
6 from what the Trial Chamber established in this case, namely, that these
7 are people of very low rank. We're not talking about people who have any
8 command responsibility or any command position. They are free. That is,
9 Mr. Prcac is free of command responsibility envisaged by the Statute. So
10 he can be responsible only individually. By making a significant
11 contribution or by having enabled, unhindered or better functioning of
12 the camp at the time.
13 The Trial Chamber in this case derived this position from the
14 Dachau case, where it says if the membership of an accused who is
15 low-ranking and who was implied to be a member of a joint criminal
16 enterprise, with guilt already presumed, could be exonerated if his
17 contribution was insignificant, or less than significant, if his stay at
18 the camp was short, and so on and so forth.
19 In this case, the Trial Chamber accepted this position, and it
20 says - that's paragraph 309 of the judgement - the mere presence of the
21 accused at the camp does not mean that he is criminally responsible. His
22 participation in that camp has to be significant, and that means that his
23 acts or omissions make the enterprise more efficient and effective, and
24 this is applicable on a case-by-case basis. This is a standard accepted
25 by the Trial Chamber itself, and it is grounded in the position of this
1 Tribunal as a whole.
2 The Defence, therefore, had to prove that the accused did not
3 have the position he was incriminated with and that he did not commit the
4 acts he was charged with.
5 The Prosecution did not have any reason, nor could they have
6 envisaged, that some other function apart from the one they indicated
7 increased his -- the accused's significance. So the position of the
8 accused in this enterprise, aider and abettor, instigator, member,
9 et cetera, becomes important. What has to be proven is whether
10 Mr. Prcac, Dragoljub Prcac, did indeed make a significant contribution to
11 the functioning of this camp. We claim that, no, and that he is not
12 criminally responsible.
13 If we look at the indictment, the Prosecution has claimed in this
14 indictment - I will be brief here - that in the period from the 24th of
15 May until the 30th of August, in his capacity of active policeman who
16 replaced Miroslav Kvocka as deputy camp commander, was superior to
17 everyone in the camp except the camp commander, and as deputy commander,
18 had a possibility to change the conditions in the camp, to control the
19 comings and goings of visitors, and to determine the regime.
20 Following the indictment, our learned friend Keegan repeated all
21 this and added some more. He claimed that in Omarska camp there was a
22 clear hierarchy with Zeljko Meakic being the commander. He said that the
23 position of Dragoljub Prcac, as deputy commander, gave him actual control
24 over shift commanders and the visitors who came into the camp, such as
25 Zigic, and that he was present during the commission of criminal acts,
1 and that on several occasions he called out prisoners from previously
2 prepared lists, lists that he was in charge of, that he was in control
3 over all parts of the camp and that he performed the duties of the
4 commander in the absence of Zeljko Meakic.
5 Your Honours, as you know, the Defence made a comparative
6 analysis of the charges levelled against the accused and between the
7 findings of the Trial Chamber. Not a single count in the indictment has
8 been proven by the Prosecution.
9 Not proved by applying in dubio pro reo, for instance. We
10 established who was in charge for the food, for the water. We
11 established what the relations were in the camp, what the structure of
12 the camp was, and it turned out that the claims of the Prosecution were
13 untrue. On the other hand, in the response made by the Prosecution to
14 the appeal made by this Defence team, the Prosecution attempt to swap
15 theories, saying that the fact that he was not said to be the commander
16 of the camp means that he is not culpable under Article 7(3) of the
18 With all due respect, as far as I'm aware of international
19 criminal law, I haven't found a single national legislation where the
20 indictment is not obliged to specify exactly what somebody is charged
21 with. If that something does not exist, then we don't need the
22 indictment -- it is not needed at all. It is enough to say that somebody
23 is part of a joint criminal enterprise, and then you can go on from that
24 to prove any theory.
25 What is curious is the following: The Appeals Chamber, after
1 all, establishes certain standards at one point. I will deal with --
2 THE INTERPRETER: Interpreter's correction. The Trial Chamber
3 establishes certain standards.
4 MR. J. SIMIC: [Interpretation] In paragraph 245 says that an
5 indictment has to be very clear in specifying the charges, in order to
6 enable the trying of the accused. This is the standard laid by the Trial
7 Chamber but has not been observed in this case, in our view.
8 So, as for the joint criminal enterprise itself and the
9 participation of the accused Prcac in it, we need to emphasise that
10 nowhere, in no way, was it established how his contribution was
11 significant and what he has done for anyone to be able to claim that he
12 participated in this joint criminal enterprise.
13 The Defence stressed, and firmly believes, that the Trial Chamber
14 made a series of grave errors. At this point, the Defence does not
15 believe that the Trial Chamber weighed the evidence and testimonies and
16 made findings that are disadvantageous to the Defence. The Defence
17 claims that the Trial Chamber misquoted the transcripts, took things out
18 of context, and misinterpreted the submissions of this Defence.
19 These grave errors resulted in the erroneous conclusion made by
20 the Trial Chamber that the accused Prcac was in charge of the camp and
21 the commander, the administrative controller of the camp. We will deal
22 with this later, however.
23 No reasonable trier of fact, in our submission, could come to
24 that conclusion. The finding of the Appeals Chamber that this Defence
25 should not evaluate evidence -- but, however, we are not evaluating
1 evidence. We are just submitting that certain evidence was not
2 considered by the Trial Chamber.
3 Similarly, the Trial Chamber established the principle in dubio
4 pro reo. A lot of evidence was adduced, and the Trial Chamber decided
5 that a great number of witnesses spoke about the role of Mr. Prcac in the
6 Omarska camp. 37 spoke about the Omarska camp, the occurrences there,
7 its structure; and 45 spoke about the role of Mr. Prcac. Out of the 37,
8 some said that he was the commander. Some said -- in fact, four said
9 that he was deputy commander. Some, in fact, one, said that he was the
10 administrative assistant of the camp commander, and the rest didn't know
11 at all what his role was.
12 In keeping with the dubio pro reo principle, the Trial Chamber
13 says that there is no evidence that he was the camp commander. But on
14 the basis of the same evidence, the Trial Chamber goes on to conclude
15 that he was the administrative assistant of the camp commander, instead
16 of saying that there is no evidence of his role.
17 The situation is similar with the standards applied by the very
18 Trial Chamber, although these are the same principles against which we
19 appealed, concerning, in particular, the evaluation of the credibility of
20 witnesses and their testimony. It has been established for a long time
21 in this Tribunal that witnesses cannot be expected to give precise
22 testimony eight or nine years later after the event. It doesn't mean,
23 however, that the witness can say whatever they want and the Trial
24 Chamber can take out of that testimony what it needs.
25 In practice, it boils down to one thing. Testimony which is
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 inconsistent with previously given statements to the Prosecution is
2 acceptable. Testimony which is inconsistent with other testimony is also
3 acceptable, but only if they are minor inconsistencies. It is quite
4 clear that a witness cannot remember everything very clearly. A witness
5 speaks from memory. But an event can be described more or less
6 precisely; but it cannot be completely different and fall out of the
7 context created by the bulk of all the other testimony.
8 Before this Trial Chamber, this Defence team has had a lot of
9 problems. First of all, we did not receive any material which is being
10 disclosed nowadays under Rule 68. And we were prejudiced because we
11 didn't have one important fact that was proven in the Tadic case, but to
12 the great regret of this Defence team, it was established wrongly. We
13 could have been able to use this material, but we didn't. We were unable
14 to produce this material before certain witness who testified here about
15 certain circumstances. It happened many times during the trial that
16 witnesses were replaced. It was the case with eight or nine witnesses.
17 The credibility of witnesses was always -- was very often in question.
18 The imperative should have been to establish the truth despite the
19 limitations of time.
20 It is the view of this Defence that we cannot accept the
21 testimony of a witness which is disparate with the testimony of all the
22 other witnesses. It happened in the Tadic case - and it is relevant for
23 our case - that a witness testified who was later found not to have been
24 the victim of rape at all. If such a witness was able to be called, that
25 is completely wrong. Such things happened in our trial as well.
1 As far as the Omarska camp is concerned, certain testimonies were
2 drawn out of context, both regarding witness testimony and the
3 submissions written by this Defence team.
4 As I said, the third standard applied by the Trial Chamber was
5 that the indictment should provide a recognisable framework and provide
6 guidelines to the Defence as to what the accused is charged with and how
7 he should be defended, against what. The Defence made clear in its
8 appeal that the claim that the accused was administrative assistant to
9 the camp commander is a grave violation of this standard. This Defence
10 has never heard in this courtroom that anybody charged their client with
11 being the administrative assistant to the camp commander.
12 What is important to us at this moment is that the Trial Chamber
13 was trying to establish a certain hierarchy and structure of the camp.
14 And it established beyond any reasonable doubt - a point on which we
15 agree - there was an investigative service, there was a special platoon
16 of guards who were serving these investigators, then that there was an
17 intervention squad from Banja Luka in one part of the camp. There was
18 also a technical service that took care of the maintenance of facilities
19 of the camp, that there was an army as an external security system, that
20 there was a Territorial Defence that was in charge of preparing,
21 supplying, and delivering food, and also helped provide security, the
22 physical security of the camp.
23 In this section, the Trial Chamber establishes that these
24 services existed, and Zeljko Meakic, as the commander or security, had no
25 competency, de facto or de jure; was unable to punish or control
1 investigators or any other component of this structure.
2 Although this was not said decisively, this finding of the Trial
3 Chamber means that Zeljko Meakic was a chief of security, not camp
4 commander. The indictment charges Dragoljub Prcac with being deputy
5 commander of the camp, deputy to Zeljko Meakic. Now, look at the
6 situation we are in. Zeljko Meakic is not camp commander. He is chief
7 of security, whereas Prcac suddenly becomes deputy camp commander. And
8 nobody knows - not the Trial Chamber, not the Defence teams, not the
9 Prosecution - who the camp commander actually was. And the Defence team
10 wonders how am I able to appeal at all, and what am I able to do in a
11 situation when I do not know the identity of the camp commander? The
12 camp commander is some fictive person which we, by the way, established
13 to be Simo Drljaca, because the Trial Chamber didn't bother with it at
15 So Zeljko Meakic was charged with being the deputy camp
16 commander, whose identity, the identity of the camp commander being
18 From the viewpoint of the Defence, we believe it is a very
19 important issue indeed. First, if we take into consideration that the
20 Defence was never shown that Dragoljub Prcac was perhaps the
21 administrative assistant to the camp commander, and if his role was
22 always linked to Zeljko Meakic, the chief of security, and we do not know
23 who the camp commander was, the Defence asked itself, and this is a
24 question we put forward in our brief, would we have conducted the defence
25 in the same way had we known all this? The Defence could say that
1 Dragoljub Prcac was -- or rather, the Prosecution could have said that
2 Dragoljub Prcac had an important position in the camp, and then the
3 Defence could have considered all the possibilities. However, throughout
4 the trial, the Prosecution claimed that he was the deputy camp commander.
5 The Defence attempted to prove that he was not, that he had not been the
6 deputy camp commander. We were trying to establish all the time not what
7 he did not do, but what he actually did; what he was actually in charge
9 The Defence was not satisfied with a narrow interpretation of
10 dubio pro reo. It was not satisfied with proving that he was not the
11 deputy camp commander. We were rather concerned with showing what he
12 actually did in the camp, and we adduced this. But the Trial Chamber
13 misinterpreted what we presented completely. Not only did it
14 misinterpret it, it cut off a part of a sentence, thereby giving it a
15 completely different meaning.
16 In the situation where we do not know who the camp commander was,
17 we cannot examine the role of Mr. Dragoljub Prcac. There is not a shred
18 of evidence to show that he contacted anyone but Zeljko Meakic, who was
19 the chief of security. No evidence was ever adduced to prove this. If
20 we put forward the hypothesis, as the Prosecution would like to do in
21 their response to our appeal, that we should have foreseen, because he
22 was indicted of being a member of a joint criminal enterprise, that we
23 should have foreseen this, this would mean that in fact we didn't need
24 the indictment at all. All we would need was this general information
25 that he was part of a joint criminal enterprise. I really don't know
1 what the Defence would have looked like in that case and what defence
2 could have been put forward. With all our limitations and with all our
3 very limited resources, I don't think any Defence team could have had a
4 chance of proving the innocence of anyone before this Tribunal. Because
5 if he was not the deputy commander, he was the administrative assistant.
6 If he wasn't the administrative assistant, he might have been the cook.
7 If not the cook, then the scribe. If not, then he might just have had
8 influence, because perhaps he was an elderly person or a good person, a
9 person people respected because he had never -- he had never had any
10 conflicts with anyone and was respected in the community, and that would
11 have been sufficient to declare him a war criminal because he was
13 If we look at the situation in the Omarska camp at the time when
14 these crimes took place, we shall see that apart from the organisation
15 which, in the view of the Defence, has been described with great
16 precision, it is fair to say that there was chaos in the camp. Anyone
17 could enter the camp. Evidently, anyone could maltreat, abuse, or even
18 murder whoever they wanted to. And evidently, the Defence is not trying
19 to claim that perhaps there was a plan. Somebody had to create this
20 plan; that somebody had to have authority. He had to be in a certain
21 position and he had to have people willing to implement the plan. But
22 criminal responsibility cannot be inferred from position alone.
23 This trial involves low-ranking persons. The highest rank in the
24 police, whoever answered to this Tribunal was the chief of the patrol
25 sector. We did not get the chief of police or anyone in a senior
1 position. Those who actually created the criminal enterprise have not
2 been indicted, those who worked on its implementation, on murders, on
3 torture, on worsening the living conditions of the detainees. The
4 Defence gave up on those people. 13 other accused were to have been
5 indicted before this Tribunal. These are persons mentioned in the
6 documents. These are persons mentioned by name as having perpetrated
7 crimes. These are persons who did not perpetrate only one crime, they
8 are people who consistently and constantly mistreated the detainees.
9 If we look at the actual state of affairs, the guards in the
10 camp, of whom there were six or seven or eight, that's number -- there
11 are 13 of those. We are talking of people of the same of rank. In a
12 village near Prijedor, which existed in the former Yugoslavia, this
13 village was known for its football, its soccer club, which once played an
14 important game, and it was known from World War II because of an enemy
15 offensive on the village of -- on the mountain of Kozara. In that little
16 village there was a police station, mostly manned by people who had not
17 been properly trained or schooled, had only done some training courses.
18 And these people were expected to have an overview of the general
19 situation in relation to the former Yugoslav legislation, if omission or
20 failure to act could not be a violation of international criminal law.
21 These people were expected to understand the context and avoid such a
22 situation. They were not so well informed or educated, and they felt
23 that by not acting - that is, by not hitting a detainee, or doing
24 anything to injure any of the detainees, or harm them in any way - they
25 felt that they were keeping their distance from the joint criminal
1 enterprise by doing nothing except helping, sometimes bringing some food,
2 some medicine, within the scope of their possibilities. Because we have
3 to understand that the overall situation in Prijedor was bad. Prijedor
4 gravitated towards Zagreb and Belgrade. Both those lines of
5 communication had been cut off. There was no economy. These were poor
6 people. Apart from their employment, they had to do additional work in
7 order to survive.
8 The Defence talked about the case of Mr. Prcac. This was an
9 ordinary man who felt that he could show his disagreement by not doing
10 anything. He didn't understand the situation. The Defence put forward
11 evidence showing that he was forced to go to the Omarska camp. We would
12 never have put this forward as a ground of appeal had the Trial Chamber
13 only stated in its judgement that it did not give credence to the
14 statements that Mr. Prcac made in his interview that he gave to the
15 Prosecution. No. Instead, they said that Mr. Prcac did not mention the
16 fact that he had been forced into coming to the Omarska camp when he gave
17 his interview to the Office of the Prosecutor.
18 The Defence would like to point out that Mr. Prcac was arrested
19 on the 5th of March. He met the Prosecution for the first time on the
20 6th of March. The trial began on the 2nd of May. So a certain period of
21 time elapsed, or rather, 45 days, between his arrest and the start of
22 trial. Almost nothing had been disclosed. We did not have the complete
23 material. We still had the redacted witness statements. So the Defence
24 and the accused were not fully aware of the facts and of the fact basis,
25 and we felt that it was important for him to give an interview. He gave
1 an interview. As you know much better than I do, an interview is a
2 situation in which the Prosecution puts questions and the accused
4 As we did not know all the facts in the fact basis, in the
5 Factual Basis, on the first day of the interview, Mr. Prcac gave his own
6 view of the events in Prijedor and the Omarska camp, and then for a
7 further three or four days the Prosecution put questions. And we have
8 mentioned the pages of the transcript, and so on and so forth. In that
9 interview, Mr. Prcac said that Simo Drljaca had threatened him with a
10 bullet in the forehead and that his house would be burnt down unless he
11 went to Omarska. The Trial Chamber said that Mr. Prcac never said this.
12 This is the grave error that the Defence is drawing attention to. Had
13 the Chamber said Mr. Prcac did say this but we did not give credence to
14 it, he was saying this only to evade criminal responsibility, then the
15 Defence would have viewed this as a prerogative of the Trial Chamber and
16 would not have used it in our appeal. However, the Chamber claimed that
17 he had never said this.
18 The conclusion that Mr. Prcac was administrative assistant to
19 camp commander is only one of many such errors.
20 The first error that the Defence draws attention to is the
21 situation as to whether he arrived -- whether he was coerced into going
22 to the camp, under duress. The second error of the Trial Chamber
23 consists in Mesan Omer's witness testimony. Various witnesses testified
24 before this Tribunal, trying to explain the role and contribution of
25 Mr. Prcac, and one of these witnesses described a situation in which
1 Mr. Prcac allegedly, independently, without consulting his superiors,
2 decided -- or rather, made the decision on the transfer of detainees.
3 This allegedly took place on the 6th of August, when the camp was
4 disbanded. After the 6th of August, 174 detainees remained. They had
5 beds and food, and they were under the supervision of the ICRC, while all
6 the others were transferred to the military camp at Manjaca or the
7 Trnopolje collection centre.
8 This happened on the last day, and all the witnesses say that a
9 large number of guards were calling out detainees' names. So there
10 wasn't a single one who was especially tasked to do this. There were
11 about 1.700 or 800 men whose names were called out. They were put on
12 buses and taken away. Then a number of men appeared who were not on any
13 list, claiming that -- they claimed that Mr. Prcac had done this in order
14 to demonstrate that he made a significant contribution and could act on
15 his own initiative. Mr. Mesic said that he said: Take these men there.
16 And that therefore they were transferred to Manjaca.
17 On the basis of this, the Trial Chamber concluded that Mr. Prcac
18 acted independently during the transfer of detainees, single-handedly,
19 without consulting his superiors. But Mr. Omer did not recognise
20 Mr. Prcac. Our question is: How can we say that this actually was
21 Mr. Prcac? Although no one could conclude beyond any reasonable doubt
22 that that person, whoever it was, was responsible for the transfer of
23 detainees. This could have been somebody entirely different. But this
24 is something that was stressed by the Trial Chamber and that led to Mr.
25 Prcac being declared the administrative assistant to the camp commander.
1 The Trial Chamber - and this is something that the Defence finds
2 especially important - is that they said that Prcac was the
3 administrative assistant to the camp commander.
4 Your Honours, the Defence never stated this. The Defence adduced
5 numerous quotations on the basis of which the real state of affairs can
6 be ascertained, and that is that throughout the proceedings, the Defence,
7 from its pre-trial brief onwards, consistently claimed that Dragoljub
8 Prcac had been brought to the Omarska camp to work on radio
9 communications and that from time to time he performed other jobs. These
10 jobs were sometimes finding a certain detainee, drawing up a list of
11 detainees who had just been brought in, or something else that he was
12 commanded to do by Zeljko Meakic.
13 In the structure of the camp, as established by the Trial
14 Chamber, there is no doubt that investigators could give orders, because
15 it was established beyond doubt that, in terms of hierarchy, the
16 investigators were superior to the security service. And this is the
17 only correct statement, the only correct piece of information, and the
18 Defence does not know how and why the Trial Chamber was able to conclude
19 what it concluded.
20 Throughout the proceedings, the Prosecution attempted to portray
21 Mr. Prcac as someone who held a position and that this was reflected in
22 the fact that he drew up lists of detainees. They drew this conclusion
23 from the fact that all the witnesses who testified about Mr. Prcac said
24 that he only occasionally walked about the compound and that he usually
25 carried sheets of paper with him. Nobody ever said that he carried
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 lists, or if they did say so, this was pure speculation.
2 Wishing to add weight to this, the Prosecution started saying
3 that he was in fact responsible for the lists that were drawn up, lists
4 of people to be liquidated. And, as we heard a moment ago, the Defence
5 did not wish to hide at any point from anything by saying something
6 didn't happen. We tried to find out exactly what lists were made, how,
7 and what the people from those lists had ended like.
8 We had one such witness who was responsible, in the first part of
9 the existence of the camp, for the making of all those notorious lists.
10 Asked who placed detainees into three categories - because the
11 Prosecution insisted on these three categories, that is, combatants,
12 abettors, and those to be released - categories on the basis of which
13 triage was made. And most of these were non-Serbs. This witness said:
14 It was me. I had to decide on a methodology to be used for triage, and
15 that's how we did it. And this witness explained how it came about that
16 Mr. Prcac read out a list of women who, fortunately, are all alive and
17 were all transferred to Trnopolje camp.
18 There is no evidence - except in one single case, but
19 fortunately, there are other elements of proof to the same point - there
20 is no evidence that anyone who was driven away or transferred from the
21 camp called out by Mr. Prcac was never seen again. There is only one
22 person, Eso Sadikovic, from Prijedor. He was called out by Prcac and he
23 was exhumed later in a mass grave in Hrastova Glavica, together with 124
24 prisoners from Keraterm. There is enough evidence of that to prove that
25 he was taken to Keraterm and met his death 90 days later. That's the
1 only person who was called out by Mr. Prcac. And Mr. Prcac did mention
2 him in his interview. The Defence, in fact, claims that everything
3 mentioned by Mr. Prcac in his interview proved to be correct.
4 So, this begs the question - and I don't want to take any more
5 time of the Appeals Chamber, because you are familiar with our
6 submissions - all these errors, misquotations and misinterpretations,
7 were used in order to proclaim Mr. Prcac deputy commander of the camp, or
8 administrative assistant to the camp commander, and thus increase his
9 criminal responsibility. The Trial Chamber at no point defines his
11 In one paragraph, it says that he obviously had some influence
12 among the guards over whom he had no superiority, and the same goes for
13 guards. He took care of the transfer of prisoners inside the camp, on
14 the orders of Meakic's investigators, and that is his contribution.
15 Because of all these situations that the Defence has mentioned
16 now, the Defence stressed the evaluation of credibility of certain
17 witnesses. We're not talking about minor irregularities. We're talking
18 about huge differences in testimony, huge disparities. And the Trial
19 Chamber, unfortunately, took out certain testimonies that have not been
20 corroborated by any other testimony, out of the context to place
21 Mr. Prcac in the position of administrative assistant. Without this
22 qualification, Mr. Prcac would not have been convicted. That's what the
23 Defence is trying to show. We are trying -- we were trying to show to
24 the Trial Chamber that by analysing all the evidence, it can be
25 established realistically, beyond any reasonable doubt, that his position
1 was very low; below that of a regular guard. According to what the Trial
2 Chamber established, certain people with certain positions walked around
3 the camp. Some people gave them special meaning. At one point, it was
4 said: Witness A said this to him: And other witness said yes, they were
5 there, talking and they left. And Witness A says: Well, no, actually, I
6 didn't hear that they were giving an order, as she claimed previously.
7 There were many such cases. Without proving that position, his
8 contribution cannot be proven.
9 If we now look at the Dachau judgement, the standard is long-term
10 contribution. 22 days may be long term, even if you are not there all
11 the time. But Mr. Prcac was in the camp only 11 times, during 11 shifts.
12 I don't know if even Karadzic or Mladic, had they been in the camp at
13 all, would be able to establish order in the camp.
14 In addition, as soon as he arrived at the camp, he expressed his
15 dissatisfaction. He asked why a dead man was lying on the ground; why
16 there was no chlorine; why there was no food. Simo Drljaca answered --
17 somebody answered to him that Simo Drljaca ordered it this way. Prcac
18 brought food to the camp. Another witness was saying that she was
19 regularly called out at night, insinuating that she was maybe raped. And
20 this woman said: Mr. Prcac probably saved my life.
21 In the context of all these situations and incidents, we have to
22 bear in mind this witness who was maybe raped, said that she went to talk
23 to Mr. Prcac because he could give her comfort, and she said that my
24 family is alive because of Mr. Prcac, because he took care of them, he
25 comforted them.
1 Many evidence was adduced here to prove that non-Serbs had to
2 sign away their property to Republika Srpska before they were able to
3 leave Prijedor. It was a statement, a legal statement. In that
4 situation, Mr. Prcac makes a document of legacy with another person. And
5 when she came back, her weekend cottage was already destroyed. The
6 apartment was no longer available because it was the property of the
7 municipality, and that's the whole story.
8 The Omarska camp existed. The conditions were inhumane. They
9 were atrocious. And that's what we should be dealing with: Who is
10 responsible for that, rather than trying to replace them by these
11 low-ranking people, trying to reason that they could somehow be connected
12 with the real perpetrators.
13 In that context, how is it impossible not to incriminate people
14 who constantly committed crimes, who did have discriminatory intent?
15 Nothing was shown before the Trial Chamber, nor was it written in the
16 judgement, to the effect that Mr. Prcac had discriminatory intent in his
17 actions. So much about discriminatory intent. The Defence will not deal
18 with it any more.
19 So all that was claimed or charged by the Prosecution has not
20 been proven. The question arises: Is the Trial Chamber entitled to go
21 beyond the scope of the indictment and decide on facts that are not
22 mentioned there, to decide that an accused is guilty of other things,
23 simply by being a member of the joint criminal enterprise? If that were
24 so, that would mean that we don't need indictments at all. It would be
25 enough to say that such-and-such a person was there, and by that mere
1 fact was guilty.
2 After the end of the Prosecution case, the Defence made a motion
3 under Rule 98 bis for acquittal, and even then we claimed that there is
4 not enough evidence to find Mr. Prcac guilty of the charges beyond any
5 reasonable doubt. We signaled in that submission that there is not
6 enough evidence. And the Prosecution could have amended the indictment
7 at that stage. Another option open to them was to write a longer, more
8 detailed indictment that would lead our Defence to investigate into other
9 possibilities concerning the role of Dragoljub Prcac in the camp. No.
10 Throughout their case, the Prosecution claimed that he was deputy camp
11 commander, which determined his role and his significant contribution.
12 In conclusion, we should say that the Prosecution didn't appeal
13 at all. We shouldn't lose sight of those pictures from Keraterm, from
14 Trnopolje, rather, made by Penny Marshall in her programme, and that
15 immediately after the Vukovar events, this Tribunal was established.
16 Justifiably or not, truthfully or not, the Omarska camp was present and
17 highlighted everywhere as one of the greatest atrocities anywhere,
18 certainly in the territory of the former Yugoslavia. And when you bring
19 here persons accused of contributing to the Omarska camp, you don't
20 appeal. You claim that you have the structure of the camp firmly
21 established and that those are the people. When Mr. Prcac gets five
22 years, he is not expected to appeal.
23 JUDGE SHAHABUDDEEN: Mr. Simic, are you proposing to leave a few
24 minutes for questions by the Judges?
25 MR. J. SIMIC: [Interpretation] Your Honour, certainly, of course.
1 I will be done very shortly.
2 So, in conclusion, Your Honour, I would like to stress that this
3 Tribunal was not established to settle accounts with people who were
4 physically present in an area. It has been said many times what the
5 level of this Tribunal is. It is the highest legal, judicial body in
6 this part of the world. We established that my client had the status of
7 a regular guard, he had no command responsibility. The Trial Chamber
8 went beyond the context and that it was not regular for somebody to be
9 convicted of a charge absent from the indictment. And it is not the task
10 of the Trial Chamber to save the indictment and do the job of the
11 Prosecution. It would not be awful for a Serb to be acquitted, in our
12 submission, especially if nothing in the indictment has been proven.
13 So much, Your Honour, and thank you.
14 JUDGE SHAHABUDDEEN: I'm much obliged to you, Mr. Simic. Let me
15 see if my colleagues on the Bench wish to clarify anything in your
17 Judge Guney wants to ask you a question.
18 JUDGE GUNEY: [Interpretation] Counsel Simic, in the course of
19 your submission, you have attempted to highlight the influence and the
20 authority that your client had at the camp. You insisted on the fact
21 that he was not camp commander. Is that true?
22 MR. J. SIMIC: [Interpretation] We said that he was not only not
23 camp commander. We said throughout the trial that he was not deputy camp
24 commander, as alleged.
25 JUDGE SHAHABUDDEEN: Yes, Mr. Simic. Please proceed.
1 MR. J. SIMIC: [Interpretation] Well, if the interpretation is
2 correct, and if I understood the question correctly, we claimed that he
3 was not deputy camp commander, as written in the indictment, and that we
4 have proven. That was established by the judgement.
5 JUDGE GUNEY: [Interpretation] Well, I have carefully listened to
6 your submission, in which you emphasised the fact that your client was
7 replacing Kvocka between 24th of May until the 30th of August. Is that
9 MR. J. SIMIC: [Interpretation] Your Honours, I'm sorry, but it is
10 not true. We were saying exactly the reverse. Mr. Prcac did not replace
11 Miroslav Kvocka, and even the Trial Chamber established that. And
12 therefore, will you bear with me for a minute. If he had been a deputy,
13 then he would have been deputy of the chief of security, as the Trial
14 Chamber found Mr. Kvocka to have been. But they say there is no evidence
15 of that and there is no evidence of him being the deputy commander or the
16 deputy chief of security, and that's why they proclaimed him
17 administrative assistant instead.
18 JUDGE GUNEY: [Interpretation] Well, in the light of what you
19 said, would you kindly give me your view: Who, according to you, was the
20 commander of the Omarska camp? Second: Tell me kindly, what was the
21 exact position, the exact function of your client for the duration of his
22 stay in the camp? What duties did he discharge as long as he was there?
23 I would like clarification on these two points, if possible. Thank you.
24 MR. J. SIMIC: [Interpretation] Your Honour, in view of the
25 Defence, it was Simo Drljaca who was the camp commander, or rather, the
1 Crisis Staff. According to the witness statements, mainly Defence
2 witnesses, but also some Prosecution witnesses, Simo Drljaca certainly
3 had a major influence. The investigators, who were the most important
4 service, reported to him daily. No one could be arrested without his
5 order or approval, nor could anyone be released without his order or
7 Furthermore, he was the person who decided on everything. He
8 visited the camps on more than one occasion. All the services, according
9 to testimony from other cases, because I've read all the transcripts,
10 reported to him and to the Crisis Staff. We asserted all the time that
11 it was Simo Drljaca who was the camp commander. No evidence was ever
12 adduced, nor did anyone speculate, that Mr. Dragoljub Prcac was in any
13 kind of contact or relationship with Simo Drljaca. It was Simo Drljaca
14 who was the camp commander. There were four or five services acting
15 independently, but all reporting to Simo Drljaca. They were acting
16 independently of each other. They all had their positions and their
17 duties. And you also asked me about the position of the accused Prcac.
18 I have to say that Prcac came to the camp just before the camp was
19 disbanded. Before that he was a forensic technician in the Omarska area.
20 On the 15th of July, or around the 15th of July, he was brought
21 with a clear task, to maintain the radio connection, because, according
22 to witness testimonies, the radio connection was maintained by ordinary
23 guards who did not always know how to cope with the technology, so it was
24 necessary to bring in somebody who was familiar with radio technology and
25 who could maintain the connection with the police department, because
1 there was no direct telephone line. There was one that the investigators
2 had, but it was in a locked room. And in that period, in which there
3 were 11 shifts, he was occasionally present when detainees were brought
4 in, on orders from Meakic or the investigators, and as there were no
5 records or lists, as the Prosecution wanted to show, the detainees
6 wandered around, and if an investigator wanted to question someone, he
7 had to send somebody to find this detainee and bring him to him. These
8 were the kinds of jobs that he was asked to do, to locate a certain
9 detainee, to be present when detainees were brought in. Investigators --
10 or the witnesses didn't testify to seeing him a lot because he was next
11 to the radio equipment. He had no talent, no special knowledge. He did
12 jobs that everybody did. The Defence brought mostly witnesses who had
13 been at the camp, and these were all people who did exactly the same jobs
14 as he did. A guard sometimes received detainees. Prcac didn't sit there
15 around the clock. He had his 12-hour shift, and he was always there when
16 Meakic was there. So if we look at the Celebici case, the deputy
17 commander cannot be held responsible if the commander is present. But
18 that was not the case, actually. He did only the kinds of jobs that
19 everybody did. There was nothing to set him apart specially in what he
20 did. He was not specifically in charge of any segment of the work there.
21 He did carry sheets of paper around, so somebody thought that he was an
22 administrator of some sort.
23 JUDGE GUNEY: [Interpretation] Thank you, Counsel.
24 THE INTERPRETER: Microphone for Judge Guney.
25 JUDGE GUNEY: [Interpretation] Thank you, Counsel. The principal
1 function of your client was technical. He was in charge of radio
2 communications. But nevertheless, he did keep lists of detainees and he
3 fulfilled certain tasks of that kind. Is that task compatible with the
4 technical duty, with a technical position, and to what degree? I would
5 like to hear your opinion.
6 MR. J. SIMIC: [Interpretation] Your Honours, with all due
7 respect, I think his fundamental task could not be reduced to that of a
8 technician. This was only a part of his duties. This was something that
9 was done in all police stations or police departments in the former
10 Yugoslavia where there was an institution of a duty officer or someone,
11 and these were rotated. They switched around. There was no single
12 person tasked with carrying out this duty. So that everybody did various
13 jobs up there.
14 The guards mostly stood there. It was very warm. And Zeljko
15 Meakic, as the chief of security, probably wanted to make it easier for
16 them so that they wouldn't have to stand around all the time. So his
17 main task was not the technical equipment but maintaining the connection,
18 because the Omarska police department at that moment covered the Omarska
19 camp in providing security, and also they had to secure the village of
20 Omarska and Petrov Gaj, Kevljani, Maricke and the other hamlets. So that
21 there had to be a communications link between the police department and
22 the camp, if Zeljko Meakic had to be called in or the medical corps had
23 to be called in. This was a technical communications line that had to be
24 maintained by all the guards.
25 And as Your Honour has observed, the investigators who carried
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13 English transcripts.
1 out the triage, who decided who was to be put in what category and what
2 their fate was to be, they would be looking for a certain detainee to
3 question him. So they could ask either Prcac or a guard, or anybody
4 else, to find him. When new detainees were brought in, although in that
5 period, they were not brought in on a large scale but only individually,
6 and then again the investigators, or Simo Drljaca, as we have shown in
7 our evidence, would give names of people to be arrested, and when they
8 arrived, their details were taken down and then this was taken to the
9 investigators, who decide whether to call him in for questioning or not.
10 He did nothing unique, nothing specific, nothing that everybody else
11 didn't do.
12 JUDGE GUNEY: [Interpretation] Thank you, Counsel.
13 JUDGE SHAHABUDDEEN: May I turn to my colleagues on my left.
14 Judge Mumba has question.
15 JUDGE MUMBA: Thank you, Mr. President.
16 Mr. Simic, following your submissions on the role of Mr. Prcac, I
17 note that in sum - correct me if I'm wrong - what you're saying is that
18 he had a minor role to play in the running of the camp, albeit his
19 services were necessary for the running of the camp at the material time.
20 Is it your submission, then, that considering the minor role that the
21 appellant was playing at the camp, what he did, did not amount to serious
23 MR. J. SIMIC: [Interpretation] Your Honour, when I say, "Minor
24 role," what we were trying to say is that he did nothing different from
25 what all the other guards did, the guards who have not been indicted. So
1 his actions and omissions, in our view, do not constitute serious
2 violations of humanitarian law. Otherwise, they would all have had to be
4 JUDGE MUMBA: Thank you.
5 JUDGE SHAHABUDDEEN: Judge Weinberg de Roca.
6 JUDGE WEINBERG DE ROCA: Thank you very much. I have only one
7 short question. Mr. Simic, you, a few minutes ago, mentioned that the
8 Trial Chamber relied on the credibility of one witness whose testimony
9 was very different from all the others that testified on one event.
10 Could you specify to what you're referring to?
11 MR. J. SIMIC: [Interpretation] Your Honour, this is Witness
12 Nusret Sivac, and he has been specially dealt with in the final brief of
13 the Defence. We attempted to prove that he told eight serious untruths
14 before the Trial Chamber. Nusret Sivac said that he was moved from
15 Mujo's room to the pista, the concrete, because water was available
16 there, but he was the only one who claimed that Dragoljub Prcac was in
17 charge of all administrative duties in the Omarska camp. No other
18 witness said anything like that.
19 JUDGE WEINBERG DE ROCA: Thank you very much.
20 JUDGE SHAHABUDDEEN: Just one little question, Mr. Simic. If I
21 may say so, I found your submissions helpful. Would you help me to
22 understand something. I want you to focus on that part of your
23 submissions in which you said something to the effect that your client
24 really went to Omarska camp under something in the nature of duress, and
25 that he had been threatened by Drljaca with a bullet in his head if he
1 didn't go. So I want you to focus on that.
2 Now, it is my impression that your case is that the Trial Chamber
3 misquoted some of the evidence on that point. I am entirely with you on
4 this distinction. You can have a case in which the court misquotes the
5 evidence, and you can have a case in which the court quotes the evidence
6 correctly but, for good and sufficient reasons, it does not accept the
7 evidence. Now, I have looked at paragraph 427 of the judgement of the
8 Trial Chamber on this point, as to the circumstances in which your client
9 went to Omarska and whether he had been threatened by Drljaca. Is there
10 anything in that paragraph which answers to my impression that your case
11 is that the Trial Chamber misquoted the evidence on the point?
12 MR. J. SIMIC: [Interpretation] Your Honour, let me just briefly
13 look at the judgement, please.
14 JUDGE SHAHABUDDEEN: Paragraph 427.
15 MR. J. SIMIC: [Interpretation] Your Honour, this paragraph is
16 correct. There is a paragraph in which something else is stated, that
17 the Trial Chamber was not convinced of this because Prcac never mentioned
18 any threats when he was interviewed by the Prosecution. This is in
19 another paragraph.
20 JUDGE SHAHABUDDEEN: But in this same paragraph, does not the
21 Trial Chamber say the same thing in the penultimate section -- sentence,
22 it says: The Trial Chamber notes, however, that Prcac never mentioned
23 any threats when he was interviewed by the Prosecution.
24 MR. J. SIMIC: [Interpretation] Correct. Correct. Yes. So in
25 this paragraph too, they say that.
1 JUDGE SHAHABUDDEEN: Okay. Well, then, we will adjourn for the
2 moment and return one hour and 30 minutes later on, that is, at 2.45.
3 Yes. 2.45. Would that be agreeable, Mr. Fila? 2.45, then. We will
4 return at 2.45. Thank you, for the moment. The Court is now adjourned.
5 --- Luncheon recess taken at 1.17 p.m.
6 --- On resuming at 2.48 p.m.
7 JUDGE SHAHABUDDEEN: Thank you. Members of the bar, this sitting
8 is resumed. We will now hear learned counsel Mr. Fila -- oh, I'm sorry.
9 I didn't notice you. Go ahead, Mr. Simic.
10 MR. J. SIMIC: [Interpretation] Mr. President, I'll be very brief,
11 but I feel that there might have been a misunderstanding in response to
12 your question. So may I be allowed to give an additional explanation
13 with respect to the quotation from the judgement itself?
14 JUDGE SHAHABUDDEEN: Do forgive me. I've lost the place. What
15 place was I referring to? What paragraph?
16 MR. J. SIMIC: [Interpretation] Paragraph 427, Your Honour.
17 JUDGE SHAHABUDDEEN: Thank you.
18 MR. J. SIMIC: [Interpretation] May I have your permission to
20 JUDGE SHAHABUDDEEN: Yes.
21 MR. J. SIMIC: [Interpretation] Your Honour, your question was, I
22 think, whether this paragraph reflects the assertions made by the
23 Defence, that is to say, that the Trial Chamber assumed the position
24 that, as Mr. Prcac never mentioned in an interview to the Prosecution
25 that he came under threat and coercion, whether this paragraph expresses
1 that position. In the last two sentences, it says: "The Trial Chamber
2 notes, however, that Prcac never mentioned any threats when he was
3 interviewed by the Prosecution."
4 We claim in our appellant brief that he did, and I think this is
5 something that the Defence has already brought out. And then the
6 sentence reads, "The Trial Chamber is not convinced that these threats
7 took place and does not accept his assertion that he worked at the camp
8 under duress." So we claim that Prcac did mention threats and coercion
9 under which he came to be in the camp, whereas the Trial Chamber claims
10 that he did not mention it during an interview by the Prosecution.
11 So what we are saying, once again, that he was under threat and
12 it was not volitional on his part, et cetera, et cetera. That's what I
13 wanted to bring up. Thank you.
14 JUDGE SHAHABUDDEEN: Thank you, Mr. Simic. You have clarified a
15 point of importance to me. Thank you very much.
16 Then we will hear you, Mr. Fila, for Mr. Radic.
17 MR. FILA: [Interpretation] Your Honours, Mr. President, ladies
18 and gentlemen, Your Honours. This is a trial that has lasted for six
19 years. It is a little unusual, if we compare it to all the others that I
20 have taken part in, because three sets of Prosecutors have replaced each
21 other, with three approaches to this case and these proceedings. And the
22 proceedings have ended a little strangely as well, unusually. There is
23 no appeal from the Prosecution with respect to the sentence itself, the
24 number of years, but nothing with which we started out with is to be
25 found in the judgement. I was a little surprised because I never
1 understood one point. If I assert something and the Court does not find
2 that that is so, that I could pass over that and then accept what the
3 Court says and not what I was presenting as the case.
4 If you look at the transcript, I dealt with the Statute quite a
5 bit, the Statute of this august Tribunal. At the beginning of this very
6 lengthy trial, I commented and objected to the differences in this
7 Statute and the statute of the court in Rwanda, and you will remember
8 that it was Common Article 9 of the Geneva Conventions. And the Trial
9 Chamber ruled that I was not right. That was not a happy event for me,
10 but what can I do? I have to move on and accept it.
11 The second point that I dealt with was Article 2 of the Statute
12 of this Tribunal and its definition of what serious violations of the
13 Geneva Conventions means. I would be very happy if, after eight years
14 spent in this Tribunal, we could clear that matter up, or rather, you
15 could clear that matter up for us once and for all.
16 Now, why am I asking this? I am asking not only because this is
17 something which concerns me in the sexual attacks with respect to
18 Mr. Radic, who is my client. If something is a serious violation, then
19 there is something that is not a serious violation, although the
20 violation of any human right is a serious matter. But there must be some
21 differentiation in quality between what is serious, serious violation and
22 just a violation.
23 Now, bearing in mind your very long experience, especially you,
24 Mr. President, in the previous court, I'm sure you will come up with that
25 solution and give it to us.
1 Now, the question arises whether this is in my interests as a
2 lawyer per se or as my lawyer in this case. You will see that when it
3 comes to sexual assault - if I can put it that way, to put it under this
4 heading of sexual assault - there are four individuals who said that
5 Mladjo Radic performed some sort of improper acts towards them. Now, we
6 questioned that he ever did anything of that kind. And I want to say
7 that at the outset, not to have to enter into polemics later on, either
8 with the judgement or the Prosecution's response, et cetera, et cetera.
9 The position of Mr. Radic is that none of that is true, so that there was
10 no acquiescence or anything like that. Let's forget that, and it's not
11 essential in this case either.
12 Now, whether these acts, or rather, what is the question that I
13 wish to put here and now? If we were to exempt rape, leave rape out,
14 would the other four acts represent serious violations of the Geneva
15 Conventions, as is stated, without the act of rape itself? Probably not.
16 However, the second question that comes to mind in this regard is
17 that if once we establish that a camp such as Omarska, it has been
18 established without doubt that there were serious violations of human
19 rights - not only of the Geneva Conventions, but human rights as well.
20 So once you have generally established that there were serious
21 violations, then each and every act of violation which is not a serious
22 violation can become a serious violation because it comes within this
23 general heading of serious violations. So that is the problem that has
24 been bugging me for a number of years now.
25 And one of the judges will remember the Dokmanovic trial where
1 the charges were that he watched for three and a half minutes while
2 people were beaten at Ovcara and we had a lengthy discussion as to what
3 this meant. He had died since and we never learnt about it. Had he
4 remained with us, and it was Judge Mumba, she would probably have brought
5 in a judgement and then I wouldn't have to ask this question. But that
6 is the important question and point, as far as I'm concerned.
7 Now, the third question that I should like to raise once again
8 has to do with the Statute. It is Article 7(4), in fact, of the Statute.
9 We are discussing an indictment here under 7(1) and 7(3) and we have
10 established that there was no 7(1) but that there was Article 7(1)
11 accountability and 7(3), and the Trial Chamber established that, as well
12 as the fact that the Crisis Staff was formed in Omarska camp, and this
13 was established on several occasions, and that Drljaca was a sort of
14 commander. But one thing is incontestable, that the police station
15 department of Omarska quite certainly, not only beyond reasonable doubt,
16 but beyond any doubt at all, has anything to do with the organisation of
17 that camp -- at all, in any way.
18 So we have as something that is incontestable that an order is
19 arriving and that the police station department - and I emphasise the
20 word department because there is nobody else there but the chief, who is
21 Medic [phoen]. All the others were ordinary policemen. So what we have
22 is this: We have the police station department in Omarska which pursuant
23 to an order one morning has to provide security for that camp, the
24 Omarska camp.
25 Now, if we look at Article 7(4) carefully of this Statute, which
1 is in fact the result of the Nuremberg trials that orders do not justify
2 the execution by a subordinate of those orders but can be a mitigating
3 circumstance, I am worried that nobody has dealt with that question, and
4 I think that it is a very important question, especially when we come to
5 the lower-level individuals, down the chain of command. Of course, we
6 can't talk about this at the Milosevic trial, for example, or Sainovic,
7 who is my client, because that is a very high level, top level. But
8 we're now talking about the lowest level, right down the chain of
9 command. And this is referred to in Article 7(4), and so this is worthy
10 of discussion, this matter, I believe.
11 I don't like to try anybody's patience, and so I will end there
12 as far as the Statute is concerned.
13 Now, as far as the appellant's brief is concerned itself, I would
14 like to say that it has been written in a fair amount of detail. I'm
15 sure you have read it. That is normal. And so has the Prosecution
16 because I have read their response, and I have replied to the
17 Prosecution's response.
18 I have an apology to make. At one point it says that the camp
19 was in existence for two months. I apologise. That was a mistake. It
20 was in existence for three months. That is the only typographical error
21 that exists in the appellant's brief.
22 But now it is not my intention to repeat what I say in the brief.
23 I know that you are people who understand what has been written down and
24 don't have to be told things three times. But I would nonetheless like
25 briefly to go through the brief and indicate that some of these five
1 reasons, the five grounds for appeal that I have set out are to be
3 In the first grounds for appeal, the reasons we set out is the
4 right to the accused to a fair trial. Because I consider that the
5 judgement did not reflect that. And I set that out in three parts
6 myself. As a form of criminal liability, the confidential schedules and
7 facts as to conduct. I'm going to say just one or two sentences about
8 each of these three points, because I consider, particularly because I
9 belong to continental law and our source is Roman law, as you know full
10 well. The Yugoslav Criminal Code was shaped according to the German
11 Criminal Code and it is like that today and dates back to the kingdom of
12 Yugoslavia, to the dark periods of Communism and it's true to the present
13 day. But we always link up the identity of the indictment and the
14 judgement, if I could put it that way, and that is a holy Bible for us.
15 We abide by it. So when we deliberate in this way, our deliberations
16 sometimes are like a horse with blinkers on when he is pulling a cart.
17 That is how we view an indictment, like a horse with blinkers on.
18 With all due respect to Your Honours, I have not seen here
19 anything like the identity of the indictment and the judgement and the
20 rapport between the two. Let me digress. The difference between the
21 public at large and we lawyers is that we are well versed in the law and
22 not in the facts. Anybody can see the facts. You go to the cinema, you
23 see some facts presented to you. If we do not adhere to form, if we do
24 not respect form and structure our results will be catastrophic and it is
25 the form and structure which is important and it means that each
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13 English transcripts.
1 individual must know what he is being accused of. Not in any of the
2 amended indictments is there criminal liability as a joint criminal
3 enterprise. No liability for that. It just does not exist. In the
4 introduction it says Keegan said so-and-so. But, as I say, three
5 Prosecution teams replaced each other during the Prcac trial alone.
6 So outside the Statute, leaving aside the statutory questions,
7 which I'm sure you'll solve in the proper manner, let me clarify. Is the
8 indictment important or is it just a general act? And having said that,
9 let me remind you that in the introductory address of the late
10 Dokmanovic, Mr. Niemann, who I otherwise respect, says that the
11 indictment is not there to deal with matters of that kind, but that it
12 should say that the person that I am charging has committed some criminal
13 act and it is up to the Court to determine which. Because if the
14 Prosecutor defines the criminal acts, he runs the risk of going wrong,
15 making mistakes and then having the accused go free. And I think that
16 was what one of your members said at one time.
17 However, pursuant to Rule 50, with the -- or rather, the
18 Prosecution violated Rule 50 by amending the indictment by putting
19 forward the facts and evidence during the trial itself. So we're dealing
20 with Rule 50 and the amendment of the indictment and how this was done by
21 the Prosecutor. And as far as that is concerned, let me end with one
22 sentence, quoted from your own judgement, in which you say the following:
23 The Trial Chamber rather states the basic purpose of an indictment is to
24 offer the accused a description of the acts committed, with sufficient
25 detail for him to be able to prepare his defence and that therefore it
1 must articulate the specific acts that the accused is alleged to have
3 So that is your judgement in the Kupreskic case. And let me
4 follow on in that same vein. In Krnojelac, it says concrete
5 characteristics and precision is what is required of the indictment. And
6 in my own appellant's brief this is what I say myself, because you have
7 legal practice taken from many other case and proceedings.
8 Now, I'd like to say a few words about confidential schedules.
9 And by a decision of the Trial Chamber, and we are appealing on that, the
10 dilemma has been cleared up as to what confidential schedules actually
11 mean, and the Trial Chamber has rendered the decision that it is part and
12 parcel of the indictment. However, the object of our appeals brief is to
13 concretise the indictment and not to mask over its individual parts and
14 to give additional details to the accused of the crimes he is alleged to
15 have committed and for which he has been charged.
16 Because these are the requests, I'm coming back to the Statute
17 now, Articles 18 and 21. But for this Trial Chamber, the previous Trial
18 Chamber whose decision we are appealing, does not deal with that. It
19 does not say anything about the facts that are contained in the schedule,
20 in the confidential schedules and in that way thereby making the rights
21 of the accused. Because as I said, the Trial Chamber is violating the
22 spirit of the Rules of Procedure and Evidence by declaring the accused
23 guilty in relation to certain counts but failing to mention the incidents
24 which are contained in the relevant counts.
25 Then we again come to evidence about the consistency of
1 behaviour. This is something that continental law does not recognise but
2 the Anglo-Saxon law does, and I respect that. What are we doing? We
3 have Witness AT. The trial says: The alleged rape of AT was not
4 mentioned in the amended indictment because of fairness to the accused,
5 you cannot introduce charges against him in the middle of a trial without
6 prior notice. For us, this was like a stone dropping from the sky. I
7 would like you to look at the indictment under which Radic was arrested.
8 He was charged with the rape of one single person, Witness A, of which he
9 was acquitted here.
10 To this very day, there is footage on television, Dutch, Bosnian,
11 all televisions, that this same witness in another case, her testimony
12 was accepted and she is saying that she was raped. Even Judge Riad
13 participates in this TV footage. This is something that the Trial
14 Chamber did not believe and this should be a mitigating circumstances.
15 And the Prosecution did not object to that, even though they insisted in
16 the Tadic case and insisted on that in this case here. And we have case
17 closed. The witness is not held criminally liable, and the Bosniak
18 intelligence service then finds a new witness. And now we will come to
19 the witnesses later.
20 But here again I'm talking about the legal aspects. Facts is
21 something that we should not discuss with you. Let's discuss legal
22 issues now, and above that we are -- in that matter we have above just
23 lay people in this legal sense. We are talking about Rule 93(B) now.
24 What does it say? It says that we should be informed about what is going
25 to happen, that the client should be informed about what is going to
1 happen. Do you know why this was not done? Because the Prosecution did
2 not even know what they were going to use Witness AT for and that is why
3 they didn't do that and simply 93(B) was not respected. These are
4 violations of the Rules of Procedure, which would have an effect under
5 Article 25 of the Statute to these proceedings.
6 I'm not saying that the Trial Chamber was biased towards the
7 Prosecution. Why would it be so? I have a very esteemed opinion about
8 each single member of the Trial Chamber and their contribution to the
9 case is priceless. But, unfortunately, are we making something here that
10 we have unfortunately in our law, let us save the indictment at any cost?
11 So that as far as consistency, consistent pattern of conduct is
12 concerned, this rule is being violated. And once you violate the form,
13 then the decision cannot be proper. Which means that I am claiming that
14 in accordance with Rule 93, what was violated is violated the right of
15 the accused to a fair trial, as well as the Rules of Procedure. And
16 therefore, truth was violated as well.
17 Our next ground for appeal, I'm going to deal with this in a
18 summary fashion. In my second pattern, I talked about the form of
19 criminal responsibility, and I'm speaking about this in two parts, joint
20 criminal enterprise - it's difficult to translate into Serbian - and the
21 role of the accused in this joint criminal enterprise.
22 Now again we're talking about the question of theory, according
23 to the position of the Defence. I'm not claiming that we are right, but
24 this is my opinion, this is our take. The Trial Chamber must prove or
25 show evidence that would demonstrate that the accused was part of that
1 joint criminal enterprise that the accused Mladjo Radic was a part of
2 that, and as a co-perpetrator at that. However, I did not find anything
3 like that in the judgement. None of us normal, sensible people could say
4 that Omarska is something that everyone has to be ashamed of. Of course,
5 this is -- we're not denying that, and this is the opinion of this Court
6 as well. We're talking about Omarska, Vukovar, and other places. But do
7 you know what the most terrible injustice is? You are qualified to be
8 just. We're talking about a completely different type of people who were
9 involved in those things.
10 What I would like to say, I would give you my reasons why these
11 things cannot apply to the accused. You know very well from written
12 information that Omarska was founded and established by an order of Simo
13 Drljaca. Is it difficult, then, to understand what a small police
14 department, a small village police department, is? Mladjo Radic had the
15 lowest possible police rank. There was nobody below him. He was just a
16 plain patrolman. They called him Krkan. He liked to eat. That was his
17 nickname. And he lives in a village where probably the biggest problem
18 is if somebody steals a chicken or gets drunk in a cafe.
19 I'm not separating him in the sense that I wanted to imply that
20 everybody else is bad. But what I'm saying is that a war has broken out.
21 Nobody wanted this war. Some of them were even married to these
22 Bosniaks. This war broke out that nobody wanted, and a person called
23 Simo Drljaca, who was a nothing before that, forms some kind of camp, and
24 they are ordered to go there. Would you please look at the interview of
25 Mladjo Radic, and you will see typical things: I came to the bus station
1 and they told me today you are going to Omarska. So can we not establish
2 the physical and psychological state of that man, what his state of mind
3 is, what is his position, what is he doing at all? And then suddenly we
4 pushed him into something in order to justify some kind of indictment.
5 Well, we probably do have people who are responsible for
6 something like that. We have Zeljko Meakic, who was the head of
7 security, and this was finally established. When he was arrested, he was
8 the commander of the camp. When they were arrested he was the commander
9 of the camp. He was even charged with genocide, which was later dropped,
10 but I just wanted to remind you of that. But not to dwell on this too
12 We have all of these things that were said, bad water -- the
13 water is still bad. I've even brought samples. The water that they
14 drank in 1992, they're still drinking today. It's a difficult question
15 that there were insufficient quantities and that the living situation was
16 different, but the actual quality of the water is the same now as it was
18 I stated at the beginning and I stated that consistently and the
19 Trial Chamber accepted that there was an uncontrolled willfulness
20 prevalent in the camp. And this is clear.
21 And then we must understand that if there was wilfulness, if
22 anybody could beat or kill whomever they wanted, how is it possible for a
23 police officer of the lowest rank to participate in something like that?
24 I'm stating this on purpose. I absolutely accept the position of the
25 Appeals Chamber about the three categories required for a joint criminal
1 enterprise. There is no dispute about that. That is how it is. It is a
2 decision that you made, and in the same way I'm asking you to decide on
3 these other issues.
4 But where is Mladjo Radic in all of this? We are discussing all
5 these matters. They don't even go for aiding and abetting, as far as
6 Mladjo Radic is concerned, but they go directly to him being a
7 co-perpetrator. Where is the explanation for that? There is no
9 The first conditions need to be met that he's a co-perpetrator,
10 that is, direct intent. What kind of a direct intent can we talk about?
11 He's given an order and then he's told you'll be there for three or four
12 days. And this is what the Trial Chamber accepted. When they accepted,
13 they went there for two or three days, or three or four days, but it
14 actually ended up lasting for three or four months. So the first one is
15 direct intent.
16 For the second case --
17 THE INTERPRETER: The interpreters ask the counsel to read that
18 back again. Thank you.
19 MR. FILA: [Interpretation] So what is his position? There is
20 this film that they're constantly showing against him where you can see
21 him with a machine-gun across his chest. It just indicates that he is a
22 plain police officer, and this is what we are claiming from the
23 beginning. Which other leaders did you see with a picture of him taken
24 at a guard post with a weapon? You know that guards usually are at guard
25 posts. We didn't see Simo Drljaca have a picture of himself taken in
1 this way.
2 And now he says that an aider, an abettor can be somebody and
3 they can become a co-perpetrator if this act lasts for a longer period of
4 time or if he personally participants in it.
5 If we leave aside the rape, with all due with respect to the
6 Prosecutor who does not wish to have anything left aside, but I still
7 would like to leave certain things aside in my explanation of the appeal
8 grounds. So if we leave that aside, what is it that stays? And we will
9 discuss this later.
10 JUDGE SHAHABUDDEEN: Mr. Fila, you mentioned a second case, and
11 at that point the interpreter asked you to read that back again. What
12 did you have to read back? You don't know it.
13 MR. FILA: [Interpretation] No. Okay. No problem.
14 [Interpretation] Well, it doesn't matter. We will read something
15 else. Never mind.
16 And now the Defence would finally like to say that the Trial
17 Chamber, in spite of these three conditions, did not say what is the
18 participation of the accused Radic in all of that? What part did he play
19 in all of this? In the Krnojelac case, the second Trial Chamber, Trial
20 Chamber II, said that the responsibility for common purpose is required
21 evidence that the accused is implicated to a considerable degree in the
22 implementation of such acts. Perhaps he is, and perhaps he's not, but
23 that is not said explicitly. And if it is, if he did, then it should be
24 stated. So this is the position that I quoted. There's no need for me
25 to go into it again.
1 So allow me to conclude. The Trial Chamber, deciding on the
2 guilt of the accused Radic for persecution, failed to determine the
3 pre-conditions as they were given in the previous paragraph. They do not
4 determine the existence of agreement, shared intent with those committing
5 the crime, together with those who are committed that [as interpreted].
6 And who did the persecutions? The Crisis Staffs, Simo Drljaca, and these
7 were just the people who were implementing it, in the same way as cooks
8 were implementing it. I cannot determine the difference. Radic's wife
9 was a cook in that camp; she was baking bread and making food and taking
10 it up there. Had she not taken food up there, they would probably have
11 left their guard posts and these others would then have escaped. But we
12 cannot go that far. I know the Munchausen case. My father was there for
13 two years. I know what this looks like, and I know that it is terrible.
14 But there has to be a limit somewhere. We must place a boundary
15 somewhere. And that is, with all due respect, your task specifically for
16 us to -- to tell us what the boundaries are. From here to here, we have
17 grave violations of the Geneva Conventions, and from here to here it is
18 not. We have local courts, thank God, and these things then can be tried
19 over there.
20 I believe that the Trial Chamber erred when they held that the
21 participation of Radic was assessed as considerable. First of all, he
22 had to have been a part of that in the military sense, as a
23 co-perpetrator, because that is what he was charged with and then his
24 acts also need to be significant. And again, I do not see that
25 significance. I reiterate that for as long as I'm talking about this, I
1 ask you to leave aside the rape. So in a part of my submissions, I'm
2 making him equal to Kos.
3 I did not manage to see it. It is nowhere explained in the
4 substantial judgement what is the accused Radic's substantial
5 contribution in these acts, including ethnic cleansing, killing, but also
6 persecutions, that for sure. And then I must conclude that the Trial
7 Chamber, the standards that it set applied in the wrong way, and the
8 standard was to determine or establish considerable participation in the
9 joint criminal enterprise. And I did not see that there in the
11 The third ground of appeal are persecutions. I did say a lot
12 about that already, and there's no need to say much more because we will
13 all be dealing with that issue. I allow that you've already heard that
14 from one Simic. You will hear about it from the other Simic. I share
15 their opinion and therefore I can skip the next 50 pages of my appeal.
16 The fourth grounds, and I mention that on page 31, is that the
17 factual basis was wrongfully established for grounds number 4, that his
18 participation in the acts in Omarska were greater than they were and that
19 also his role in connection to what the other guards perpetrated was also
20 wrongfully perpetrated. It was established that inmates were killed and
21 ill-treated by anybody, whoever wanted to do so, without any
22 encouragement from anybody else. People did not listen to his orders,
23 Radic's orders.
24 Conditions in the camps and how it all was, the Trial Chamber
25 also itself found that this had nothing to do with Radic, and so I don't
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 know why it would be significant what -- what the significance of his
2 acts would be within the whole framework of the camp if these things are
3 not considered to be important.
4 So my position is that the Trial Chamber wrongfully concluded
5 about the role of Mladjo Radic in the Omarska camp, as I have already
6 said several times. And now I would like to move to the most important
7 point of my appeal.
8 As you can see, I'm trying to spare you from too many details.
9 With the liability under 7(3) of the accused, we contested this
10 because we said that it wasn't clear whether he had effective control
11 over the guards. And in dubio pro reo, he was freed of that charge.
12 However, if he did not have that, what separated him from the other
13 guards? What set him apart from the other guards? Because when you
14 answer one question, you must answer the next one. If the Trial Chamber
15 found that he did not have any control, then how was he different from
16 the others? And this brings me to my starting point, that the
17 witnesses, numerous witnesses asserted that Mladjo Radic was a guard like
18 everybody else, and the Prosecution found that the others should be
19 tried, if they are brought to trial, in their own country and not be
20 brought to the Tribunal here.
21 I feel the need to say this now, and it refers to Mr. Radic's
22 assistance to certain detainees. There's a story going round among the
23 detainees and among the Defence counsel that it was dangerous to try and
24 prove before this Trial Chamber that somebody helped somebody, because if
25 they didn't help anybody out, then they say that he was inhuman because
1 he didn't help anybody out. Now, if he did happen to help somebody out,
2 then this is a grievous circumstance because it means he had authority to
3 do that. So it's a very dangerous point. You have to look at things
4 black and white, in a black-and-white way, and as we all know, life is
5 never black and white. We have direct and indirect evidence, and you'll
6 see this from the testimony of all witnesses who said that he did indeed
7 help them. One from Australia was heard by a Prosecutor, Mr. Niemann.
8 He said that -- this witness said that he had saved his life, in fact.
9 The number of people who Mladjo Radic helped in one way or another
10 amounts to about 150.
11 Now, why didn't he help everybody? Well, if every guard helped
12 150 detainees, and there were 20 to a shift, and there were never 3.000
13 people in Omarska camp at any one time. So if everybody had just helped
14 150, that's no small number, is it, and does that make matters worse?
15 When everybody who was helped, they said he did it secretly, not through
16 force of his own authority, but clandestinely so that other people
17 wouldn't see. You have a detail, when he brings in bread, for example,
18 he leaves the bread there and when he leaves, another guard takes up the
19 bread. Is that that famous principle of authority, the term authority
20 that prevails here? Because we're afraid of saying that people helped
21 each other because in doing so we would recognise the command structure
22 in the camp.
23 And we saw that he -- when he did assist people he never assisted
24 them pursuant to orders. He did it indirectly. Witnesses would say that
25 he helped them as a friend, as a man. He did what he could to make their
1 lot better.
2 I felt the need to tell you this along with something else. You
3 can see that the term Krkan's shift is used. Don't forget one more
4 detail which is a very important detail. He's an active-duty policeman.
5 He is the eldest active policeman, and he served in all the surroundings
6 villages, Ljubija and whatever. Everybody knew him. He was an
7 active-duty policeman, as the others were reservists or whatever. And
8 that's why they referred to his shift as Krkan's shift because they
9 recognised him. He recognised the people, the people recognised him. If
10 they couldn't recognise anybody, those people are not here today. They
11 weren't put on trial here.
12 And finally, the most important point, or rather, it's not the
13 most important point, but I'd like to say it nonetheless. We cannot
14 believe everybody a priori, of course. I indicated Witness A's
15 testimony, for which he was imprisoned, and she said on television that
16 she was raped. When she was on television, she stated her full name and
17 surname. Here she was a protected witness and was assigned a pseudonym.
18 But we have ascertained that the shifts lasted -- the court ascertained
19 that the shifts lasted 12 hours. And then he says that perhaps Hase Icic
20 cannot remember how long the shifts were. How wouldn't he remember when
21 he saw -- if he saw someone in the morning and saw him then again in the
22 evening? Of course he remembers but he didn't see Mladjo Radic in the
23 evening if he saw him at all.
24 And shifts could not have lasted longer than 12 hours.
25 Then we have witnesses who speak about the fact that everybody
1 could do what he wanted over there. And don't forget that there were 20
2 people to a shift and very often they didn't know each other, these
3 people who were working on the shifts together. And the shifts and the
4 composition of those shifts was not determined by any of the accused, if
5 anybody who turned up was just there and did his job.
6 Now, before I go on to the question of rape I should just like to
7 raise one basic question once again, and that is that the Trial Chamber
8 quite simply failed to establish, and that is my main objection, which
9 acts Radic should have undertaken and did not undertake, or rather,
10 whether he was able to do anything. If we have that there was general
11 anarchy reigning in the camp with everybody doing what they saw fit. So
12 if he failed to do that, you cannot hold him responsible for what the
13 guards committed, guards whom he never even saw from his vantage point
14 and his shift. And I have already explained in greater detail why he's
15 not responsible for the conditions that prevailed in the camp.
16 And this brings me to something that I hold dearest to my heart
17 when it concerns my client, Mr. Radic. It is least important for him
18 what you're actually going to decide with respect to his role in Omarska.
19 He is not proud of having been there. None of them are proud of having
20 been there as you were able to see, nor does he want to shirk
21 responsibility for being there. However, placing his destiny and fate
22 before you, let me repeat that he has three sons, he has a wife. He was
23 threatened that they would be sent to the army and then be killed. And
24 he asked to be replaced because he saw people whom he had previously
25 worked with being brought to Omarska. He went to Simo Drljaca, and Simo
1 Drljaca sent him packing and said, "Do your job." So he felt that
2 something was amiss.
3 But that is not the essential point here. What is essential,
4 both for him and for myself, is that we prove to this Trial Chamber that
5 there was no rape concerned. They broke his shoulder when they arrested
6 him. He is a permanent invalid. He suffers from diabetes; he is being
7 given an insulin [as interpreted] today. But all that is, once again,
8 not essential. What is essential is face, to preserve face. In a war,
9 people fight, but people do not rape in a war. So I entreat you that you
10 pay special attention to that part of my appeal.
11 I should like to ask you to scrutinise very well, in minute
12 detail, to see how it is possible for violations in the proceedings --
13 how to force proceedings along the lines of him being proclaimed guilty.
14 And when I spoke of the Statute, I spoke of those four individuals and
15 whether there was anything there or not.
16 But Witness K, let's look at the testimony of Witness K. In
17 1993, she was interviewed and said no. She said to the papers no. She
18 kept saying that the commander of Keraterm security, Dusko Sikirica,
19 committed rape. But nobody believes her, neither the Prosecution nor the
20 Trial Chamber. (redacted)
23 (redacted) . But of course you, as a court of
24 law, will be able to have access to that transcript.
25 And suddenly in 1995, she thinks of saying something like that,
1 of claiming it. And then these hallucinations begin. She says the
2 morning, then she says the evening, then she says it was up there, then
3 she says it was down here. Then she says, "Witness Vinka brought me,"
4 whereas she said that he was a good man. And she said that he said --
5 that he was a good man towards Muslims and Vinka is a Serb. So why would
6 he -- would his conduct towards her have been bad if he had
7 discriminatory intent? There is no discriminatory intent towards members
8 of one's own ethnic group. That's quite another story. Vinka was
9 proposed as a witness to say that she did not take her to Mladic -- to
11 You had the whole model of Omarska camp before you. You saw that
12 investigators beat up people throughout the day. So how could this man
13 have raped with all these 200 people around or 200 people? You can see
14 the video footage. She thought all this up. She conjured it all up.
15 Because in preparing this, we were able to go through her biography to
16 establish that she was mentally deranged, that she was taken to Court
17 several times, that she spent her time stealing television sets, and that
18 is why -- whereas she was brought into Court [as interpreted]. So what
19 can I find in the space of five or six days, given those circumstances?
20 There are one or two differences, they say. What do you mean,
21 one or two differences? Take a look at each of her statements. There
22 are no two statements that are the same, and that is the key point. That
23 is why I ask you to scrutinise, to look into it carefully. Give him 200
24 years, sentence him to 200 years imprisonment if you like but he has to
25 live with this. He has three sons, he has a wife who visits him. So if
1 he did commit that act, he should be held responsible. But what if he
2 didn't? And he was arrested because of A. And he was -- Witness K gave
3 testimony in 1993 in the Office of the Prosecutor, and says that, no,
4 this did not happen in Omarska. In 1995, he says to Mrs. Brenda Hollis
5 that nobody had asked him anything along those lines. We found that from
6 1993. And then she said, well, that was something else again.
7 So the Court says she was ashamed. How could she be ashamed if
8 she says -- ashamed of having been raped by Mladjo Radic if she said that
9 Sikirica raped her over and over again?
10 THE INTERPRETER: Could the speaker please slow down.
11 MR. FILA: [Interpretation] We say that one third of sentencing
12 for rapes are not always in place, but we also know that out of shame,
13 people don't report rapes. So there is no woman that has been raped and
14 is proud of it. She always feels shame.
15 But how come she is not ashamed because of Keraterm and suddenly,
16 in 1995, she states that this happened to her in Omarska and that it
17 happened once and then turns this round and round. She says it was in
18 the morning, then she says it was in the evening, it happened like this,
19 it happened like that. And the Trial Chamber found that her testimony
20 was unreliable generally. There is no criminal act that I hate more than
21 the crime of rape, believe me when I say that. That is the most
22 atrocious crime. And if it is done with discriminatory intent, then it
23 is even more horrendous. But we have no discriminatory intent here.
24 Just remember all the stories that the witness said. She said it
25 was like this, then she said it was like that, and then it was
1 established that she had construed the whole thing.
2 In each of Witness K's segments and parts of her testimony, there
3 are things that were impossible. In 1995, she said -- she told Brenda
4 Hollis that she wasn't raped. Then she said she was raped at night, then
5 she said she was raped during the day. Then in answer to all the
6 questions she says, "Well, I don't know, but I suppose that what I said
7 to Ms. Hollis was right."
8 So rape is not an act you can forget. It is not the same as
9 whether I ate an ice cream three or four days ago. So that from the
10 Sikirica case, and I'm saying this because this happened subsequently,
11 the Keraterm judgement came subsequently, and we can see clearly there
12 that nobody believed her.
13 The Prosecution presented the arguments saying that you can
14 believe one and not another person, but this is new. Keraterm didn't
15 believe her. And you'll be able to see that in Sikirica plea agreement.
16 In the document, all the details are there.
17 And as I've already said, the testimony of Vinka Andzic is
18 manipulated. We only asked her one thing, "Did you take this woman out
19 or not?" She said no and that's it. And that's the whole value of her
21 We now come to Witness AT, once again a legal question, for the
22 second time, a legal question brought up for the second time. What does
23 that mean? What should it mean? Does it mean that the Rules of
24 Procedure and Evidence must be applied --
25 JUDGE SHAHABUDDEEN: May I ask you--
1 THE INTERPRETER: Microphone, please, Your Honour.
2 JUDGE SHAHABUDDEEN: May I ask you very kindly to attend to the
4 MR. FILA: [Interpretation] Yes. I've almost finished. I've left
5 this to the end. Otherwise I'll be repeating myself.
6 So with respect to Witness AT and an attempt at the witness -- at
7 the rape of Witness J, let's look at how this has been presented. And
8 finally, the last point is the question of the fact that Witness J tells
9 the same story where two men are concerned. She applies it to two
11 Rule 93 was not applied properly, once again. And finally, and
12 that will be my conclusion, as far as the sentence is concerned, I have
13 set it all out in writing and I think it would be superfluous for me to
14 explain the mitigating circumstances that you will find set out in the
16 Thank you for hearing me out. I wasn't going to take an hour,
17 but you know what lawyers are. I seem to have taken longer. Thank you.
18 [Appeals Chamber confers]
19 JUDGE SHAHABUDDEEN: Judge Weinberg de Roca would like to ask
20 you --
21 THE INTERPRETER: Microphone, Your Honour, please.
22 JUDGE SHAHABUDDEEN: Judge Weinberg de Roca would like to ask you
23 a question.
24 JUDGE WEINBERG DE ROCA: Thank you, Mr. President.
25 Mr. Fila, you mentioned that the accused should often be tried by
1 the local courts. And in this case, is this because the Yugoslav Penal
2 Code rape involves permanent and lasting injury of the victim and
3 simultaneous use of force and threat? Is this why you're suggesting that
4 rape was not -- did not occur in this case?
5 MR. FILA: [Interpretation] No. No. No, heaven forbid. No.
6 Don't underestimate my powers of reasoning, please. If he did commit
7 rape - if, if - then you are responsible for finding him guilty. The
8 position of Mr. Radic is that he did not commit rape. If he did, of
9 course, you are the competent authority to judge. Now, as triers at a
10 local level are concerned, the reason that I mention that is that the
11 fact that the Prosecution gave up on the other 13, on trying the other 13
12 guards, was this: I said that if some criteria was set, then Mladjo
13 Radic was just like these other 13, and a man named Pavlic said that he
14 had owned up and said that he had killed a man. None of these people
15 have said that they killed anybody or are here for having killed
16 somebody, which is the gravest crime, of course, with rape. So my answer
17 to you is no, no, that is not what I claimed. Thank you.
18 JUDGE WEINBERG DE ROCA: Thank you, Mr. Fila. Also you
19 concentrated very much on the testimony of Witness K, which you examined
20 when the trial. But there were also other witnesses, Witness J, Witness
21 F, Witness Susic, and Witness Cikota. You didn't mention those but only
22 spoke about Witness K. Is there a specific reason?
23 MR. FILA: [Interpretation] The reason is that in the beginning,
24 when I spoke about the Statute, I said that as far as I'm concerned, the
25 fact -- what those four persons are saying, as far as I'm concerned, is
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 not true because that is what Radic claims. This is one thing. But if
2 it were true, without the rape of Witness K, these are not grave
3 violations of international law, according to my opinion. And this is
4 the decision that you need to rule on, independently looking at it. I
5 hope that I was clear. And this is why I did not deal with this matter.
6 If you were to establish - and I hope that you will - that Witness K was
7 not raped and that AT cannot be considered to be typical conduct, because
8 that was not presented properly, would you believe that then there was an
9 occurrence of a grave violation of international humanitarian law in
10 relation to what those four other witnesses said independently, out of
11 context? And this is why I wanted you to clarify Article 2 of the
12 Statute. What these grave violations are. Because if somebody had said
13 what the grave violations are, there must have been violations which were
14 not of such a grave nature.
15 This is why I skipped over this in less detail. I don't know if
16 this answer is satisfactory.
17 JUDGE WEINBERG DE ROCA: Thank you very much, Mr. Fila.
18 JUDGE SHAHABUDDEEN: Mr. Fila, I am obliged to you for your very
19 stimulating submissions. I would like to benefit more from your thinking
20 than time allows. So I'll confine myself to two little areas.
21 Now, Judge Weinberg de Roca adverted to your submissions
22 regarding Witness K. Now, just suppose, just suppose that the Bench were
23 inclined to agree with you that there was no rape in the case of that
24 witness. Would that be sufficient to allow the appeal, or would we have
25 to go a further step and to say that, as you do, the Appeals Chamber must
1 be satisfied that no reasonable tribunal of fact could have found as the
2 Trial Chamber did find? Would your submissions go as far as that? Would
3 you say that not only didn't the evidence warrant the conclusion that
4 rape occurred, but that no reasonable tribunal of fact could have so
6 MR. FILA: [Interpretation] Allow me to respond, Your Honour. I
7 don't think that you will like the answer. I don't understand the term
8 "reasonable trier." Does that mean that I need to claim now that Judge
9 Rodrigues, Judge Riad, and Judge Wald were unreasonable triers? That
10 would be terrible. I hope that you will not tell me that I am
11 unreasonable, even though you have every right, because you are a Judge.
12 I don't understand the sense of that term. I was there. We all saw
13 Judge Rodrigues off. So can how can I look you in the eye and say you
14 did not reach a reasonable decision -- and I know your entire curriculum
15 vitae. I don't understand this criterion. I don't get it.
16 But it's part of continental law. If I had written in an appeal
17 that a judge had reached an unreasonable decision, that would be contempt
18 of court, where I come from. So this is something that I will not say.
19 But I will say that such a decision could not have been reached. But I
20 will not say that this was an unreasonable decision. Thank you very
22 THE INTERPRETER: Microphone, Your Honour, please. We cannot
23 hear you.
24 JUDGE SHAHABUDDEEN: I understand your protestations against the
25 concept of a judge being unreasonable. Nevertheless, this concept
1 occurs, as you well know, in the legal systems of many countries, one
2 applies a test as to whether a reasonable trier of fact could have come
3 to that --
4 MR. FILA: [Interpretation] Not in my book, Your Honour.
5 JUDGE SHAHABUDDEEN: And I could give you examples, if I were
6 minded to and if time allowed. But unfortunately we are prisoners of the
8 Now let me turn to a second area in which I need the benefit of
9 your help.
10 MR. FILA: [Interpretation] If you permit me, Your Honour, I will
11 tell you in one sentence. What I am concerned about is the fact that it
12 was definitely established that Witness A was not speaking the truth and
13 that we have switching of issues here. This is what is concerning me
14 here. Not unreasonableness, but switching of facts. While the witness
15 who claimed in two proceedings that she was raped is not objecting. So
16 this is the most that I can provide by way of an explanation. Thank you.
17 JUDGE SHAHABUDDEEN: Let me see if I can benefit from your
18 thinking in the short time that remains. So I turn to the second area of
19 curiosity. You were talking about Mr. Radic, and you said he had the
20 lowest possible police rank. Now I can see an argument to the effect
21 that the rank of the accused has a certain relevance. If the charge
22 against him is based on command responsibility, you want to show he had
23 some authority. But would you say the argument rings as true if the
24 charge against him is based on joint criminal enterprise?
25 MR. FILA: [Interpretation] No. The reason why we mentioned his
1 low rank is that I believe that when one enters a joint criminal
2 enterprise, enters into a joint criminal enterprise, I'm not imagining
3 this to be like the Knights of the Round Table where we sit and we
4 conceive of a joint criminal enterprise. This is not something that you
5 see in a cartoon. I mean, it's something that you can accept later. But
6 the required degree of volition and degree of intelligence, and we have
7 findings here by psychiatrists and psychologists. This is a man who is
8 obedient. He is not aggressive. Just see how he was described as a
9 family person: The father of three sons, spent his whole life without
10 advancing in his profession. He's just a merry person. So such a
11 structure of personality to me does not fit into this type of enterprise.
12 So this is the sense in which I referred to it. This personality type
13 does not fit into that kind of activity. And perhaps this applies to the
14 other two as well. Thank you very much.
15 JUDGE SHAHABUDDEEN: Thank you, Mr. Fila. Thank you very much.
16 Now -- yes, Mr. Prosecutor.
17 MR. CARMONA: Yes, Your Honour.
18 THE INTERPRETER: Microphone, please.
19 MR. CARMONA: Your Honours, I just wish to bring a particular
20 matter to your attention, and it concerns particularly part of the
21 submission of my learned friend with regard to confidential information,
22 with regard to a particular witness. I think it is an irrelevant fact,
23 may warrant redaction. Because I do recall quite, quite lucidly that, at
24 trial, applications were made by the Defence to adduce evidence with
25 regard to the medical record of certain witnesses and this was rejected
1 by the Trial Chamber. And this matter in fact was not pursued.
2 The Prosecution is deeply concerned that attempts have been made
3 by the bar table to adduce evidence based on private conversations
4 emanating thereof. And in the circumstances, we are requesting, in fact,
5 that the Court consider redaction of that particular area. I didn't want
6 to interrupt my friend because he was in full flight. But I thought the
7 exigencies of justice demand that the witness's confidentiality is
8 maintained and maintained resolutely in the circumstances.
9 JUDGE SHAHABUDDEEN: Yes, Mr. Fila.
10 MR. FILA: [Interpretation] First I would like to thank you for
11 not interrupting me. That is very kind of you. The second thing I
12 wanted to say is that this is not private information that we're talking
13 about. If you look properly, you'll see that there was a meeting between
14 the Trial Chamber and the Prosecution about the state of health of the
15 person that we referred to. That was an inter partes meeting that we
16 discussed. And you can find that. Ms. Hollis probably has that matter
17 covered. And you will see. Ms. Hollis initiated this matter, not me.
18 JUDGE SHAHABUDDEEN: Is there any question of confidentiality
19 which is involved?
20 MR. FILA: [Interpretation] No, no. There was a meeting between
21 the Prosecution and the Trial Chamber, and you have that on this matter.
22 This is what I mentioned. But I did not mention the actual state of
24 JUDGE SHAHABUDDEEN: That evidence is on public record, in the
25 normal way?
1 MR. FILA: [Interpretation] I think that it is not. No, it is
2 not. But later --
3 JUDGE SHAHABUDDEEN: What Mr. Carmona is suggesting --
4 MR. FILA: [Interpretation] Mr. Carmona was not there. I received
5 this information through private channels. There was a meeting where
6 there was a question about this, and there was a Trial Chamber decision
7 whether this witness can or cannot -- I don't want to discuss any more of
8 it. Perhaps Mr. Carmona doesn't know all the information referring to
9 this matter. But Ms. Hollis is still here. Perhaps she would be able to
10 inform you.
11 MR. CARMONA: I am indeed privy to the said applications that
12 were made by counsel. I am -- I don't have it in my possession. But in
13 any event, what I'm concerned about, and my friend obviously is aware of
14 it, that this particular information would have in fact been inter partes
15 and was not public information.
16 JUDGE SHAHABUDDEEN: Yes. Mr. Fila, what is being suggested is
17 that the references to this incident be redacted from today's transcript.
18 It wouldn't affect the outcome of the case, in any event.
19 MR. FILA: [Interpretation] I have nothing against that. I just
20 reacted to this point that it was a privately received information. No,
21 it is not. I could not privately find out about such a meeting. This is
22 what I wanted to clarify.
23 JUDGE SHAHABUDDEEN: Madam Registrar, would it be possible to
24 make the redactions?
25 THE REGISTRAR: Yes, Your Honour. We could redact it. But
1 it's -- I believe it may be too late to redact it from the transcript
3 JUDGE SHAHABUDDEEN: Would it be possible for you to redact as
4 much as possible?
5 THE REGISTRAR: Yes.
6 JUDGE SHAHABUDDEEN: Yes. All right.
7 MR. CARMONA: I'm much obliged.
8 JUDGE SHAHABUDDEEN: On that note, we will take the adjournment
9 until tomorrow at -- what time? At 9.30. 9.30 a.m. tomorrow. Thank you
10 very much.
11 --- Whereupon the hearing adjourned at 3.59 p.m.,
12 to be reconvened on Wednesday, the 24th day of
13 March, 2004, at 9.30 a.m.