1 Wednesday, 24 March 2004

2 [Appeal Proceedings]

3 [Open session]

4 [The appellants entered court]

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

6 JUDGE SHAHABUDDEEN: Good morning to you all. The sitting is

7 now resumed. We should first announce that for technical reasons, it has

8 not been possible to give effect yesterday afternoon to the redaction

9 proposal. I don't understand too well the technicalities involved, but

10 the way it looks to me is this: that you have a 30-minute interval in

11 which to make the redaction, and after that the only redaction possible

12 is that the offending paragraphs or passages will be redacted for further

13 outward transmission, and that will be done this morning. Okay.

14 So now we give the floor to counsel for Mr. Kvocka. That is to

15 say, to Counsel Mr. Krstan Simic.

16 MR. K. SIMIC: [Interpretation] Good morning, Your Honours. I am

17 going to use my hour and a half by focusing on the most important

18 questions which are dealt with in detail, otherwise, both in the

19 appellant's brief as well as later on in response to the Prosecutor.

20 As the Presiding Judge noted yesterday, the Trial Chamber

21 condemned Kvocka for persecution, killings and torture, accountable

22 according to Article 5(3) of the Statute of the International Tribunal

23 against persons listed in the confidential annex to the indictment.

24 The Trial Chamber rules that the basis for Kvocka's liability and

25 responsibility was as co-perpetrator in a joint criminal enterprise, and

1 in that regard, in its judgement it underlined at that Mr. Kvocka did not

2 personally take part in a single criminal act or, rather, in any act

3 which would lead to a criminal act being committed for which he was

4 charged and for which he was pronounced guilty.

5 I should also like to state at the outset that my colleague took

6 the floor yesterday, Mr. Fila and Mr. Jovan Simic, and they dealt with

7 certain questions. They raised certain issues, and Mr. Fila said that --

8 announced that I would be speaking on other matters today here before

9 you.

10 Regardless of how this has been put forward, certain grounds in

11 the appellant's brief are appellant's brief boils down to two basic

12 grounds for appeal and that is that the Trial Chamber in bringing in its

13 judgement erred in the facts. That is the first point. And second, that

14 the Trial Chamber also made legal errors in finding my client guilty on

15 the counts relevant to that.

16 We therefore consider, Your Honours, that these errors fulfil the

17 standard which are provided for by Article 25 of the Statute of the

18 International Tribunal and also the standards which were established to a

19 certain extent through the practice of this Tribunal in trials held and

20 proceedings held here so far. Of course, we shall speak at greater

21 length on that matter in due course.

22 I should now like to look at the standards required for

23 Article 25 of the Statute. When we come to the matter of legal errors,

24 we support the decision made in the Furundzija case, and on that occasion

25 let me just remind you briefly that the Trial Chamber -- or, rather, the

1 Appeals Chamber -- in that case found that the Appeals Chambers as the

2 supreme interpreters of law before this International Tribunal can, by

3 virtue of their official duty, put right certain errors of law which

4 occur in first-instance judgements. Of course, this implies and

5 understands that the errors are of such intensity that they led to a

6 miscarriage of justice and an erroneous finding of guilty.

7 When we deal with factual errors, errors of facts in establishing

8 the facts, that is a slightly more delicate and sensitive question and

9 slightly more complex as well. This question was broached yesterday by

10 Mr. Fila, but I don't think Mr. Fila rounded off what he wished to say

11 and elaborated this very complex question as fully as he could have done.

12 A "reasonable judgement" was the term used, and I think that the standard

13 for reasonable judgement is just a synonym which is a guideline telling

14 the Appeals Chamber how it should assess and weigh up the findings of the

15 Trial Chamber with respect to facts.

16 Let me say in this context that the Appeals Chamber in the

17 Kupreskic case also dealt with this question, and on that occasion it

18 concluded the following, and I am going to quote. The Appeals Chamber on

19 that occasion found the following, and I quote: "The function of this

20 International Tribunal is to decide upon the guilt or innocence of

21 individuals in keeping with the standards of procedure and evidence which

22 were followed by all the civilised countries of the world."

23 The second principle which was stressed, in order to show the

24 full complexity of the subject matter, is also something that the Trial

25 Chamber affirmed or Appeal Chamber affirmed through a conclusion that

1 reads as follows: "The Tribunal does its best to follow the principle

2 established by the first prosecutor at Nuremberg, that the events must be

3 borne out by reasonable proof and evidence"; which means that Kvocka and

4 his Defence team sees the notion of the standard of reasonable as a

5 synonym and that it should be viewed through the highest achievements of

6 modern law as we know it and as the legal systems of the world know it.

7 And that is why my colleague Mr. Fila should not feel that Judges passing

8 that type of judgement are not reasonable.

9 In another finding of the Appeals Chamber, I think it was in the

10 Tadic trial, the Tadic case, the Trial Chamber or Appeals Chamber

11 concluded among other things, and I'm quoting: "It is essential to say

12 that two Judges acting in a reasonable way can very easily reach

13 different conclusions on the basis of the same evidence put before them."

14 Therefore, we consider that it is not a matter of whether the

15 Appeals Chamber is looking into the objections reasonably, errors of

16 fact, errors in weighing up the evidence and without violating any

17 person's reasonable characteristics can bring in the wrong conclusion.

18 We must bear in mind that Judges are men and women and that men and women

19 can see things in different ways. One person can see a thing in a

20 different way than another, but there is hierarchy here and that is

21 authority, the authority of the final Appeals Chamber, the second

22 instance of the Appeals Chamber whose -- who has greater weight. That is

23 why we consider that Mr. Kvocka's appeal and the matters it has set forth

24 satisfies those standards and that the Appeals Chamber can fully look

25 into them and weigh them up.

1 We do agree with the Prosecution as well and what it says in his

2 response, that every error of whatever kind on -- error on a question of

3 law invalidating the decision. The Appeals Chamber must assess whether

4 violations that are indicated and the violations of law, whether they

5 exist indeed and what influence they had on the first instance judgement

6 and then make their own finding and decision with respect to whether

7 they're going to accept the grounds for appeal or reject them.

8 We furthermore consider, and I'd like to underline this fact once

9 again, that Kvocka meets all the standards for the Appeals Chamber to be

10 able to accept all his grounds for appeal and make a ruling and decision

11 acquitting him.

12 I should now like to refer briefly to the question of the right

13 to a fair trial. Kvocka here did not refer to that directly, but he did

14 indicate the problem. He pointed it out. And there was a lot more

15 mentioned about that yesterday by Mr. Jovan Simic and Mr. Fila. And it

16 is in this direction that I should like to say a few words here and now,

17 more for practical purposes and as a contribution for us to solve this

18 problem.

19 For us to be able to understand what we are talking about we must

20 start out with what we have in our particular case. Kvocka considers

21 that the indictment not only has the function to inform the accused of

22 the charges being brought against him but that the indictment also has a

23 much broader responsibility, if I can use that word. First of all,

24 through its indictment the Prosecution itself sets him -- sets itself an

25 indictment task, if I can put it that way. It tells the Court what it is

1 going to prove, and that is the system of links in the general chain, and

2 that is how Kvocka views this. And when I view it this way, too, I must

3 take a look at what we have in this case. And if this boils down to the

4 tasks through the indictment that the Prosecution has set itself. It has

5 informed the Trial Chamber that it will seek to prove what it has set out

6 in the indictment and given the Defence elements to prepare its Defence

7 case.

8 Now, the indictment in Kvocka's case reads as follows, and it

9 says that Kvocka was the camp commander. Let me repeat: Camp commander

10 is what it says. Then Kvocka is the deputy camp commander. Then he is

11 the superior person to everyone, to all -- superior to everyone in the

12 camp, those who come to the camp as visitors, the investigators. He was

13 just not the superior when he was the deputy commander. He was

14 responsible for accommodation, for the food in the camp, for the lack of

15 medicines. He is responsible for the lack of health protection. He is

16 responsible for the lack of water.

17 In a word, Kvocka is the person who is absolutely responsible for

18 everything in the camp. So that was the indictment task that the

19 Prosecution set out to prove. It informed Kvocka, and it informed the

20 Trial Chamber of what its task was going to be.

21 Following that line, in its opening address, the Prosecution said

22 Kvocka, and let me repeat this, Your Honours, on the basis of the facts

23 or, rather, of the above-mentioned or previously mentioned fact that

24 Kvocka is responsible both as a member of a joint criminal enterprise and

25 all the rest, let me underline once again the Prosecution sees the notion

1 of responsibility of Kvocka's responsibility as co-perpetrator in a joint

2 criminal enterprise based on the Tadic judgement builds up on the

3 elements that exist in the indictment: That Kvocka is the commander;

4 that he was the first man in the camp; that the degree of his volition,

5 his knowledge, et cetera, was absolutely present. And that had the

6 Prosecution proved all these charges in the indictment, that Kvocka was

7 the command and deputy commander, I don't think we would have to ask

8 ourselves whether he would be responsible under the joint criminal

9 enterprise section.

10 But we have to go back now to what remains of the indictment task

11 before the Trial Chamber for the Prosecution. Your Honours, absolutely

12 nothing. The Prosecution before this Trial Chamber has managed to prove

13 nothing of what it claims in its indictment. Kvocka was not the

14 commander. Kvocka was not the deputy commander of the camp. Kvocka was

15 not responsible for the hygienic conditions or health conditions or the

16 food situation or the investigations and interrogations. Kvocka was not

17 responsible for anything that the Prosecution claimed in its indictment

18 which it never amended. It only looked at the existing factual premises

19 and added the responsibility for the so-called joint criminal enterprise.

20 Now, the question arises of what is Kvocka, who was Kvocka, what

21 was Kvocka in the Omarska camp? And Honourable Judge asked Mr. Prcac, I

22 think, what was Prcac in the camp. And to that question there are two

23 answers. The first answer is the answer which was concluded by the Trial

24 Chamber on the basis of the appellant brief. That is this, and I quote:

25 " Kvocka was the functional dependent of the komandir of the guard

1 service." Let me repeat: "The functional deputy of the komandir of the

2 guard service." That was the Trial Chamber's response. Our response,

3 our answer is quite different, and I'll elaborate that answer later on,

4 but let's just for purposes of comparison say this. Kvocka a policeman.

5 He was a professional policeman. He was employed in the police section,

6 in the police station department of Omarska and he was deployed and did

7 the work of the duty policeman in a system of extraordinary security for

8 the camp. And I'll go into those matters later on, but I merely wanted

9 to inform Your Honours of what Kvocka actually was in Omarska pursuant to

10 the Trial Chamber's conclusions and what he was in our view.

11 For us to be able to expound on the matter and the situation as

12 to why Kvocka was and how he came to be a professional policeman on the

13 job, on the beat at Omarska, I'll have to go back to look at the

14 structure of that unfortunate camp of Omarska. And as my colleagues

15 suggested, and I agree with them fully, they are in our conscience and

16 the conscience of humanity. There is nothing I contest there. But the

17 Omarska camp was established pursuant to a decision and order of the

18 Crisis Staff and Simo Drljaca. Unfortunately for him, unfortunately for

19 Kvocka and all the other people who were detained there and all the other

20 people who worked there, it was established on the territory which

21 territorially speaking covered by the police station and department and

22 sector of Omarska, which is the lowest organisational form that a police

23 station can have. It was dislocated because of the territory which could

24 not have been covered.

25 In the functional sense, they have absolutely no competencies or

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1 authority at all. It was just an outlet which dealt with control,

2 traffic control. It was not authorised to undertake investigations of

3 any kind or even take in any criminal reports -- if anybody had had a

4 brawl in a cafe, for example. So that was the rank of that outlet and

5 its policemen. It was the lowest possible level. And that's where

6 Kvocka had his own work post, and it was called the leader of the patrol

7 sector or patrol region or whatever you like to call it.

8 Now, what does that mean? It means that Kvocka had a region

9 which covered just several villages and with his colleague he would

10 patrol those vision according to a schedule. He would go into the cafes,

11 coffee bars, meet people, and he was a sort of link between the

12 authorities and the local population. That's what Kvocka's job was.

13 That's what he did. And we have handed in documents to bear that out.

14 On the 17th of June, for example -- perhaps it might have been

15 the 21st now, I'm not sure now -- he was redeployed when the Serb police

16 force was established. He received the same work post. He did the same

17 job with the same working tasks. Unfortunately, on the 28th and 29th, to

18 his unfortunate circumstances, he was the person on duty. It could have

19 been Mladjo Radic. It could have been anyone else when in the morning

20 hours he was informed over the telephone that as the duty officer he had

21 to go to the compound of the Omarska mine.

22 The order came from his komandir at the police station, the one

23 who was his immediate superior within the frameworks of his police

24 activities. Kvocka went there and saw that some people had been detained

25 there. He saw that a system had been established for providing security,

1 and his komandir informed him of the situation and says, Who are you? He

2 says I'm the duty officer. He introduced himself. He says, Where is

3 your commander? He says He's asleep. And of course that komandir was

4 Zeljko Meakic. He says Wake your komandir up; tell him that you have

5 been assigned the task of providing extraordinary security for the

6 investigation centre set up in Omarska and this will only last for a few

7 days.

8 Now, before Meakic arrived, according to the rules of service,

9 alert the reserve police force and bring them in here to provide

10 security. That's what Kvocka did. He goes back to the police station,

11 and through the system of police functioning, which exists in police

12 systems all over the world, he alerts the right people, and a group of 20

13 men is formed which goes to Omarska. And as the duty officer, Kvocka

14 takes them there. And then the superior takes over these individuals and

15 deploys them to set guard jobs. Everybody had his post, and they assumed

16 that post. And then some of the detainees who were already there, Your

17 Honours -- according to the investigations, that has been proved -- this

18 took place two or three days earlier, this unfortunate camp was

19 established two or three days prior to that. Somebody could have

20 concluded that Kvocka had some other position. He came in. He took on

21 orders. He goes back. He alerts the people. He organises the people,

22 he sends them back. He brings them in and turns them over to the

23 komandir who deploys them to the guard post.

24 To an ordinary observer, this might have seemed as if Kvocka was

25 some sort of superior officer. No. Kvocka was simply the duty officer

1 on that evening in the police station and happened to be doing his

2 duties, going about his duties as was provided for by the rules of

3 service in the public security system or the police station. And that's

4 how the camp came to be established.

5 Mr. Meakic didn't know that it had been established. Mr. Meakic

6 on that particular day himself ordered Kvocka to continue his duty shift

7 although he had been on duty all night because Mr. Meakic wanted to try

8 to prevent the police station or the police sector to provide security.

9 Not because he knew that this would be something that it turned out to be

10 later on but because this was his position. He knew that with respect to

11 the potential in the police station he wasn't able to do it himself. So

12 he tried to do this the whole day and wasn't successful. But the camp

13 was established nonetheless.

14 And during our -- the production of evidence during our case, we

15 claimed that that was not true. We presented a decision dated the 31st

16 of May, 1992, which was signed by Mr. Drljaca in which the organisational

17 structure of the camp was strictly provided for. Point by point it was

18 set out, who was supposed to do what. Whose job it was to do what. Who

19 was responsible for what. And quite simply, who reported to whom.

20 In our desire to prove what we are claiming - and that was our

21 duty, to prove that - and to each of those points Kvocka in particular

22 and the other Defence counsel after that presented evidence, and the

23 Trial Chamber accepted this, that the structure of the camp, of Omarska

24 camp, was completely established in a way that was pursuant to Simo

25 Drljaca's initial decision. And in that decision it explicitly states

1 that all the duties with respect to providing security within the camp

2 should be provided by members of the police sector or police outlet of

3 the police station of Omarska.

4 This is the so-called extraordinary security. It exists in the

5 Rules of Procedure which I attached to the evidence and put it in the

6 records of the Honourable Judges who will have the opportunity to

7 acquaint themselves with it. And they will see how it is envisaged, this

8 extraordinary security, who does what; who is in charge. And in one

9 paragraph which is quoted in my submission, it says the person who

10 ordered extraordinary security is the one in control. That was Simo

11 Drljaca, in point 32. Is even envisages a coordinator who will

12 coordinate all the segments and structure of extraordinary security.

13 The Trial Chamber accepted there that the Prosecution has proven

14 that the structure of the Omarska camp was the way it was; that is, as

15 ordered by Simo Drljaca. So I underline this conclusion that the

16 security of Omarska provided internal security. There were actually four

17 types of security. First, security of the mine itself. The mines were

18 standing in the entrance to the mine. They were also part of security.

19 Second category, military security. There was a broader

20 structure including Territorial Defence. They secured the perimeter of

21 Omarska. We did not deal with this, but we did deal with this in the

22 Stakic case where it was mined. However, this had nothing to do with our

23 type of security. What we had here was an Intervention Platoon of

24 Special Police. That Intervention Platoon indeed spent 10 to 15 days

25 there in the beginning of January, and they were a cause of a lot of

1 problems. You even have on the record evidence that Mr. Simo Drljaca was

2 calling upon his superiors in Banja Luka to remove the Intervention

3 Platoon because they were out of all control. They were uncontrollable

4 even by their superiors.

5 Without affecting accommodation, without affecting investigators,

6 without affecting anything at all, Kvocka was simply the duty officer in

7 this security detail. And I come back to my earlier assertion, bearing

8 in mind that Kvocka was an active-duty policeman, that he was a duty

9 officer, that he was keeping duty on the corner, sometimes entering an

10 office -- and people didn't know that it was not Kvocka's own office, it

11 was just a 18 square metre room. We have evidence of this on record -- a

12 room which was manned by two or three typists where investigators would

13 come to dictate records, where duty officers would sit, Radic or somebody

14 else. And that was that notorious room which was sometimes alleged to be

15 Kvocka's office. It was not.

16 I allow for the possibility that under those circumstances it was

17 perfectly understandable for someone who is not familiar with the

18 building seeing Kvocka entering the building, not knowing about his guard

19 post and seeing Kvocka talking to people, which was not a secret, that

20 person could have gained the impression that Kvocka had some influence.

21 The position of a man in extraordinary security is different from the

22 position of a guard who simply stands guard duty for 12 hours. We

23 believe that this we have -- in this we have provided an answer of what

24 Kvocka's role was in Omarska camp.

25 Let us now look at the situation in the context of events that

1 were occurring at the time. In 1992, when the unfortunate war in

2 Bosnia-Herzegovina began that took a toll of 200 or 300.000 people;

3 destroyed 500, 600.000 houses; made 2 million people displaced; and had

4 immeasurable consequences; in 1992 when this notorious came was

5 established, in the minds of Kvocka and the other people involved, it was

6 a temporary investigation centre resulting from the extraordinary

7 circumstances that had arisen, and those circumstances were the armed

8 conflicts that had already produced hundreds of dead prisoners. At the

9 checkpoint before the events in Kozarac, the policeman from the Omarska

10 Police Station fired at three members of the Serbian army. Judge

11 Schomburg, in his summary, says that those were minor incidents compared

12 to what happened later. Yes, from the viewpoint of Judge Schomburg. But

13 from the viewpoint of the people who lived in that area where tensions

14 were running very high, which was populated by ordinary people who were

15 under media pressure that is difficult to fathom, the situation was

16 completely different.

17 For several days, you have been witness to it yourself, media

18 pressure was raging. The reason was that an Albanian boy had drowned and

19 a misinformation that he was chased by three Serbs into the river

20 launched in a rage worldwide [as interpreted]. That is the scale of

21 media frenzy that we are talking about.

22 Now, how could you expect that a person like Kvocka could have

23 fathomed the intent of that camp, especially after being told that it

24 would only last for two days. And that was after all concerned.

25 Witness B says in the first days the food was good. There was enough

1 meat. Yes, the guards say so too. After interrogation, after

2 questioning, you will be released. And that's indeed what happened in

3 the first days. People were released to go to their homes. In one day,

4 several busloads of people were released. However, things changed later.

5 And then came the notorious order of Mr. Drljaca that no one should be

6 released any more. However, that order was not received by the duty

7 officer of Meakic. It was received by Josic and the people who were

8 conducting the investigations.

9 The Omarska camp was a punishment facility for security men as

10 well. We have seen that every 15 hours -- every 15 minutes even in this

11 courtroom guards are changing because this is a difficult job. In

12 Omarska, their shifts lasted 12 hours. They believed that those were

13 extraordinary circumstances. That was the degree of their understanding,

14 of their imagination, of their conscience. They were kept on the same

15 diet for a long time.

16 In his 17 days in Omarska, Kvocka ate the same food that the

17 prisoners got. And now Kvocka is supposed to have the intent to

18 participate in a joint criminal enterprise where he is eating the same

19 food as prisoners. Gentlemen for the Prosecution say it is not the same

20 thing. He could have brought sandwiches from home. I agree it is not

21 the same, but that is not what we are talking about. We are talking

22 about the elements of his understanding. Kvocka and Nusret Sivac who was

23 mentioned yesterday, they got the same rations of warm lunch. Nusret

24 Sivac, unfortunately, got only one in 24 hours. That food was

25 abominable. Don't misunderstand me. I don't want to justify anything.

1 I'm just talking about the position of those people.

2 If it is my intention to expel somebody, would I eat the same

3 food that was qualified here as abominable?

4 That's what I wanted to say about Omarska, the way it was

5 established, its structure and its functioning, and now I would like to

6 move on to the issues that relate to our appeal itself.

7 Speaking of errors of fact, I have to emphasise that in one of

8 our grounds we contested the conclusion of the Trial Chamber's judgement

9 that Mr. Kvocka said in his interview to the Prosecution that Zeljko

10 Meakic had appointed guard shift commanders. We believe that statement

11 was used as a basis which later served to make erroneous conclusions. He

12 was a functional replacement for the guard shift leader. We dealt in our

13 appellate's brief with this issue at length. We must say that no method

14 of interpretation of Mr. Kvocka's statement cannot possibly lead to the

15 conclusion that the Trial Chamber arrived at. Kvocka, and I'm quoting,

16 said: "Zeljko Meakic appointed some people from among the shift," and I

17 am emphasising, "From among the shift."

18 The Trial Chamber gave this term the meaning "shift leader." I

19 must emphasise, Your Honours, that "shift leader" is a term that exists

20 in normal police structure. It is a work job in regular police hierarchy

21 in the country where I come from, just as the job of leader of patrol

22 sector.

23 Kvocka was shift leader. In 1994, he was appointed shift leader.

24 So Mr. Kvocka, as an experienced policeman, a man who has graduated from

25 the higher police school, knows very well what the duties of shift leader

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1 are, uses the term shift leader as he understands it. He is responsible

2 on behalf of the group, because when he says, "I was not always aware of

3 all the details but I would compare lists and find out who was there and

4 who wasn't," linguistically speaking or logically speaking, there is no

5 basis for deriving the conclusion that Kvocka was appointed shift leader.

6 My colleagues say other evidence proved it later. It doesn't

7 matter whether other evidence proved it later or not. I am saying that

8 this conclusion is erroneous in itself, and it meets the standards that I

9 spoke of earlier.

10 Another topic related to this issue was taken up in the work of

11 the Trial Chamber. The issue arose whether it was allowed for the

12 interview given by Mr. Kvocka to the Prosecution be entered into

13 evidence. Kvocka was against this. He gave me very detailed arguments

14 for being opposed to this, but there is one of them that I consider of

15 particular importance.

16 Many decisions made by Trial Chambers, Appeals Chambers as well,

17 gave primacy to a direct examination of a witness in the courtroom. That

18 is logical and that is good. And we believed that Mr. Kvocka, who

19 appeared as a witness in the courtroom, made himself available to the

20 Prosecution, to the Defence, and even to the Honourable Judges to be

21 asked any question that was of interest to them. Based on that

22 examination, especially with regard to the Prosecution, a record ensued

23 and a transcript. Especially one thing is important. He said to Ms.

24 Somers, "Stop trying to put in my mouth that I said he was shift

25 commander or shift leader, because I never said that." That is why we

1 believe these requests should be made part of the evidence.

2 In our case, two different standards are applied. Mr. Prcac and

3 Mr. Radic had also given interviews to the Prosecution, but they did not

4 testify in the courtroom. I thought that in such a situation -- and Kos

5 as well. Kos as well. Prcac and Kos did not give -- gave interviews to

6 the Prosecution and did not testify.

7 I believe that in that situation, the Trial Chamber could have

8 accepted those interviews as evidence, unlike the situation where an

9 accused made himself available to the Judges to be examined. In this

10 situation, we believed -- we believe that the Trial Chamber should not

11 have accepted the interview into evidence, because it's also a violation

12 of the principle of directness.

13 By which standard can we arrive at the conclusion that we can

14 trust something provided that it is told truthfully without giving a

15 solemn oath and without any of the prerequisites for testifying before a

16 Trial Chamber? The question arises, what is the probative value of an

17 interview given in the offices of the Prosecution? Is it greater than

18 the probative value of testimony given before the Trial Chamber?

19 For all these reasons, we believe that this system was flawed and

20 that this is another error of the Trial Chamber.

21 Yet another error in fact is in the following: The Trial Chamber

22 concluded, and I quote: "A great number of witnesses testified that

23 Kvocka was in a position of authority and have convinced the Trial

24 Chamber of this." In its judgement, the Trial Chamber demonstrates this

25 evidence.

1 The first group is made up of, I quote: "Evidence that include

2 details. And a second group of evidence which are additional evidence of

3 Kvocka's superior position in relation to guards provided by witnesses,"

4 unquote.

5 Your Honours, Mr. Fila spoke clearly yesterday that the Trial

6 Chamber had concluded that Kvocka, Radic, or Prcac had no position of

7 authority which would entail elements of command responsibility or which

8 would give them the status of superiority.

9 As to the first group of witnesses, the Trial Chamber included

10 Mirsad Alisic, AG, Susic, Azedin Oklopcic and Witness AI. Your Honours,

11 I will not deal with them, name them by name, but in my appellate's

12 brief, I mentioned them. I have, however, to stress certain things that

13 really undermine the findings of the Trial Chamber regarding facts.

14 The Trial Chamber conclude that Kvocka left Omarska on the 23rd

15 of June, 1992. It was his last workday in Omarska, a workday in which

16 Kvocka spent his time looking for an explanation for things that hurt him

17 and things that befell him. I'm talk about this later.

18 That same Trial Chamber concluded that Sifeta Susic was arrested

19 and came to Omarska camp on the 24th of June. Your Honours, the witness

20 is testifying. He testified about the acts and position of Kvocka, his

21 conduct, but he's testifying after the fact that the Trial Chamber found

22 that in actual fact Kvocka had left, and that standard is very dubious as

23 a result.

24 Mr. Kvocka did not contest that at some time, around the 27th or

25 28th of June when he visited Omarska because some relatives of his were

1 detained there, too, he brought some medicines to Mrs. Susic. She was a

2 working colleague of his. My learned colleague said we didn't

3 cross-examine Ms. Susic. Of course we didn't because we considered it

4 groundless to cross-examine an individual who at no point in time was

5 there together with Kvocka in the camp for her to be able to make any

6 conclusions about Kvocka of any kind. However, my learned friend, or

7 rather, my learned friends of the Prosecution forget the fact that we

8 were very rigorous in cross-examining Mrs. Sifeta Susic when she lied

9 before this Trial Chamber about the position occupied by Mr. Kvocka

10 before the war in Omarska when she claimed that he was the commandeer, or

11 commander, the deputy commander, and there was a very unfortunate scene

12 here that took place and the way in which she concluded her testimony in

13 response to Mr. Riad's question.

14 We then demonstrated that the witness had perhaps suffered there,

15 perhaps this one more than others, but she had a motive. She -- because

16 she was detained by people whom she had previously worked with for years.

17 So Mrs. Sifeta Susic, let me repeat, worked in the police station from

18 the very beginning until she was sent away in 1992 from that police

19 station department for the mere reason that she was a Muslim, and I can

20 say that quite openly here. That is true. But she was sent away by Simo

21 Drljaca, and she was angry towards her colleagues. She felt rancour.

22 But Mr. Kvocka did his best to find a remedy, to find some medicine that

23 he personally didn't have. He got some from his neighbour to help the

24 lady as one human being towards another, and that is what Mrs. Sifeta

25 Susic did say during her testimony. And in that group there are other

1 individuals, Kerim Mesanovic being a case in point. He was also a man

2 who came to Omarska on the 24th of June.

3 Mesanovic Kerim who testified that he saw Kvocka, that he saw

4 Kvocka issuing orders to the guards. And the Trial Chamber found itself

5 that Kvocka's effective last day in Omarska was the 22nd of June. Of

6 course, Mr. Mesanovic couldn't have even recognised on the photo spread

7 Mr. Kvocka. He failed to recognise him at all. But this is what

8 troubles the whole system, this inconsistency in the judgement. You have

9 two conclusions, two reasonable conclusions by the Trial Chamber when we

10 speak of Kvocka once again. Witness J, for example, claims that she was

11 arrested on the 9th, that she came to Omarska on the 9th. And the Trial

12 Chamber accepts that as fact in order to assess Kvocka's status and

13 position. However, that same Trial Chamber also concludes and takes as

14 fact, at face value, that Kvocka was something there that they themselves

15 don't know what he was, and they deduce this from the testimony of Nusret

16 Sivac, the witness who was taken into custody and brought to Omarska for

17 the first time on the 10th of June. And he testified; he said that

18 witness J was arrested two or three days later, because he went to her

19 and told her that she was likely to be arrested. So these are two facts

20 that wipe out each other.

21 They were arrested on the same day, Nusret Sivac, Kerim Mesanovic

22 and Sifeta Susic. They were all arrested on that same day. Sifeta

23 Susic, however, depicts events quite differently and quite in the

24 opposite way to the other two. Sifeta Susic says in the middle of July

25 he saw Kvocka in Omarska issuing orders. He tells the Trial Chamber

1 about certain facts.

2 Now, I myself allow for the fact that there can be certain

3 discrepancies in recollections and so on, but you can't have somebody not

4 being in the camp of Omarska and a witness say that, yes, he did see him,

5 and yes, he did see him issue orders. And when he was shown a photo

6 spread with all the different images of people, he didn't recognise

7 Kvocka at all.

8 So those are the facts upon which the Trial Chamber reached its

9 conclusions. And I would like to focus on the essence of what led to the

10 error of fact, and that is this: None of these witnesses speak of Kvocka

11 as being the deputy commander of the guard service. Obsid [phoen]

12 Mirsad. That's a separate case in point, and I quote -- I quoted from

13 this passage and indicated that the Prosecutor should have been more

14 restrictive in bringing in witnesses because a false witness who engaged

15 in perjury is the most dangerous kind of witness in a court of law.

16 He says, "Kvocka, on the 31st of May, said he was the commander

17 of the camp." Now, the Trial Chamber rejected this observation that

18 Kvocka was the camp commander. But from that rejected observation, they

19 draw the conclusion that he was the equivalent of the deputy guard shift

20 service. So there's no pointing of contact there, or there -- it was an

21 even more drastic mistake. And that was the testimony by Oklopcic

22 Azedin. The Trial Chamber concluded and said the following: The witness

23 Oklopcic testified and said that Kvocka and Meakic were on duty shifts

24 for 24 hours, whereas the rest did their duty shifts of 12 hours; and

25 from that Oklopcic deduces that Kvocka had a different kind of status and

1 a different kind of position. That's his conclusion. That's what he

2 concludes.

3 The Trial Chamber rejects the first premise because it

4 incontestably asserted that they all had 12-hour shifts, without

5 exception. But then it goes on to conclude that Kvocka's stay remained

6 being what he was. None of these witnesses mentioned, not a single one

7 of these witnesses ever mentioned that Kvocka was the deputy commander

8 for security. Not a single one.

9 Furthermore, a realistic possibility for making assessments, and

10 we mentioned witness Nusret Sivac which is quite a separate case, the

11 testimony of Nusret Sivac to which the Trial Chamber refers is an event

12 that took place on the 10th of June. It did happen, and Kvocka took part

13 in that event. In a positive way, might I say. It is true that Nusret

14 Sivac on the 10th of June -- and we're talking about a former policeman

15 once again -- he was taken into custody and brought to Omarska. It is

16 true that members of the Intervention Platoon on that occasion mistreated

17 him. That is true as well. It is also true that Kvocka, on that

18 occasion, was the duty officer in Omarska. He happened by. He happened

19 to witness this scene, and as a policeman and as a human being and as a

20 person who knew Nusret Sivac -- he knows his family as well, and his

21 sister was Kvocka's uncle's partner. They were living together -- he

22 went up to the men -- to him to ask, "How come you're there?" Why are

23 you here? And his answer was, "I have no idea." So Kvocka was surprised

24 to see him there.

25 And then Kvocka went to check all this out as the duty officer

1 and a friend who wanted to help. He goes upstairs and he comes back and

2 says Ranko Mijic said one of the chiefs of the investigating group, that

3 he was erroneously taken into custody and detained, that he should be

4 sent home. But this was an occasion when Kvocka, like at any other time,

5 tried to help and even had the courage to go up to the Intervention

6 Platoon chief and say, "Guys, you don't do things like that." He went to

7 their head, their chief, and then this stopped.

8 From this it would emerge that the Trial Chamber concluded that

9 Kvocka was the camp commander because he made this comment of objection

10 and try to put the situation right and stop it. Kvocka on one occasion

11 said, "Had I hidden in a mouse-hole, I won't be here in court today.

12 Nobody would have seen me, whereas I did my best to help, help wherever

13 I could. I helped wherever I could. I brought in packages publicly,

14 although at the time that wasn't a good thing to do." But I'll go on to

15 speak later on about the system and problems of intent and consciousness.

16 So the ten minutes that you spend there when you don't know the

17 structure of the camp, the hierarchy in the camp and you know nothing;

18 and then you reach the conclusion that Kvocka was the camp commander.

19 What are the grounds for you to do that within the space of ten minutes,

20 a fact which here and now can describe this person as a war criminal? He

21 is married to a Muslim. He has two sisters married to Muslims. He is

22 part of the multi-ethnic community in the area. His daughter married a

23 Croat while he was in the Detention Unit and he was able to see his

24 grandchild when he released from the Detention Unit for the first time.

25 So on the basis of these ten minute assessments and not any

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1 witness, but witness Nusret Sivac who said he saw Kvocka in July, walking

2 around in July, and issuing orders. But we have dealt with all the

3 witnesses by name.

4 Witness A, we discussed her at length here yesterday. Your

5 Honours, that witness spent in Omarska just two days, two days with

6 Kvocka in Omarska. She was arrested between the 16th and the 18th.

7 Kvocka was absent, according to conclusions of the Trial Chamber. He

8 came to work on the 20th. He worked for two days. On the third day he

9 spent walking around and left. So a witness that was completely

10 unreliable for the central part of the indictment against Radic, with all

11 the confusion that she entered into the courtroom, seems to be reliable

12 enough for the conclusion to be made that when he had a problem, he would

13 go and contact them. And then the Trial Chamber entered in brackets the

14 individuals, although that is not something that exists in the transcript

15 itself. But they were on duty.

16 We are not questioning at any time that Kvocka was on duty.

17 We're not questioning or contesting that his status for layman could have

18 appeared to be different. We are not even contesting an assertion made

19 by the Trial Chamber that Kvocka said himself that he supported his

20 commander of the police station. Yes, he did; but not in persecution,

21 not in crimes, but in performing the general police duties.

22 At the beginning of June, they were given assignments, an

23 assignment that they believed to be legitimate that was pursuant to

24 police procedure and rules and applied to the circumstances. And that

25 somebody in May, at the end of May 1992, an ordinary man, 99 per cent of

1 the inhabitants at this time in May 1992 could not have even dreamt of

2 the evils that were to befall their age and they couldn't believe that.

3 People just didn't believe that there would be a war. People didn't

4 believe there'd be a conflict of any kind. There was propaganda. There

5 was fear. So under such circumstances those are the circumstances in

6 which these people had to work.

7 Your Honours, I'm not going to dwell on the facts any more, and I

8 consider that at this point in time, if you were to compare all the

9 statements that you have had and you have heard, you will be able to

10 conclude that the Trial Chamber erred.

11 With respect to matters of law, I accept the positions taken by

12 the Appeals Chamber in the Ojdanic trial, Ojdanic case where it

13 defined -- how much time have I got left? Where it defined --

14 JUDGE SHAHABUDDEEN: You have twenty minutes.

15 MR. K. SIMIC: [Interpretation] Yes. Thank you, Your Honour.

16 That will be enough.

17 I accept the position taken of the joint criminal enterprise

18 which in a certain way was accepted by practice and proved by practice

19 through this Tribunal that it is a form of responsibility and liability

20 and that certain standards should be applied. And it is also in part

21 acceptable what the -- what was ruled in the Tadic trial and Tadic

22 judgement, except that we don't think that there are differences in the

23 two groups. It is the type of case and not the elements which make up

24 this second-instance judgement. But what we wish to contest here is

25 this: Kvocka, or rather the Trial Chamber, absolutely did not prove

1 Kvocka's awareness, knowledge, intent necessary for this undertaking,

2 enterprise to be valid. But I have to say that on -- Kvocka spent 17

3 days in Omarska. He was there for 17 days. And during those 17 days,

4 there was a four-day interruption on two occasions. So from the 29th to

5 the 2nd, then he had four days off. And then he was there for another

6 ten days, then he had another four days off. And then he was sent away

7 from Omarska.

8 This itself shows that he was not able to view or be conscious of

9 everything that was going on, let alone share any intent. And I should

10 like to caution and draw the Appeals Chamber's attention to the fact that

11 Kvocka was expelled from Omarska camp. He was sent away from Omarska

12 camp because of his relationship towards his cousins and relatives,

13 because of the packages he brought in quite openly and publicly as a

14 demonstration.

15 The Trial Chamber says that this was limited assistance. That is

16 absolutely true, because it was the time of economic crisis when you

17 didn't have any flour or cooking oil or any basics, any foodstuffs,

18 because Prijedor was under a blockade. But he brought in the things that

19 people had been sent, the packages that people were sending in to the

20 detainees, and many witnesses testified to that. Many testified to that.

21 As opposed to others, he did this openly because he thought that nobody

22 had the right to restrict people bringing in packages. That was his

23 first fault. His second fault seems to be that he was married to a

24 Muslim lady and that his sisters --

25 JUDGE SHAHABUDDEEN: Mr. Simic, from your allotted time, would

1 you be proposing to leave a little space for the Judges in case they want

2 to ask any questions?

3 Mr. K. SIMIC: [Interpretation] I'll do my best, Your Honour.

4 And for that reason, Your Honour, I'm going to speak about intent

5 within the frameworks of a joint criminal enterprise and intent within

6 the frameworks of persecution. I'm going to speak to the issue in the

7 same way. So the elements I'm now going to speak about is the --

8 indicates the absence of discriminatory intent and absence in support of

9 a joint criminal enterprise for both these areas.

10 Kvocka is married to a Muslim lady. His two sisters are married

11 to Muslim men. He has open sympathies for Muslims. He helps Muslims,

12 and at that time that was the greatest sin.

13 Before the Trial Chamber, we presented proof by which witness

14 Basrak Lazar who was a policeman, he was a policeman let me repeat, he

15 testified and said the following: "When Kvocka arrived and began working

16 in the Tukovi police station," it's a territorial police station where

17 there is no active duty policemen he called the commander of the police

18 station and -- or the commander of the police station rang them up and

19 said, "Be wary. Be careful. You've got an enemy coming in."

20 And also we had another witness Samardzija Zdravko, testifying

21 before this Tribunal. He was a security -- member of the security

22 station and Mr. Drljaca asked him to intercept Kvocka's telephone

23 conversations because he thought he was an enemy of the ideas pursued at

24 the time by Simo Drljaca.

25 Then we had another witness testifying. I think his name was

1 Kondic, who was confirmed here that Kvocka was threatened quite openly.

2 We had the testimony of a female witness, and she was a Bosniak and she

3 confirmed that throughout the war -- Your Honours from, this perspective

4 it is difficult for you to understand, but she said that a young man, a

5 Bosniak, spent the whole war in Miroslav Kvocka's house and slept in the

6 same room with his son Sinisa. She said that here in court. She

7 testified about that, the lady witness did.

8 The lady spoke here of this, and unfortunately she had to leave

9 the country after the war and is now residing in Sweden. She came here

10 all the way to Sweden [as interpreted] to testify that Kvocka had no

11 discriminatory intent whatsoever. On the contrary, Your Honours. Only

12 the Trial Chamber concluded itself that Kvocka intervened benevolently

13 whenever he could. It was the year 1992. Kvocka stood up in front of a

14 barrel of a gun. Buses had come and one person whose brother had been

15 killed recently started shooting, there were two or three armed Bosniaks

16 around, and Kvocka stood up to them and stopped the shooting. There are

17 witnesses to this: Rosic Branko, Milenko Rosic, Miroslav and another

18 Misic. The person who was wounded in that shooting also gave an

19 affidavit. And now can you imagine this irony and derogation of all

20 legal principles, the Prosecution accusing Mr. Kvocka of being

21 co-perpetrator in the murder of these persons when he stood in front of a

22 barrel of an enraged man and saved all those people with his body?

23 In the indictment, however, the sentence co-perpetrator -- the

24 words co-perpetrator stay, and he was convicted of it. In facts and in

25 conclusions, there were no -- there was no basis to convict Kvocka as

1 participant in a joint criminal enterprise.

2 You will see, because I don't have much time now, the analysis of

3 the murders. The Prosecution itself admits that Kvocka cannot remain as

4 perpetrator of sexual persecution or the perpetrator of three murders

5 even if the indictment remains standing. We already have the judgement

6 of the Trial Chamber saying that Kvocka can be considered responsible

7 only for the time that he spent in the camp.

8 Not a single murder, if I have come to murders now, happened in

9 Omarska while Kvocka was there. The murder of Becir Medunjanin happened

10 when Kvocka was on a four-day leave. The only murder in Omarska that

11 happened while Kvocka was around was on the 12th of June. But even that

12 was a night when he was on duty. How can Kvocka be considered a

13 perpetrator or co-perpetrator?

14 Here we believe that the principle of joint criminal enterprise

15 should apply to each murder in particular, not murders taken together.

16 All this is elaborated in our brief in great detail, but I have

17 to refer to the judgement of the Trial Chamber in the Blagoje Simic case.

18 In that case we had a Crisis Staff. The issues were similar. The Trial

19 Chamber concluded that there was a joint criminal enterprise. Do you

20 know what standard was set? The standard was Crisis Staff. Blagoje

21 Simic and below.

22 The high-ranking Simo Zaric who was deputy commander of the

23 Security Service who, according to the findings of the Trial Chamber,

24 conducted investigations and questionings, Miroslav Tadic who

25 participated in exchanges of the population, people who were in a way

1 removed from Republika Srpska, they were not convicted as members of the

2 joint criminal enterprise.

3 I'm only trying to say that here in this case we have a very

4 different level. You have in front you our briefs. Even if we accepted

5 that the Trial Chamber was correct as to the facts that Kvocka was the

6 functional equivalent of the deputy commander of the guard service, I

7 believe that that level compared to the organisation can serve as

8 sufficient presumption of his role in the camp by the standards of the

9 trials after the World War II. The lowest level of security, I repeat,

10 was the internal security within the camp, people who were unable to

11 change anything, to change the conditions, the structure. They were only

12 observers. And to Kvocka's great fortune, he was thrown out of there in

13 a humiliating way, but he was still spared for watching scenes that

14 people should never be made to watch.

15 Thank you.

16 JUDGE SHAHABUDDEEN: Mr. Simic, I appreciate your arguments. I

17 would turn now to my colleagues, the distinguished Judges.

18 Yes. Vice-president Pocar.

19 JUDGE POCAR: I thank you. I, too, appreciated your

20 presentation, counsel. I would like to put to you one question to try to

21 understand fully what your position is on an issue you have raised.

22 You said that the Trial Chamber erred in accepting as evidence

23 the statement given by Mr. Kvocka to the Prosecution because he testified

24 orally in court and you saw -- you said that accepting that statement as

25 evidence entails a violation of the principle of directness of the

1 evidence.

2 I would like you to help me to understand the scope of your

3 statement of your position. Is it your position that when a statement is

4 provided to the Prosecution and the accused subsequently gives live

5 testimony in court, the statement has to be set aside altogether or only

6 as far as there is a contradiction between the statement and the

7 testimony rendered in Court? In other terms, is your position that if

8 the accused testifies in Court, any information contained in the

9 statement he gave to the Prosecution must be checked during the direct

10 examination and cross-examination in order to be usable as evidence, or

11 is that your position that the statement has to be set aside only as far

12 as it is inconsistent with the oral examination but can be used, as the

13 case may be, to complete the information rendered orally?

14 I would like to understand exactly what your position is.

15 Mr. K. SIMIC: [Interpretation] Your Honour, first of all, I

16 considered that if the accused appears as a witness, then his statement

17 shouldn't be admitted into evidence as an exhibit, because the

18 possibility is then open that all parties can question the witness on all

19 facets. However, that's -- if we -- if the Trial Chamber accepts the

20 statement, then the scope to which it can be used is brought into

21 question by the Trial Chamber.

22 Now, I would -- I consider that it would be in order if the Trial

23 Chamber could accept those parts of the statement which were not the

24 subject of cross-examination. Let me give you an example. Kvocka's

25 statement is one sentence, and I ask Kvocka about that sentence. The

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1 Prosecution asks Kvocka about that sentence, and we spent at least 40

2 minutes discussing that particular sentence. And then during this

3 conversation, we came to what the Trial Chamber found, that conclusion.

4 I don't think we can accept the statement and not the sentence

5 uttered, what the witness himself said. So that question has two

6 premises, two ways of looking at it.

7 JUDGE POCAR: I thank you. May in this -- in the same order of

8 questions I ask you whether you allow for the possibility or not that the

9 statement be used for purposes of assessing the credibility of the live

10 testimony? Which would be your position on this point? If a

11 contradiction emerges between the live testimony and the statement, would

12 you allow for the possibility that the statement is used for purposes of

13 assessing the credibility or not? I would like to have your view on

14 this.

15 Mr. K. SIMIC: [Interpretation] Your Honour, I think that

16 cross-examination itself allows for that possibility alone, and in

17 practice it is always the case that the witness is presented with the

18 statement. He is informed of the statement. We quote it. We say, "You

19 said such-and-such," and then he explains what he meant. So I think that

20 the credibility can be tested and cleared up during a direct examination

21 of the witness before the Trial Chamber, and that is why I consider that

22 even in that situation, we should not -- it should not be a part of the

23 evidence and exhibits.

24 I don't see the difference between the credibility of the accused

25 as a witness and an eyewitness.

1 JUDGE POCAR: I thank you very much, Mr. Simic. I have now your

2 position perfectly clear. Thank you.

3 JUDGE SHAHABUDDEEN: Judge Guney.

4 JUDGE GUNEY: [Interpretation] Mr. Simic, I should also like to

5 thank you for your presentation, and I should like to receive some

6 precisions on the following matter: My colleagues -- your colleagues who

7 have also spoken, for Mr. Meakic they used the term chief of security of

8 the camp. Now, you yourself said that it was the commander of the guard

9 service, I believe.

10 Now, the commander of the guard service, is that the same thing

11 as a chief of security? Do they do different things or does it boil down

12 to the same thing?

13 And following on from that idea, in the chain of command your

14 client was attached to who? He was under whose control? Whose control

15 was he under? Mr. Meakic or, as you said, the commander of the guard

16 service? Thank you.

17 MR. K. SIMIC: [Interpretation] Your Honour, I am fully conscious

18 of the fact that the terminology that is used sometimes leads to certain

19 dilemmas and misconceptions. Mr. Meakic was the commander of the police

20 station department of the police station of Omarska. That was his

21 professional job. The police station department of Omarska was given the

22 assignment to provide external -- extraordinary security for the camp,

23 which means people who in a certain way were under the authority and

24 competence of Zeljko Meakic. They were assigned the task of providing

25 extraordinary security, and within that extraordinary security Kvocka

1 also had his task and assignment.

2 To make things clearer to you, because I'm from the region

3 myself, the commander of the police station department, pursuant to the

4 law governing the police force, does not have the status of a superior

5 officer. He is very low down on the hierarchy. But, yes, all the police

6 in the police station department are subordinate to him. He has his

7 commander, komandir, and the commander of the police station is superior

8 to both Meakic, Kvocka, and all the other policemen. Above him, above

9 the commander of the police station, we have the assistant head or

10 assistant chief of police. The assistant chief of police and pursuant to

11 this order he was the coordinator for the entire structure at the Omarska

12 camp, and at the top of the pyramid there was the chief of the public

13 security service.

14 Now, what happened here is this: Mr. Meakic as commander of the

15 police station department was de facto the commander for security or,

16 rather, the leader for security, because the real term used is "leader,"

17 rukovodilac. And he was superior to Kvocka as well as to Radic and

18 Prcac, and all the others within the composition of the security service.

19 The Trial Chamber found that the leader of security -- that he

20 was the leader of security, but these two things are separate. He is the

21 commander of the police station department, and on this assignment he was

22 the leader of security as well. And this term was officially used in the

23 Sikirica case where we have an order or his signature as the leader for

24 security, rukovodilac obezbedjenja.

25 JUDGE GUNEY: [Interpretation] Just to round that question off,

1 your client, then, in the chain of command, was he attached to the head

2 of the security service or to the head of the department as you said?

3 Could you be more specific?

4 MR. K. SIMIC: [Interpretation] To both. To the one and to the

5 other, because he was a policeman within the frameworks of this

6 extraordinary security service. So Zeljko Meakic was command of police

7 station department and at the same time commander of the extraordinary or

8 leader of the extraordinary security. And it was one and the same man

9 embodied in the same man, who was Zeljko Meakic.

10 JUDGE GUNEY: [Interpretation] Thank you, sir.

11 JUDGE SHAHABUDDEEN: Judge Mumba.

12 JUDGE MUMBA: Thank you, Mr. President.

13 Mr. Simic, following up on your response to Judge Pocar, the

14 vice-president, on the issue of the statement taken by the Prosecution

15 during their investigations from your client, the appellant, and also the

16 acceptance of the status of testimony in court by your client, I just

17 want to be clear in my mind, was this a statement which was recorded by

18 the Prosecutor, recorded after the appellant was warned that whatever he

19 would say may be used in evidence?

20 MR. K. SIMIC: [Interpretation] Your Honour, we have absolutely no

21 objection to any facets of this statement. It is legally perfect. We

22 just raise this point of law.

23 JUDGE MUMBA: Thank you.

24 JUDGE SHAHABUDDEEN: Judge Weinberg de Roca.

25 JUDGE WEINBERG DE ROCA: Thank you. I have just one very short

1 question. You said in your submissions, Mr. Simic, that Mr. Kvocka was

2 not responsible for a murder on the 12th of June because he was on duty,

3 and in the transcript this is what it says. Is this the correct

4 understanding?

5 MR. K. SIMIC: [Interpretation] I wasn't following the transcript.

6 Thank you, Your Honour. Kvocka was in Omarska. He didn't have any free

7 days, any days off. But this did not happen during his shift. Kvocka on

8 that day worked in the morning until 6.00. The killing happened at 6.00,

9 and it happened when he had some hours off, if I can use that term and

10 put it that way. It's the only killing that coincides with those 17 days

11 to which the Trial Chamber limits itself.

12 JUDGE WEINBERG DE ROCA: Thank you very much.

13 MR. K. SIMIC: [Interpretation] Thank you too.

14 JUDGE SHAHABUDDEEN: Just one tiny question, Mr. Simic. What

15 about if the accused adopts his previous statement? Has it become

16 generally admissible in court?

17 MR. K. SIMIC: [Interpretation] Your Honour, I built up my

18 position on the situation that occurred with respect to Mr. Kvocka, but

19 once again let me say that I consider this: This is a question of

20 primacy, whether it was a direct statement to the Trial Chamber or a

21 statement. Regardless of the situation, when you have direct testimony,

22 it takes primacy. So direct testimony takes primacy. So the statement

23 should not be used even if it were to the advantage of the accused

24 himself.

25 JUDGE SHAHABUDDEEN: What I mean is what is the position if in

1 the course of the direct testimony the accused directly adopts the

2 previous written statement.

3 MR. K. SIMIC: [Interpretation] Your Honour, he accepts it through

4 his testimony and repeats it. It's a situation, in my opinion, in which

5 there is no need for it to be introduced, because the witness has

6 repeated his statement, his testimony. He demonstrated what he said

7 previously to the Prosecution.

8 But just one digression. We still claim that this is just a

9 question of Tribunal practice, but in the statement we still claim that

10 Kvocka never said that. I think we understand each other.

11 JUDGE SHAHABUDDEEN: I would thank you, Mr. Simic, on behalf of

12 the Bench, and I would extend my appreciation to the interpreters for

13 their courtesy in accommodating us beyond the usual time limit.

14 We will adjourn now for 30 minutes. So the sitting is suspended.

15 --- Recess taken at 11.05 a.m.

16 --- On resuming at 11.36 a.m.

17 JUDGE SHAHABUDDEEN: Now we come to the last appellant. Ready,

18 Mr. Stojanovic?

19 MR. STOJANOVIC: [Interpretation] Your Honour, I thank you very

20 much. I shall try in a way to provide an advance apology for some

21 insufficiently elaborated qualifications that I will utter later, with

22 the fact that I intended to finalise my text today. However, due to

23 changes in the schedule, I have not had time. Lawyers must always have

24 or find an excuse.

25 I believe that on an earlier occasion, I referred to something

1 that was said by a German lawyer, Savigny, who said that "Law is the

2 mathematics of concepts." Complex mathematical operations have to be

3 treated in written text, it is difficult to do orally. This legal matter

4 at hand is very complex, I believe, and I will make use of a written text

5 that I will read now.

6 I have to apologise in advance to my client, Zoran Zigic, for the

7 words with which I will begin my presentation, namely, I believe that the

8 Trial Chamber's judgement prejudices not only Mr. Zigic -- but what

9 affects me personally -- it is the institution of defence that is

10 prejudiced, Defence as the institution which is indispensable to any sort

11 of proceedings and whose role of the proceedings is on par with the

12 Prosecution.

13 At the first reading of the Trial Chamber's judgement, I was

14 really flabbergasted. At no point in that judgement did I recognise

15 myself or anything that I or any of my colleagues from other Defence

16 teams emphasised in favour of the accused, much less that it was any use

17 at all.

18 After that, I tried to put myself in the shoes of somebody who

19 knew nothing whatsoever about the case and re-read the judgement once

20 again carefully. From that viewpoint, I arrived at the firm conclusion

21 that with regard to the greatest part of the charges against the accused

22 Zigic there was no defence at all, and in its defence case, Defence

23 contributed exclusively to a conviction, more so than the Prosecution

24 did.

25 Finally, I came to the assessment that the Defence of Mr. Zigic

1 was abominably bad and that was it would have been best for Mr. Zigic to

2 have had no Defence at all.

3 A judgement is a public document, one that is the most important

4 in this institution. With a judgement like this, the Trial Chamber gave

5 the public not only a terribly minimised but also a greatly distorted

6 picture of Zigic's defence.

7 A Court may err both in assessing facts and in applying the law,

8 but it does not have the right to short sell the defence before the eyes

9 of the whole world casually or deliberately. Nor it is -- nor is it in

10 the interest of this Tribunal to have Defence teams before it made up of

11 extraordinarily incompetent lawyers. It is a matter of course that the

12 Trial Chamber has great discretion in interpreting Defence arguments, but

13 it is obliged to interpret them within a framework that is fair.

14 However, the repercussions of such an approach hit the accused Zigic the

15 hardest.

16 A few words about the standards that the Trial Chamber applies or

17 may apply.

18 THE INTERPRETER: Interpreter's correction. "Appeals Chamber

19 applies or may apply."

20 MR. STOJANOVIC: [Interpretation] We have already expressed our

21 doubts as to the importance of the assertion the Trial Chamber

22 constitutes in some way a lie detector and that it is in a better

23 position to assess the credibility of a witness sitting before them in

24 the witness box.

25 In our reply to the consolidated Prosecution respondent's brief,

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1 which we submitted on the 10th of December, 2002, we have already

2 provided a detailed explanation of the inadmissible nature of the

3 standard any reasonable person and even any reasonable trier of fact. We

4 believe that the subsequent practice of the Appeals Chamber still, albeit

5 tacitly, confirmed in every way the inadmissibility of this standard

6 which is mentioned as far back as the judgement of the Appeals Chamber in

7 the Tadic case.

8 The standard of any reasonable trier of fact, in our conviction,

9 is a standard designed for the purposes of a jury trial system, which is

10 not our case. It is our belief that these standards should not go below

11 the level prescribed by Article 13 of the Tribunal's Statute. However,

12 we hope sincerely that even with lower standards the decision that we

13 appealed will be changed, will be varied.

14 In the same decision of the Appeals Chamber in the Tadic case,

15 paragraph 64, reference is made as in some other decisions such as

16 Kunarac Appeals Chamber judgement, paragraph 39, reference is made to the

17 fact that two Judges, both acting reasonably, may arrive at differing

18 conclusions based on the same evidence. That is perfectly true, and that

19 is something that we have to say is normal. However, at the same time,

20 this is contrary to the essence of law itself and the basic legal

21 principles. It cannot be good or admissible that one or more persons

22 charged or convicted of certain identical acts may be convicted or

23 acquitted or sentenced differently only because of the different views of

24 the Judges. Something like that is absolutely inadmissible both in the

25 civil law system and in the common law system. In the latter, this is

1 particularly striking, although precedents are related primarily to law,

2 not facts.

3 We therefore pointed out in one of our earlier submissions then

4 that when such a situation arises wherein different Judges derived

5 considerably differing conclusions from the same evidence, the process

6 cannot stop there. Additional criteria must be sought and established to

7 resolve that situation. However, we later came to the conclusion that

8 such criteria have been in existence for a long time now and that they

9 are very simple. Namely, if any Judge who is called upon to decide,

10 acting reasonably, arrives at a different conclusion based on the same

11 evidence, that then is indubitable proof that there is reasonable doubt

12 and that the decision made is not beyond reasonable doubt.

13 Admittedly, the application of this criterion is problematic in

14 the case of majority decision-making.

15 We can follow up on this with the standard in dubio pro reo,

16 which means that if Judges express a certain reasonable doubt, they

17 should incline to a solution which is more favourable to the accused.

18 Similar is true in cases of differing legal evaluations. If several

19 Judges acting reasonably come up with differing legal solutions, the

20 final solution should be in keeping with the principle favor re.

21 There has been frequent reference to these principles so far but

22 within the framework of problems that arise at only one level, that is in

23 proceedings before a Trial Chamber or before an Appeals Chamber.

24 However, they should certainly apply to cases of discrepancy between two

25 judicial instances such as the Trial Chamber and Appeals Chamber.

1 These principles simultaneously express also the rights of the

2 accused, which may not be denied to him at any point during the

3 proceedings.

4 Bearing in mind the large scope of the evidence adduced, the

5 overall material and the lengthy transcript available to the Trial

6 Chamber, the judgement in its part referring to the accused Zigic is very

7 terse. We cannot but note that the indictment with its annexes is longer

8 than the disposition of Zigic's conviction, which is a curiosity per se.

9 This indicates that the Trial Chamber selected and quoted only that which

10 it considered to be of the greatest importance, such -- in such a way as

11 a point which was the most important regarding Zigic's responsibility and

12 as an introduction into his responsibility. The Trial Chamber accepted

13 and quoted in paragraph 548 something that constitutes an error of the

14 Language Services. Thus the fundamental assessment on Zigic's

15 responsibility was founded by the Trial Chamber on an erroneous

16 translation. This has been discussed following our request for

17 corrigenda of transcript and judgement of 24 December 2001. A joint

18 report of the parties based on the report of the Language Services was

19 submitted to the Appeals Chamber. We think that the Appeals Chamber

20 should make a separate decision on this, a special finding, before

21 proceeding with the appeals hearing.

22 As the case goes, Zigic did not beat Rizah Hadzalic as we read in

23 paragraph 548 of the judgement, but rather Rezak and Began, which is what

24 the correction of the Language Services says. The difference is huge.

25 Rizah Hadzalic is a symbol of the suffering of Muslims in Omarska which

1 the Trial Chamber heard from witnesses at least 50 times. Guards beat

2 him to death only because he uttered the word "bujrum," and that happened

3 on the 12th of July, 1992, as we read in paragraph 445 of the judgement.

4 Therefore, the Trial Chamber was wrongly under the impression that Zigic

5 partook in this. This error helped create the wrong impression that

6 Zigic beat up more people in Omarska and that his presence was more

7 frequent and covered a greater period of time; whereas Zigic was in

8 Omarska only once, and it happened to be just when Rezak and Began were

9 being beaten. Zigic admitted himself that he beat one of them, and the

10 judgement established that he didn't beat the other at all.

11 Generally speaking, our request for corrigenda covers other

12 misquotations of witnesses that can be read in the judgement of the Trial

13 Chamber. At several points, the judgement quotes witnesses as saying

14 things they didn't actually say. These corrections were rejected with

15 the explanations that the points in issue were conclusions of the Trial

16 Chamber to be evaluated by the Appeals Chamber. We find that decision

17 erroneous. We believe, on the contrary, that it's very dangerous to

18 write conclusions in a judgement in the form of non-existent witness

19 testimony. It is a form of falsification.

20 We must note, we cannot help noting, that such cases occurred

21 here always to the detriment of the Defence. On the other hand, for the

22 Appeals Chamber to be able to work normally at all, it is necessary to

23 know what exactly the witness said and what the Trial Chamber concluded.

24 Witness testimony should not be subject to change by anyone, whereas

25 conclusions of the Trial Chamber are subject to evaluation by the Appeals

1 Chamber, and the Appeals Chamber in this evaluation may arrive at

2 different conclusions. Therefore, we kindly ask the Appeals Chamber to

3 bear in mind that numerous quotations of witness testimony in the

4 judgement are quoted wrongly.

5 However, in addition to the judgement, the other side, that is,

6 the Prosecution, unfortunately made another large contribution to

7 distorting what the witnesses really said and what makes up the contents

8 of the evidence. At this point we will only refer to our submission

9 titled "Process against intentional misinterpretation of witness

10 statements by the Prosecution" filed on the 11th of July, 2001.

11 On that occasion, the Prosecution admitted to the mistakes that

12 we pointed out, explaining that they were not made intentionally. But

13 they only continued their old practice before we intervened again just

14 before the end of Zigic's defence case before the Trial Chamber.

15 However, bearing in mind the context of these errors, they can hardly

16 have been made accidentally.

17 Thus, for instance, if a witness explicitly said that the

18 incident between Zigic and Hasan Karabasic occurred outside the complex

19 in Trnopolje, why did the Prosecution serve to the Trial Chamber a

20 version wherein the same witness said that the same incident occurred

21 within the complex in Trnopolje? Was it an attempt to deceive the Trial

22 Chamber? Judging by the non-reaction of the Trial Chamber, the defeat is

23 seemingly success. Unfortunately, this kind of practice continued even

24 before the Appeals Chamber, although we have to admit in a smaller

25 degree. But every instance of it is very dangerous.

1 Thus, for instance, in their consolidated reply to the appeals of

2 the accused, the Prosecution added in Zigic's case four non-existent

3 beatings which the Trial Chamber allegedly found or established in its

4 judgement. We treated this in detail in our reply to the consolidated

5 Prosecution respondent's brief filed on the 10th of September, 2002.

6 Why, for instance, did the Prosecution write there that the Trial

7 Chamber found in paragraph 530 of the judgement that Zigic seriously beat

8 up Silvio Saric when the judgement did not establish this? And it is

9 even less true that Zigic had any contact with Silvio Saric whatsoever.

10 Why is the Prosecution doing this? We have to view this conduct

11 in the light of the fact that the Prosecution interrupted the testimony

12 of their most reliable witnesses in an unfair way, those witnesses being

13 Azedin Oklopcic and Abdulah Brkic, just at the moment when they were

14 supposed to testify about the murder of Becir Medunjanin, knowing that

15 these witnesses in their previous statements absolutely ruled out Zigic

16 from this event.

17 We can add to this conduct the concealment of a witness like

18 Witness KV1 whom we heard yesterday.

19 It is not our intent today to critique the Prosecution.

20 Moreover, we have only the most sincere regret about presenting this

21 before a team of the Prosecution to whom these things cannot be ascribed

22 personally. Our intention is to point out --

23 JUDGE SHAHABUDDEEN: Mr. Stojanovic, I'm interested in your

24 statement that you're not embarking on a critique of the Prosecution's

25 approach. Would it be helpful if you told us what's wrong with the

1 judgement, why we should reverse it.

2 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour, but I

3 would appreciate it very much if you would allow me to finish this. It's

4 only one sentence. Based on this conduct we derived certain conclusions

5 which can affect the whole fate of this process.

6 It is our intention to point out to the trial -- to the Appeals

7 Chamber two very important things. First, every interpretation of

8 evidence and the judgement by the Prosecution has to be treated with the

9 greatest caution, and that has been a factor that has prejudiced the

10 position of the Defence, especially before the Trial Chamber.

11 And second, in this conduct there are elements of what we call

12 abuse of process, which could lead to a mistrial.

13 To prosecute somebody and then to resort to tricks in order to

14 get a conviction can really be qualified in this way.

15 In our further presentation, we shall stick to the sequence and

16 the grounds for appeal with much less digression and with proper grouping

17 of the grounds as we indicated them in our brief of the 3rd of July,

18 2002. We drafted it according to the order of the Pre-Appeal Judge

19 requiring us to decisively indicate and enumerate grounds of appeal.

20 The 1st, 2nd, 3rd, 4th, 18th, 19th, 42nd, 44th and 45th ground of

21 appeal relate to the conviction of Zigic for all murders committed in

22 Omarska, all tortures committed in Omarska, and his participation in the

23 so-called joint criminal enterprise as well as the acts allegedly

24 committed in Keraterm and Trnopolje. We link the conviction for all

25 murders and all tortures in Omarska with the joint criminal enterprise

1 only conditionally, because we cannot see them with certainty either in

2 the indictment or in the judgement of the Trial Chamber. We provided a

3 detail rationale for this in our response to the consolidated Prosecution

4 reply filed on 10 September 2002. On this occasion, we should only like

5 to reiterate that the Trial Chamber had a discriminatory approach towards

6 Zigic compared to other accused because Zigic is the only one who was

7 convicted for the entire period of existence of the Omarska complex,

8 although even according to the indictment he spent only a couple of hours

9 in Omarska.

10 The Trial Chamber did not even adhere to what it established as a

11 principle in paragraph 349 of its judgement. The other accused who,

12 unlike Zigic, were employed in Omarska, were convicted only for the time

13 of their engagement, not before or after it. In the judgement, the

14 concept of joint criminal enterprise is elucidated in an extremely

15 incoherent contradictory and inadmissible way. It is our firm impression

16 that the Trial Chamber understood this concept as a separate act which we

17 must point out does not exist in the Statute of the Tribunal.

18 Furthermore, neither from the indictment or from the judgement are the

19 accused able to find out to what act the joint criminal enterprise

20 relates, if it is understood as a form of responsibility, whether it

21 relates to persecutions, murders, tortures, or all of the three.

22 Was Zigic convicted of all these acts doubly? Once when they

23 were qualified as joint criminal enterprise, and the second time when

24 they were qualified as "ordinary" persecutions, murders, and torture?

25 And then how come in addition to murders and tortures in June 1992 all

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1 the murders and tortures in July and August were laid at Zigic's door

2 only after the end of the Prosecution case, after the appearance of all

3 of 50 witnesses and when Zigic was no longer able to ask them any

4 questions about it?

5 All in all, Zigic's conviction for all murders and all tortures

6 that occurred in Omarska, including the time when he was lying in

7 hospital or when he was gaoled in Banja Luka may inflict much greater

8 damage to the Tribunal than to Zigic, if that is comparable at all.

9 He is also convicted for his participation in the sexual abuse of

10 women, although at the time he was totally unaware that there were any

11 women in Omarska. This conviction without guilt could be a synonym of

12 injustice for the future generations of lawyers throughout the world.

13 Another principled objection to the construction of the joint

14 criminal enterprise is borne out by our position that this construction,

15 and especially as it was presented in this case, represents a step back

16 even in comparison to Nuremberg. And this can be said in other words,

17 too, and that is that the Nazis, although without a doubt they had a

18 common plan and a common purpose, were in a more favourable position than

19 the persons accused were here. The Nuremberg judgement, in actual fact,

20 calls this construction common plan and conspiracy. It recognised its

21 applicability only with respect to the waging of an aggressive war, and

22 with respect to war crimes and crimes against humanity, acquittals were

23 pronounced because with respect to those crimes, this was not provided

24 for expressly by the Nuremberg Charter.

25 In the chapter entitled, "The law of the Charter," and the

1 sub-heading of the law as to the common plan or conspiracy, among the

2 other things it is stated: "[In English] The Tribunal will therefore

3 disregard the charges in count 1 that the defendants conspired to commit

4 war crimes and crimes against humanity and will consider only the common

5 plan to prepare, initiate and wage aggressive war."

6 [Interpretation] The following grounds for appeal, numbers 4, 5,

7 6, 22 and 23, as they are set out in our submission of the 3rd of July,

8 2002, relate to the killing of Becir Medunjanin and the torture of

9 Witness T. This part of the indictment and judgement we deal with in

10 detail in our final trial brief and in our appeal and reply to the

11 Prosecutor's response to our appeal. We feel that we voiced at least a

12 hundred objections, but in the judgement there is not a single response

13 to any one of them, and that is why we should like to remind you of just

14 a few of them here and now.

15 It is a basic fact to be borne in mind that Zigic was never

16 present at the "white house" in Omarska when the act took place. The

17 judgement is based on the testimony of two witnesses, Witness T and the

18 testimony of Fadil Avdagic as opposed to the testimony of several other

19 otherwise very reliable witnesses who were eyewitnesses that Zigic was

20 not there at all.

21 And what is even worse, both those testimonies are incorrigibly

22 deficient and are at odds with one another. Both witnesses claim to have

23 been eyewitnesses, and as victims, they directly participated in the

24 events is what they said. However, Witness Fadil Avdagic claims that

25 Zigic or, rather, the person who killed Becir Medunjanin was -- had

1 reddish blonde, dyed hair, and all the witnesses subsequently were asked

2 about the colour of Zigic's hair, and they always said that it was dark,

3 particularly during those days, especially dark, that he was 190 metres

4 [as interpreted], whereas Zigic is of a medium height of 180 centimetres

5 and was slim at the time. They said that he wore gloves without fingers.

6 Zigic couldn't have worn gloves like that because he had a large bandage

7 on his left land because his finger had been amputated, and we attached

8 medical documentation and expert findings to bear that out.

9 And then they said that he wore an earring in the shape of a

10 cross. We also proved that Zigic never had his ears pierced.

11 Witness T, describing the same person, goes on to claim that they

12 had black hair, or dark hair, that they were about 180 centimetres tall.

13 He says he didn't notice any fingerless gloves on his hands or a bandage.

14 According to Witness T, all this happened at night. Witness Avdagic,

15 like other eyewitnesses, claimed that it happened during the day.

16 There are a series of other large-scale inconsistencies between

17 the testimonies of these two witnesses, allegedly eyewitnesses, and we

18 pointed those discrepancies out. How then can the judgement say what it

19 does in paragraph 605 and claim that Fadil Avdagic corroborated the

20 testimony of Witness T?

21 On the other hand, Witness T claims that he didn't know Zigic at

22 all and that the person -- a person called Samir Esefin in Omarska told

23 him that that killer and torturer's -- that his name was Zigic.

24 Therefore, Witness T, in that respect, is a hearsay witness. Was this

25 man Samir there at all? What did he see? Did he actually know Zigic?

1 No attempt was made to establish any of those things ever.

2 And to this we should add a capital fact. Witness T, after two

3 days spent in the courtroom and after insistently repeating and insisting

4 to -- when asked by the Prosecution and the Trial Chamber could not

5 recognise Zigic in the courtroom. And he would have to have recognised

6 him, had Zigic really been in the "white house" at the time, because

7 allegedly Zigic spent a lot of time beating him and mistreating him and

8 his father on two consecutive days.

9 Apart from that, the Defence proved that Witness T was otherwise

10 highly unreliable and that he lied with respect to several significant

11 details. And that is all upon which the Trial Chamber bases its

12 judgement of Zigic and his conviction of him for the killing of Becir

13 Medunjanin and the torture of Witness T.

14 However, for this Defence team, that is just the beginning of the

15 story about the trial for these two acts. Contrary to these statements,

16 we have the statements and testimonies of all the other witnesses, mostly

17 Prosecution witnesses who said that Zigic in no way participated in the

18 killing of Becir Medunjanin and the torture of Witness T. We would even

19 say that the most credible witness by far, Prosecution witness, was

20 Azedin Oklopcic, which the judgement mentions and accepts in 27 places.

21 That witness knew Zigic very well, and judging by his testimony, he

22 wasn't favourably disposed towards him at all. However, as an eyewitness

23 of the killing of Becir Medunjanin and the torture of Witness T, he

24 expressly claims that Zigic was not present during that act and that in

25 no way did he participate in it.

1 The Trial Chamber does not expound why they don't believe him

2 when he says that and why they would believe him in all the other 27

3 cases if, with respect to this crucial event where he was a very close

4 eyewitness, that they do not believe him.

5 Witness Abdulah Brkic, also a close eyewitness of this event, is

6 the second-most credible, if I can put it that way, witness. The

7 judgement mentions him nine times. He is believed with respect to

8 everything. The only thing that he is not believed on is that Zigic was

9 not present in the "white house" when the murder was committed of Becir

10 Medunjanin and the torture of Witness T took place. Therefore, the same

11 as with witness Azedin Oklopcic, the same thing happens here. Two

12 consistent and very clear direct eyewitnesses. Both were Prosecution

13 witnesses mentioned in the judgement and accepts their testimony and

14 notes this in 36 places, expressly claim that Zigic did not commit this

15 murder.

16 However, when it came to convicting Zigic for the murder of Becir

17 Medunjanin, no pieces of evidence seem to have been relevant.

18 However, that is not all. Those two testimonies were

19 substantiated in all respects by Defence witnesses, DD10 -- and when it

20 comes to convicting the accused, the judgement seems to believe them --

21 as well as the testimony of Witnesses DD5 and Prosecution witness Mrkalj

22 Edin. The Defence asked that some other witnesses from Omarska be heard

23 who were otherwise Prosecution witnesses in other cases, such as for

24 example Witness R from the Tadic trial; Mesinovic Sabahudin and Hrncic

25 Faruk whose written statements confirm everything that witnesses Oklopcic

1 and Brkic stated. But they didn't come across the understanding of the

2 Prosecution or the Trial Chamber on that score. All it did do was to

3 succeed in having Exhibit D2/12 -- although in formal terms it didn't

4 succeed there either because it was tendered as a Kos exhibit. As I was

5 saying, to have this included in a very detail way, that is the testimony

6 of Witness R in the Tadic case. However, this piece of evidence is not

7 mentioned anywhere in the judgement itself.

8 The trial itself relating to this part of the indictment was a

9 real scandal which at first glance did not occur only thanks to the very

10 conciliatory and restrained conduct on the part of the Defence. Perhaps

11 this stance did unfortunately contribute to the condemnation. It all

12 began by the fact the representative of the Prosecution, Mr. Keegan,

13 interrupted his own witness Azedin Oklopcic when the man started speaking

14 about the killing of Becir Medunjanin in Omarska. Then on the 31st of

15 August in the year 2000 the Trial Chamber, after a response by witness

16 Abdulah Brkic to the effect that he knew about the facts surrounding the

17 killing of Becir Medunjanin, prevented the Defence and prohibited the

18 Defence from examining Brkic Abdulah on that subject any further, giving

19 the explanation that the topic could not be discussed and that the

20 witness, although he already said that he knew about the event, couldn't

21 be asked any questions about it. And this is done again following an

22 objection raised by Mr. Keegan.

23 Brkic spoke about the sufferings in Omarska, and the killing of

24 Medunjanin was one of the major events. Apart from that the trial is

25 called the Omarska case, and the killing of Medunjanin is the only

1 killing in Omarska for which somebody was accused of -- separately. And

2 the only person accused for the killing in Omarska was not allowed -- did

3 not allow the Defence counsel to question the witnesses pursuant to the

4 Trial Chamber decision, witnesses who had already said they knew about

5 the event.

6 Therefore, the Defence was prohibited from doing the most

7 elementary things, whereas it allowed the Prosecution to do what it saw

8 fit -- even when it went so far as badgering the Defence witnesses. And

9 so, for example, it allowed the Prosecution to question Dusanka

10 Andjelkovic, a witness and doctor testifying to the circumstances of the

11 death of Drago Tokmadzic in 1992, and to ask her about the political

12 involvement in 2001 of a person who had absolutely nothing to do with

13 anything -- any cases before the Tribunal.

14 Realising what it had done, the Trial Chamber, the very next day,

15 on the 1st of September, 2000, nonetheless decided, this Defence team, to

16 continue its examination of witness Abdulah Brkic with respect to the

17 killing of Becir Medunjanin. However, as it states -- it is stated in

18 the transcript, Brkic, in the meantime, had contacts with Mr. Keegan,

19 which had as its consequence that he somewhat changed his previous

20 written statement in which it says that another individual slit

21 Medunjanin's throat before the eyes of this witness and that Medunjanin

22 died on the spot as a result; and that the witness even stood in a pool

23 of Medunjanin's blood. And Zigic was not in Omarska at all at that time.

24 However, even after these altered details, Brkic's firm statement

25 stood, that Zigic was not in the "white house" when the killing of

1 Medunjanin took place and the torture of Witness T took place.

2 This scandalous conduct is invigorated by the interpretation of

3 Brkic's statements in the judgement in footnote 975 attached to paragraph

4 604. It is said that Brkic did not know whether Medunjanin died on that

5 particular day or not, and that is an alteration to what he said after

6 the testimony was interrupted and after he had talked to Mr. Keegan. It

7 is also stated that Zigic was in Omarska on that particular day. That is

8 changed testimony as well, under the previously stated circumstances,

9 newly arisen circumstances.

10 However --

11 JUDGE SHAHABUDDEEN: Mr. Stojanovic, I take it that the record

12 shows that the witness did speak to Mr. Keegan.

13 MR. STOJANOVIC: [Interpretation] Yes, of course, Your Honour. I

14 think you have that in the transcript and that it is not a contestable

15 point. I can give you the number of the transcript, the LiveNote line,

16 et cetera.

17 Perhaps just an additional piece of information. I would not say

18 that was contrary to the Rules because the testimony of this witness had

19 been concluded on that day. We were not allowed to ask him on this

20 crucial matter, but he was no longer bound by the solemn declaration. He

21 had completed his testimony. So that is not the aspect of this matter

22 that we wish to raise. Thank you.

23 JUDGE SHAHABUDDEEN: I appreciate the explanation,

24 Mr. Stojanovic. Thank you.

25 MR. STOJANOVIC: [Interpretation] Similarly, it was stated that

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1 Zigic was in Omarska that day. That is an altered statement under the

2 circumstances I expounded a moment ago. However, the Trial Chamber

3 intentionally left out the fact that Brkic expressly stated that Zigic,

4 during that event, which took place entirely in the "white house," was

5 not in the "white house" himself. And furthermore, that he had not seen

6 Zigic that whole day in Omarska at all, as well as that he just saw Zigic

7 in Omarska on one occasion, and that was on the second day during the

8 torture of Witness AK and others.

9 Finally, the day of 7 June 2000, and the identification of Zigic

10 in the courtroom by Witness T, maybe as a climax. This identification

11 was part of the examination-in-chief by the Prosecution. In response to

12 the question, asked twice, Which row is Zigic sitting in, Witness T twice

13 responded, "I'm not sure."

14 We remind you that in view of the circumstances of the occurrence

15 of the events and of the trial, it was expected of this witness to

16 recognise him. The witness was a high-ranking military officer, an

17 activist, and he had ample opportunity to see and watch Zigic umpteen

18 times. However, it must be that his conscience woke up in the courtroom

19 because the face of the person who did torture him and killed his loved

20 one was simply not in the courtroom.

21 And then something unbelievable happened. The President of the

22 Trial Chamber takes over from the Prosecution the job of identification

23 and continues to question the witness on points that the witness

24 responded to more than once. Before this Tribunal, it has been

25 prohibited a thousand times to ask questions that witnesses have already

1 replied to, and it is the duty of precisely the President of the Chamber

2 to enforce this.

3 Zigic's Defence counsel is on his feet, intending to object. The

4 Presiding Judge does not allow this objection and continues, for the

5 umpteenth time, to ask Witness T where Zigic is sitting in the courtroom.

6 How can we explain that the Defence is not allowed to object, especially

7 in situations as scandalous as this one.

8 And then that same Trial Chamber in these proceedings grants the

9 conviction of Zigic for murder, torture, persecution in Omarska and even

10 participation in a joint criminal enterprise in Omarska. It grants them

11 on conduct of this sort. But this conduct is certainly not isolated. It

12 fits within the context of everything that had been said previously

13 regarding the conviction for the murder of Becir Medunjanin and the

14 torture of Witness T, but also within the context of all the other

15 irregularities.

16 Despite all that, however, Witness T did not finally identify

17 Zigic, and by all and every rule, his identification should have been

18 over the moment when he first said, "I'm not sure."

19 Grounds for appeal number 7, number 8, and number 9 relate to the

20 conviction for the murder of Emsud Bahonjic. This has been sufficiently

21 in our enactments, especially in our appeal.

22 The judgement deals with this incident on less than one page. It

23 deals with it in combination with the murder of Sead Jusufagic as a

24 single event in keeping with the obviously inaccurate statement of

25 Witness N, whereas the remaining 20 testimonies indicate clearly that

1 Sead Jusufovic had been murdered, had been killed before Emsud Bahonjic

2 arrived at Keraterm. In fact, this Defence does not accept that on the

3 charge of murder of Emsud Bahonjic there was a real trial at all. A

4 conviction was pronounced, but there was no trial.

5 A trial is a process which necessitates the participation of the

6 Defence. The Defence must be present also in the most important part of

7 the trial, in the judgement, as proof that in whatever way, the Court

8 appreciated its arguments and evidence presented.

9 In our judgement, the Defence is absent. All the six Defence

10 witnesses who had been called to testify on the death of Bahonjic, all

11 the Defence arguments, all the statements of Prosecution witnesses which

12 favour the Defence were ignored completely. Not a single reference is

13 made to them. Nor is there a reference to the medical findings on the

14 injuries of Emsud Bahonjic as Exhibit D4/24, or the two Prosecution

15 exhibits such as 3/270, and 3/271, which also relate to medical documents

16 on the injuries of Emsud Bahonjic.

17 All in all, the transcript relating to Defence witnesses

18 comprises about 1.000 pages, and one must add to that over a hundred

19 pages of our arguments and exhibits, all of which went unnoticed in the

20 few lines dedicated to the Defence in the rationale given in the

21 judgement.

22 Therefore, we invoke here all those things that the Trial Chamber

23 considered to be non-existent. So we are now basically in a situation

24 where we have the first real trial for the murder of Emsud Bahonjic. But

25 by the same token, we have been deprived of the right to a two-tier trial

1 and of the opportunity to say anything at all about any reason for

2 non-admission of Defence arguments and evidence. However, even those

3 things that the Trial Chamber does invoke are certainly not sufficient to

4 convict Zigic for the murder of Emsud Bahonjic. In the worst scenario

5 for Zigic, he could be convicted for participating in the beating of

6 Bahonjic.

7 We will set aside for the moment the fact that two Prosecution

8 witnesses did not identify Zigic in the courtroom, although they had

9 allegedly known him for years. We shall leave and set aside the fact

10 that some of the witnesses from Keraterm remarked him for the scar which,

11 as was proven later, he acquired after Keraterm was closed. We shall set

12 aside the fact that they were at Bahonjic's side all the time without

13 noticing that he was taken to the hospital twice, bandaged there, and

14 many other deliberate or accidental untruths.

15 All those witnesses referenced by the judgement said that many

16 people jointly or separately beat Emsud Bahonjic on many various

17 occasions in an interval of ten days and that Emsud died several days

18 after his last beating.

19 One cannot see from their testimonies when Zigic participated in

20 that and to what degree. Moreover, as evidenced from the testimony of

21 Ervin Ramic, Zigic participated in this in the beginning, before the

22 medical check-up of the 15th of June, 1992. This check-up resulted in a

23 medical finding, Exhibit D4/24, saying that at that moment, the injuries

24 were far were lethal.

25 From the testimony and statements of these same witnesses, we see

1 that one other person alone, without Zigic, beat up Bahonjic at least ten

2 times. It is also in evidence that Predrag Banovic, without Zigic's

3 participation, beat up Bahonjic so badly on one occasion that Bahonjic's

4 whole left side of the head was completely deformed.

5 In this context, we requested the application of a number of

6 standards established in the judgement of the Appeals Chamber in the

7 Celebici case, paragraph 458 of that judgement in particular, one of them

8 being whether in that context only reasonable possibility is that

9 Bahonjic, after several days and numerous beatings, succumbed precisely

10 from the injuries incurred from Zigic's beating, or there are other

11 reasonable possibilities. But as we already said, the Trial Chamber

12 completely ignored all the arguments of the Defence, including this one.

13 In its intention to ignore the arguments of the Defence, the

14 Trial Chamber wasn't even bothered by the fact that it had to ignore the

15 decisions of the Appeals Chamber as well.

16 Finally, on top of an unclear actus reus and especially the

17 causal link between the conduct of Zoran Zigic and the occurrence of

18 death of Emsud Bahonjic, the issue of mens rea of the accused Zigic was

19 ignored completely as well; in other words, whether Zigic knew on the

20 condition that he had beaten Bahonjic at all that this beating, his

21 beating alone, would result ten days later in the death of Emsud

22 Bahonjic.

23 Your Honours, I am now moving on to other grounds. Would this

24 perhaps be a convenient time for the break?

25 JUDGE SHAHABUDDEEN: Thank you, Mr. Stojanovic. We shall

1 suspend --

2 THE INTERPRETER: Microphone, please, Your Honour.

3 JUDGE SHAHABUDDEEN: Yes, it's on. I said thank you very much,

4 Mr. Stojanovic.

5 I propose that we now take a suspension until this afternoon at

6 the appointed time, which will be near to 2.30. Thank you very much.

7 --- Luncheon recess taken at 12.58 p.m.

8 --- On resuming at 2.33 p.m.

9 JUDGE SHAHABUDDEEN: This sitting is resumed. Mr. Prosecutor, my

10 information is that you would like to say something.

11 MR. CARMONA: Indeed, Your Honour. I would be quite brief, Your

12 Honour.

13 Your Honour, in the light of the various allegations that are

14 being made against the conduct of the Prosecution at the trial, the

15 Prosecution is concerned that some of the allegations are not given the

16 level of specificity that is required in the context of citation and in

17 the context of exactly what has been referred to. As much as in fact an

18 oral hearing is in fact a creature of response in that it basically it

19 would entail simply responding to arguments that are in fact put forward,

20 if these arguments are broad and general, it is very difficult for the

21 Prosecution to respond in an adequate manner that would assist the

22 Chamber.

23 Apart from that specifically, I just wish to address additionally

24 that my friend has made reference to the Prosecution consolidated reply,

25 I think it's our response, where he says we have added four non-existent

1 beatings which the Trial Chamber did not find. Again, we would like

2 some -- for him to be a little more specific in relation --

3 JUDGE SHAHABUDDEEN: Mr. Carmona, may I suggest to you, if I were

4 at your place, and I'm not, I would reserve that for incorporation in my

5 address. And I would mention that I was handicapped and I -- because of

6 lack of detailed references, if it were so.

7 MR. CARMONA: Well, indeed, Your Honours. Well, I have taken the

8 licence to inform my friend, and he has in fact indicated that in fact he

9 is prepared to assist in that regard.

10 JUDGE SHAHABUDDEEN: Well, shall we leave it to him? Yes. Yes.

11 Ready, Mr. Stojanovic?

12 MR. STOJANOVIC: [Interpretation] Certainly, Your Honour. I thank

13 you very much. If you allow me only a few words.

14 Of course my presentation today suffers from omission of detail

15 of all manner of kind, because it's only a summary. If we wish to be

16 precise and provide everything that my learned friend requires, we would

17 have to repeat the final trial brief, the appellant's brief and our reply

18 to their consolidated response, and that would take me about three days

19 to present in every detail what my learned friend is interested in. But

20 even then, I would place an undue burden on the Appeals Chamber,

21 practically, by repetition of everything that is said in these documents.

22 Having said that, I am ready and willing to sit down with my

23 colleague Mr. Carmona and come back to the issues I raised in my

24 presentation.

25 I understand that I am given leave to continue.

1 Grounds for appeal number 10, number 11, and number 12 relating

2 to the murder of Sead Jusufagic, Car. This conviction, too, is explained

3 only on one page of the judgement. The judgement describes this event as

4 a single occurrence with the murder of Emsud Bahonjic but it was told

5 that way by only one extremely unreliable witness, as we explained in

6 great detail; while the remaining 15 witnesses testified that it is a

7 separate event which occurred before the arrival of Emsud Bahonjic at

8 Keraterm.

9 One is immediately struck by the question how is it possible that

10 in the case of the murder of Emsud Bahonjic Defence should be completely

11 ignored, whereas in the case of murder of Sead Jusufagic the Defence

12 witnesses, and even the statement of -- the testimony of accused Zigic

13 himself, be given a great number of references, more references, in fact,

14 than the evidence adduced by the Prosecution.

15 The answer is very simple. In the case of Emsud Bahonjic, not a

16 single defence proof was in favour of conviction. And that is why

17 Defence was completely ignored. While in the case of the murder of Sead

18 Jusufagic, Defence witnesses in minor parts of their testimony spoke of

19 things that could charge Zigic, that could incriminate Zigic.

20 The Trial Chamber then, very carefully and without a single

21 error, selected these minor and less important statements in favour of

22 conviction and completely ignored the remaining 90 per cent or more of

23 the testimony.

24 This is not only about quantity, considering that vital and

25 important evidence and testimony was ignored to the effect that Zigic did

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1 not kill Sead Jusufagic. What a mechanism at work. In theory, even such

2 a curiosity is possible, but in that case at least a convincing

3 explanation is required.

4 In the absence of any explanation whatsoever, such a mechanism

5 constitutes only very firm proof of the bias of the Trial Chamber. And

6 this trial, selective as it was, was based on very unreliable evidence.

7 Witness N, who incriminates Zigic the most, failed to recognise

8 him in the courtroom, although the circumstances of his testimony should

9 have required him to do so.

10 Witness Abdulah Brkic confirms that Zigic mistreated Sead

11 Jusufagic, forcing him to run carrying a machine-gun but did not beat

12 him.

13 The judgement is largely based on the evidence of Witness Ervin

14 Ramic, which abounds with proven untruths and who completely ignores the

15 event wherein Zigic forced Jusufagic to run around carrying a

16 machine-gun, an event that all the prisoners of Keraterm knew about and

17 retold many times.

18 He described the death of Jusufagic in a considerably different

19 way than all the remaining 15 witnesses of both the Defence and the

20 Prosecution. We provided a detailed explanation of this in our appeal.

21 And why this testimony was accepted as it was the Trial Chamber failed to

22 explain. Thus in terms of Defence evidence, there was no trial in this

23 case either.

24 The problem here is similar to the one with the murder of Emsud

25 Bahonjic. Defence witnesses claim, as does Zigic himself when he

1 provided a statement under Rule 84, that Zigic forced Car to run around

2 with a machine-gun and that he hit him only once, kicking him from

3 behind. In the words of these witnesses, Sead Jusufagic, also known as

4 Car, was killed a couple of days later by completely different people,

5 but as we have explained already, the Trial Chamber ignored everything

6 that favoured the Defence, and this is in no way reflected in the

7 judgement.

8 On the other hand, all the witnesses on whose testimonies the

9 judgement is based, although contradictory and unreliable, assert that

10 Sead Jusufagic was beaten by many people and on many occasions.

11 From the totality of this testimony, it is impossible to

12 determine the contribution of Zigic to the death of Sead Jusufagic or, as

13 his last name was then, Jusufagic.

14 One can only perhaps draw a conclusion that Zigic participated in

15 the mistreatment of Jusufagic or Jusufovic.

16 However, even such testimony of witnesses in favour of the

17 Prosecution are interpreted in the judgement in such a ludicrous and

18 distorted way that they are sometimes unrecognisable, which fact we have

19 mentioned in our appeal several times.

20 So here again, viewing only the evidence on which the judgement

21 relies, we see no proof that Zigic's actions caused the death of Sead

22 Jusufagic, or any proof that Zigic, by any standard, had the adequate

23 mens rea to cause the death of this person.

24 On the other hand, the evidence adduced by the Defence, which the

25 Trial Chamber ignored without any explanation, clearly indicate that

1 Zigic did not kill Sead Jusufagic. We hope that at least the Appeals

2 Chamber will consider this evidence so that its presentation not be

3 completely futile. But the Defence must also have the right to respond

4 to the conclusion of the Trial Chamber on this matter.

5 The conclusions of the Trial Chamber in paragraph 623 of the

6 judgement, to the effect that it doesn't matter who inflicted the final

7 blow, run counter to the conclusion of the Trial Chamber in the Celebici

8 case, paragraph 865, which was confirmed by the decision of the Appeals

9 Chamber, namely that the accused, in an identical situation, must be

10 acquitted if there is no absolute certainty as to who inflicted the fatal

11 injuries.

12 JUDGE SHAHABUDDEEN: Mr. Stojanovic, can you help me to follow

13 you on this point? I understand you to be proposing that the Trial

14 Chamber simply did not consider the Defence witnesses to whom you're

15 referring. Is there a difference between that proposition and the

16 proposition that the Trial Chamber considered the evidence but rejected

17 it?

18 If you look at paragraph 621, what it says there in line 3:

19 "Many witnesses called by the Defence corroborated Zigic's unsworn

20 statement, saying that they saw Zigic beating Sead Jusufagic only once.

21 Some testified that Zigic did not remain in the -- in Keraterm camp after

22 the initial beating of Sead Jusufagic. According to a Defence witness,

23 after the machine-gun incident, a group of soldiers arrived at the camp

24 around 4.00 or 5.00 p.m., after the funeral of a military officer and

25 they called out Sead Jusufagic and beat him. The next morning, he was

1 dead."

2 So it looks to me as if an argument could be mounted to the

3 effect that the Trial Chamber did avert to the Defence evidence on the

4 point but rejected it. Is that the same as your proposition, that the

5 Trial Chamber did not avert to the evidence at all, did not give it any

6 consideration?

7 MR. STOJANOVIC: [Interpretation] Your Honours, I see the

8 reference to one witness. You are quite correct in noting that.

9 However, six Defence witnesses confirmed the testimony of that one

10 witness, but these six are not mentioned at all.

11 JUDGE SHAHABUDDEEN: No. But the Trial Chamber did speak of many

12 witnesses. In the third line of that paragraph, there is a reference to

13 many Defence witnesses.

14 MR. STOJANOVIC: [Interpretation] Correct, Your Honour; but only

15 one single case where they say that he forced Car to run around with a

16 machine-gun. But it is omitted that he did not kill him. That was our

17 objection.

18 JUDGE SHAHABUDDEEN: I understand.

19 MR. STOJANOVIC: [Interpretation] Invoking the stance of the

20 Appeals Chamber in the Celebici case, we shall raise the question: Is it

21 reasonably possible that the death of Sead Jusufagic did not result from

22 Zigic's actions? Even if we take into account the witnesses for the

23 Prosecution and even more if we take into account the witnesses for the

24 Defence, it is evident that such a possibility exists and, therefore,

25 Zigic cannot be convicted for the murder of this person.

1 I shall now move on to the grounds for appeal number 13, 14, 15,

2 16, and 17, relating to the conviction for the murder of Drago Tokmadzic.

3 The reasons for convicting Zigic for the alleged murder of Drago

4 Tokmadzic are given in the judgement on just half a page, paragraph 631

5 to paragraph 633, considerably smaller space in the judgement than was

6 devoted to child pornography.

7 This event was testified to by all of 13 witnesses. However, 11

8 witnesses whose testimony seemed to be favourable to Zigic were

9 completely ignored, and I have to interject here with a comment that this

10 text was written before yesterday's testimony of KV1, and we can add him

11 to this number; out of them, all nine witnesses for the Defence and two

12 witnesses for the Prosecution.

13 The judgement is based only on the testimony of two witnesses,

14 Witness Y and Witness Edin Ganic, two extremely unreliable and incredible

15 witnesses, and what is worse, witnesses whose testimonies are completely

16 incompatible.

17 Even with regard to this part of the judgement, there is just the

18 conviction. But there was no real trial, because the main element is

19 missing, namely complete absence of 90 per cent of all evidence adduced.

20 What is also missing is any serious analysis of the remaining 10 per cent

21 of evidence.

22 Despite all that, we shall take some time to remember these two

23 witnesses on which the conviction relies in order to prove that even

24 based on their testimony Zigic cannot be charged with this murder. Even

25 if we take into account only what is written in the judgement, Zigic

1 cannot possibly be co-perpetrator of the murder.

2 Witness Y claims he was captured not later than the 24th of June,

3 1992, and that the same evening Drago Tokmadzic was taken out of his room

4 into Keraterm and murdered. He was killed by soldiers in disguise who

5 wore black masks and gloves and who, after 2300 hours that night, arrived

6 at Keraterm in a large vehicle. That witness heard from other persons in

7 the room that from the shining of headlights of that vehicle on the

8 ceiling of the room, they concluded that it was Zigic coming to kill.

9 Generally speaking, this witness was quite decisive in stating that he

10 had never seen Zigic.

11 Thus the judgement bases Zigic's identification in this incident

12 on hearsay to the effect that Zigic was recognised by the way his

13 headlights shone, as if those headlights and the light they reflect were

14 an identifying part of the body.

15 On the other hand, witness Edin Ganic, as follows from his

16 statement, the statement of his father Husein Ganic and Exhibit 3/139,

17 which constitutes a document on his admission into a hospital, arrived at

18 Keraterm not earlier than the 29 June 1992. And he, too, claims that he

19 was an eyewitness to the killing of Drago Tokmadzic, but he describes

20 that murder in a completely different way than Witness Y. He says,

21 namely, that on the 29th or the 30th of June, 1992 in the afternoon and

22 evening hours, Banovic, Zigic, and Lajic, wearing no masks or gloves --

23 that is Banovic, Zigic, and Lajic, not some masked soldiers -- carried

24 out a whole series of beatings. They had not arrived in any vehicle.

25 They had simply been there for quite awhile. And even a Prosecution

1 witness, AE, said that Tokmadzic had been killed by soldiers, not guards.

2 This is the reason why the Defence carried out a detailed

3 investigation about the moment of death of Mr. Tokmadzic and was informed

4 by at least 20 people that Edin Ganic had arrived at Keraterm a

5 considerable time after the death of Drago Tokmadzic and could not have

6 possibly witnessed his killing. Some of these persons agreed to testify,

7 and particularly important is the testimony of Dusanka Andjelkovic, the

8 doctor who summoned by the chief of police to note the death of Drago

9 Tokmadzic, who was, by the way, a policeman of the Serb police. The

10 doctor did so and noted that Drago Tokmadzic had died as a result of

11 beating that took place in the early morning of the 21st of June, 1992.

12 That is at least eight days before the so-called eyewitness Edin Ganic

13 arrived at Keraterm.

14 And that Edin Ganic, on top of everything, did not know Drago

15 Tokmadzic at all, and allegedly it was precisely Zigic who informed him

16 that the person who had already been beaten up and whom he was able to

17 see was called Drago Tokmadzic. Zigic disputes that he had any contact

18 with Edin Ganic whatsoever. So this, too, is hearsay, and his testimony

19 is hearsay. A hearsay witness is also the person who allegedly informed

20 him. That person disputes his allegation that he informed him in the

21 first place.

22 Moreover, Edin Ganic does not say that Zigic beat Drago Tokmadzic

23 at all. He only says that he instructed another person, Goran Lajic,

24 to "finish that off," and that is written in the judgement. Whether

25 Lajic heard this alleged instruction at all, we cannot know. And whether

1 Lajic, as a guard, was perhaps even superior to Zigic is also

2 questionable, as is the meaning of giving an instruction. The only thing

3 it cannot mean is what it stands -- what it says in the judgement,

4 namely, that the very instruction, regardless of the circumstances, a

5 person becomes co-perpetrator. Couldn't he be an instigator or an aider

6 and abettor or, rather, in these circumstances, somebody who cannot be

7 held responsible at all? And what does "finish that off" mean, and why

8 does this instruction mean kill him rather than finish the beating?

9 From the statement of a witness victim AG given in this

10 case, "They finish me off," it obviously means, "they beat me up."

11 We also reminded the Trial Chamber of the stance of the Appeals

12 Chamber from the Celebici case that conviction cannot be based on

13 equivocal verbal statements, but as we have already mentioned, the Trial

14 Chamber did not try this part at all.

15 And finally, there is no evidence whatsoever that Drago Tokmadzic

16 belonged to the opposite side in the conflict, and as a civilian at that,

17 so that the provisions of the Statute of the Tribunal would be

18 applicable. On the contrary. There was evidence that he was a policeman

19 in the Serb police force and it was wearing that uniform that he was

20 brought to Keraterm.

21 There is also evidence that he had signed a declaration of

22 loyalty to the Serb authorities and that he had previously himself been

23 bringing prisoners to Keraterm, and that in terms of ethnicity he was

24 half Serb, half Croat.

25 The only evidence as to why he was killed is that he was a cruel

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1 policeman who beat up people in the street.

2 Even if the Serb side had thought that he belonged to the other

3 side, which is not the case, one could not speak of the crimes that fall

4 within the competence of the Tribunal. Namely, there is no mens rea that

5 can replace or fill the absence of an objective and vital element such as

6 actus reus, that the crime committed against the opposite side in the

7 conflict. Nor is it sufficient to suspect that a person belonged to the

8 other side. What is necessary is certain and unequivocal proof of that,

9 which in this case is missing.

10 This opinion is elaborated and supported by Judge Cassese in his

11 work published in 2003 titled "International Criminal Law," Oxford

12 University Press, page 48, and he illustrates this opinion using cases

13 Piltz and Motosuke.

14 The freshest and a very firm impression we have is that left by

15 Witness KV1, obviously a Muslim who had been detained in Keraterm. With

16 his testimony provided in rebuttal, this witness was emphatic when saying

17 that he had neither seen nor heard Zigic during the killing of Drago

18 Tokmadzic. He would have had to see or hear him under the circumstances

19 if Zigic had indeed participated in this killing.

20 Similarly, in his testimony this witness confirmed the case of

21 the Defence that in this specific case, it was a member of Serb forces

22 who was killed. On this issue, the balance of probabilities is certainly

23 on the side of the Defence. However, since this is an important element

24 of the act, we believe that even this test is not appropriate and that

25 the Prosecution must prove that Tokmadzic belonged to the opposite side

1 in the conflict beyond any reason doubt.

2 The next grounds of appeal, numbers 20 and 21, relate to the

3 torture of Abdulah Brkic. According to paragraph 685 of the judgement,

4 Zigic was convicted also for the torture of Abdulah Brkic. The

5 conviction stands only on the basis of the testimony of one single

6 witness, Abdulah Brkic himself. There is no other corroborating

7 evidence. However, Brkic himself said, and I'm quoting, "But Zigic never

8 did me any harm. He never touched me." As we can read on page 4482 of

9 the transcript. As a matter of fact, Zigic not only did not participate

10 in the torture of Brkic, but he saved him from it; and that is why he is

11 even more -- he is even harder hit by this conviction.

12 The indictment against Zigic does not follow up on or invoke

13 Annex D regarding count 12 which relates to the torture of Abdulah Brkic.

14 It invokes Annex D only with reference to acts under counts 1 to 3 which

15 we can see from paragraphs 25 and 32 of the latest indictment.

16 Grounds for appeal number 24 relates to the torture of Witness

17 AK. It is the position of this Defence that Zigic committed the act of

18 cruel treatment of Witness AK, and that is confirmed by statements and

19 testimonies of a number of witnesses as well as by the admission and

20 repentance of Zigic himself. However, there is no evidence that he did

21 what he did in order to discriminate against AK as a Muslim as an element

22 of torture which is what paragraph 597 of the judgement says. On the

23 contrary. He committed this act for purely personal reasons, as he said

24 himself. Why would he otherwise pass up on hundreds of other Muslims in

25 Omarska without harming any one of them before he reached AK?

1 Follow grounds for appeal number 25, 26, and 27, relating to the

2 torture of Witness AJ and Asef Kapetanovic, and cruel treatment of Emir

3 Beganovic. Evidence that Zigic participated in the torture of these

4 persons are very unreliable. Zigic did not intend to hurt Emir

5 Beganovic. The Defence explained this in great detail in its appellant's

6 brief, paragraphs 281 to 309.

7 The next ground for appeal is number 28, torture of Fajzo

8 Mujkanovic in Keraterm. The conviction of Zigic for this criminal act is

9 based on one single piece of evidence, evidence provided by the

10 Prosecution witness Abdulah Brkic. Four other witnesses, two proposed by

11 the Prosecution and two proposed by the Defence are completely ignored by

12 the Trial Chamber for the reason that they are only favourable to the

13 Defence. At least that is our opinion. Although the witnesses of this

14 event, these witnesses make no mention of the fact that Zigic was present

15 during the incident. We are talking about eyewitnesses.

16 These eyewitnesses do not mention Zigic as being present.

17 However, even witness Abdulah Brkic states that Mujkanovic was tortured

18 by another person, whereas Zigic was allegedly only present and did not

19 participate in the mistreatment of Fajzo Mujkanovic as we can see from

20 the transcript, page 4483.

21 From this testimony, the Trial Chamber drew the conclusion that

22 Zigic was co-perpetrator in this torture. Not an instigator, not an

23 aider or abettor, but precisely co-perpetrator, only on the basis of the

24 testimony that Zigic was present, present but not participating in the

25 act, contrary to the testimony of the other four witnesses.

1 The same Chamber, in paragraph 257 of the same judgement,

2 determined the standards under which a person could be convicted for mere

3 presence but only as an abettor. However, where Zigic is concerned, the

4 Trial Chamber failed to adhere to its own standards.

5 In addition to these standards, we would add a conviction also

6 requires an appropriate mens rea with the person present, but the

7 judgement, of course, did not even try to take that into consideration.

8 The following grounds of appeal are numbers 29 and 30, and they

9 relate to the torture of Redzep Grabic and Witness AE. In its submission

10 of the 3rd of July, 2002, the Defence erroneously interpreted its

11 appellant's brief of argument in stating that there were no charges

12 against Zigic for the torture of Redzep Grabic. However, this statement,

13 in fact, refers to Witness AE as has correctly been stated in

14 paragraph 329 of our appellant's brief of argument.

15 Neither in the indictment nor in any confidential supplement has

16 Zigic been specifically charged with the torture of Witness AE, either

17 under the pseudonym or under his real name. However, Zigic was convicted

18 of the torture of Witness AE as stated in paragraph 691(C) of the

19 judgement.

20 The conviction of Zigic for the alleged beating of Redzep Grabic

21 and Witness AE is based exclusively on the testimony of a single witness,

22 namely, Witness AE, a witness who, although he says that he has known

23 Zigic for a long time and that Zigic beat him, was unable to recognise

24 Zigic in the courtroom. We are really not aware of a case anywhere in

25 the world where someone was convicted of a serious crime on the basis of

1 the testimony of a single witness who could not recognise the

2 perpetrator, who could not identify the perpetrator.

3 The Trial Chamber, aware of this, in order to strengthen this

4 statement claims that this single witness correctly described Zigic in

5 the given situation. First of all, as this is the only witness of the

6 alleged event, the Trial Chamber could have reached such a conclusion

7 only if it had been present at the event itself. And secondly, Witness

8 AE described Zigic completely wrongly compared to some 60 or so witnesses

9 who mention Zigic from that time.

10 This alleged beating occurred between the 22nd and the 27th of

11 June, 1992, and Zigic, as has been proved by the documentation adduced

12 and other evidence, was hospitalised from the 21st to the 26th of June,

13 1992, and underwent major surgery.

14 The next grounds of appeal, 31 and 32, relate to the torture of

15 Jasmin Ramadanovic, also known as Sengin. Several witnesses mentioned

16 that this person was beaten on several occasions in various circumstances

17 and by various people. On one occasion, he had to be hospitalised

18 because of serious injuries.

19 The Trial Chamber concluded that it was Zigic who inflicted these

20 serious injuries. However, not a single piece of evidence shows that

21 Zigic beat Ramadanovic on that particular occasion, and there is no

22 evidence about the gravity of the injuries he inflicted if something like

23 this happened. The only witness supporting the conviction here was

24 Witness N, as opposed to three witnesses who claimed that it wasn't Zigic

25 but somebody else who did this. However, the Trial Chamber is

1 speculating without evidence and to the detriment of the Defence by

2 stating that these witnesses saw others -- other beatings of Ramadanovic,

3 not the beating that Zigic participated in, that is, that they saw other

4 events.

5 Witness N was also very incredible, and we have given detailed

6 reasons to support this beginning with the witness's claim that he used

7 to recognise Zigic in Keraterm because he had a scar on his chin. During

8 the proceedings, it was proved that Zigic acquired this scar on the 19th

9 of August, 1992, that is, after Keraterm was disbanded.

10 The Trial Chamber, from testimony to the effect that Zigic beat

11 Ramadanovic because he allegedly belonged to the Green Berets draws the

12 conclusion that he did this on the basis of ethnic, religious, and

13 political discrimination. However, the Green Berets were an illegal

14 paramilitary group.

15 The following grounds of appeal are numbers 33 and 34, and they

16 relate to cruel treatment of Hasan Karabasic. In this particular case,

17 there is no evidence to show that this family meeting which occurred

18 outside the Trnopolje complex or compound in which Zigic allegedly pushed

19 his best man Hasan Karabasic with one hand because of some family

20 arguments had any serious consequences. Karabasic was Zigic's best man,

21 and previously he had been detained in Keraterm where Zigic looked after

22 him in the best possible way.

23 There is no evidence that any behaviour by Zigic caused serious

24 suffering for the victim which would be a condition for the act of which

25 he has been convicted. This is a truly trivial event, as the Prosecution

1 itself states in its consolidated response to the appeals of the accused.

2 We are not aware that in the tangible, substantial history of this

3 Tribunal anyone has been convicted of a more trivial offence. This part

4 of the trial, in fact, is much more significant as evidence of the unfair

5 treatment of Zigic both by the Prosecution and by the Trial Chamber.

6 For example, although in all the written statements supporting

7 the indictment, Prosecution witnesses claim that this event took place on

8 the 6th of August, 1992, Zigic has been indicted for the period from the

9 26th of May to the end of August, 1992, in order to create an erroneous

10 impression that he was constantly present at Trnopolje.

11 On the other hand, there is another example proving that in the

12 Zigic case the Prosecution is not fighting for truth and justice. It is

13 fighting against Zigic. For example, the testimony of a key witness, a

14 key Prosecution witness, that this event took place outside the Trnopolje

15 compound has been deliberately misrepresented to the Trial Chamber to

16 make it look as if the event took place within the compound. Later on,

17 the Prosecution, in its response to the appeals for the first time and

18 without any explanation, claims that the witness is unclear as to this.

19 Everything relating to this event has been dealt with in detail by the

20 Defence in its final trial brief. However, all serious arguments are

21 avoided in the judgement and a warped and incorrect picture of the

22 Defence is presented. This goes so far as to use certain statements from

23 the final trial brief of the Defence against the accused.

24 Grounds for appeal number 35 and 36 relating to the beating of

25 Witness V.

1 JUDGE SHAHABUDDEEN: Mr. Stojanovic, it would help some of us on

2 the Bench if you would be kind enough to just refer to the particular

3 paragraph in the impugned judgement which is under reference. As you go

4 along and you come to particular incidents, would you kindly refer to

5 particular paragraphs of the impugned judgement.

6 MR. STOJANOVIC: [Interpretation] Certainly, Your Honour. I may

7 have omitted to do so at many points during my presentation today because

8 I was trying not to be repetitive, but I believe there are many

9 references to the judgement, and there will be more still.

10 In paragraphs 650 and 651 of the judgement, it is determined that

11 Zigic beat up Witness V, and he was convicted of this as reads

12 paragraph 691 of the judgement. However, in the indictment or the

13 annexes to the indictment, there is no charge of beating of Witness V.

14 Instead, in Annex D, in the section headed Persecutions, it says:

15 "Detention in inhumane conditions in the period from the 14th of June to

16 the 5th of August, 1992." And this is what Zigic is charged with.

17 Zigic cannot be responsible for this act, much less for that

18 entire period. He did not detain anyone.

19 As far as this act is concerned, the emphasis is certainly on

20 detention as an act of execution instead of the language of the

21 indictment for which Zigic cannot be held responsible, the Trial Chamber

22 convicted him for an entirely different act. In any case, when

23 convicting for this act, the Trial Chamber omitted to determine and

24 explain vital elements of the act, especially its discriminatory nature

25 and intent.

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1 Grounds for appeal number 37 and 38 and the beating of Edin

2 Ganic. Paragraphs up to 666 of the judgement. This is based only on the

3 testimony of Edin Ganic and his father Husein Ganic whose testimonies

4 are mutually contradictory. Both witnesses are extremely unreliable and

5 moreover, there is evidence in the case that they perjured themselves.

6 Thus, for instance, Edin Ganic said he witnessed the killing of Drago

7 Tokmadzic at Keraterm, although he arrived at Keraterm several days after

8 that killing.

9 Husein Ganic is a witness who did not even acknowledge the

10 signature that had been proven to belong to him, thus disabling the

11 Defence from questioning him about the circumstances which he described

12 in his earlier written statement. This witness at certain moments makes

13 statements which can in no way be attributed to a clear -- a clearly

14 thinking, sane person. The Defence has already corroborated this opinion

15 with an abundance of argument.

16 When convicting Zigic for the persecution of Edin Ganic, the

17 Trial Chamber omitted to determine the existence of discriminatory intent

18 in Zigic. From the words of Edin Ganic himself, we can see that Zigic

19 did not have any discriminatory intent as prescribed by Article 5 of the

20 Statute.

21 The next ground for appeal is number 39. Consistent pattern of

22 conduct as evidence has not been correctly applied by the Trial Chamber,

23 in our view. The judgement does not link any specific act to this proof.

24 In failing to do so, the Trial Chamber violates the provision of

25 paragraph 2 of Rule 93, which makes it obligatory to observe Rule 66. In

1 addition, many facts were determined inaccurately and everything is based

2 on the statement of one or two already very highly incredible witnesses.

3 A detailed explanation of all this was provided by the Defence in

4 paragraphs 369 to 389 of the appeals brief.

5 It is also important to review how and why the Trial Chamber had

6 no objection at all to the testimony of Husein Ganic.

7 I am trying to skip certain things in order to be brief.

8 The following grounds of appeal are 40 and 41, relating to

9 persecutions. This act, as well as its gravity, depend in the largest

10 part on the acts that have been discussed earlier, with additional

11 elements such as discriminatory intent as well as systematic nature and

12 widespread character. The judgement gives no explanation of the alleged

13 persecution by Zigic of persons named in paragraph 691(A).

14 Zigic was convicted for the persecution of all persons in Omarska

15 for the entire duration of the existence of that complex, of that camp,

16 whereas he spent only half a hour in Omarska, and there he participated

17 in the beating of one prisoner for purely personal motivations. In

18 addition, he had no duties whatsoever in Omarska. No responsibilities.

19 Especially conspicuous is the absence of reasoning regarding

20 discriminatory intent, and this has already been mentioned in dealing

21 with other grounds for appeal. By this omission, the Trial Chamber

22 violated its own stance stressed in paragraph 203 of the judgement,

23 according to which it always determined the existence of discriminatory

24 intent whenever the issue arose, although even this stance is profoundly

25 wrong because the Trial Chamber has to determine the existence of that

1 intent even when the issue does not arise. In Zigic's case, that stance

2 has been violated as well.

3 Generally speaking, the Trial Chamber pointed out several times

4 that it does not dispose of admissible criteria regarding evaluation of

5 discrimination in the light of Article 5 of the Statute. Let us recall

6 only the example from paragraph 560 of the judgement.

7 In this judgement - and that seems to be the practice in other

8 cases as well - it is unjustifiably believed that it is sufficient to say

9 that Serbs persecuted non-Serbs on a racial, political, or religious

10 basis. We believe that this basis, first of all, has to be determined

11 precisely, because persecution can be carried out for different reasons

12 on different grounds as well. The very division into Serbs and non-Serbs

13 is also completely groundless, especially bearing in mind that there were

14 many non-Serbs on the Serbian side, just as there were many Serbs on the

15 side of non-Serbs.

16 Why would it suddenly occur to the Serbs, after several centuries

17 of peaceful co-existence, to suddenly start persecuting Muslims? It is

18 our deep conviction that the basic criterion for division should be into

19 those who voted for staying within the country of Yugoslavia as opposed

20 to those who voted to separate from Yugoslavia. There lies the basis for

21 later discrimination.

22 We do not dispute that later, within the context of that

23 political division, religion and ethnicity were abused to a certain

24 extent. It is clear to everyone that there would be no conflict as such

25 had it not been for that division. If the Croats had voted in favour of

1 Yugoslavia, there would never be a war in Croatia. Had the Muslims voted

2 for Yugoslavia, there would have never been a war or persecution in

3 Bosnia and Herzegovina, just as there had been none until that issue came

4 up. This is something that every Muslim and every Croat would confirm.

5 That means, furthermore, that the conflict would never break out

6 just because some people were Serbs, other Muslims, and yet other Croats.

7 However, in a case like this, it may be the case that there was

8 persecution on a political basis. Had the Chamber established this, in

9 our view this would in some way constitute a milder form of persecution

10 as opposed to racial or religious persecution. We have already said that

11 political persecution may even be something quite permissible, especially

12 in a war. It is quite normal for every political party that assumes

13 power to replace the previous political officials in power without

14 providing any reasons or grounds for this, purely for political reasons.

15 It is even more normal in a wartime conflict for members of the opposite

16 side and their sympathisers not to be appointed to key positions.

17 I have to tell you that persecution of enemies in wartime is

18 frequently a usual imminent occurrence and may, at times, be permissible.

19 So it is necessary to draw a distinction with what is permissible and

20 what is not. I feel that the jurisprudence of this Tribunal has not yet

21 been fully elaborated in this respect.

22 All this is even more complicated in a civil war such as the war

23 in Bosnia and Herzegovina where, very often, especially in Prijedor,

24 there was no demarcation line at the front between the warring sides, but

25 the warring sides, as fellow citizens, were often mixed with each other.

1 There seems to be another problem here. It seems to us that a

2 civil war is waged most often by civilians, as the name itself says,

3 especially at the beginning of such a conflict. However, the Geneva

4 Conventions are in conflict with this fact.

5 All these problems, like many others, have not been taken into

6 account by the Trial Chamber. The Trial Chamber did not take into

7 account our standpoint that in the case of persecution, the actus reus

8 may be aimed against an individual, but the mens rea, especially as an

9 element of widespread discrimination, has to be aimed against a group.

10 This means that the attitude of the perpetrator to the group as a whole

11 has to be evaluated. To say there was discrimination on political rather

12 than racial or religious grounds would not only be more correct and true

13 but would also contribute better to the reconciliation of the peoples on

14 the territory of the former Yugoslavia.

15 Religious and ethnic differences remain, but the political

16 division into those who are in favour of remaining in Yugoslavia and

17 those who wanted to separate from it has been politically transcended.

18 Yugoslavia no longer exists. There can no longer be any discrimination

19 on this basis, but there can be on religious -- on a religious or ethnic

20 basis. Acknowledging that the real reason of discrimination was

21 political will calm down ethnic and religious passions, while attributing

22 discrimination to ethnic and religious affiliation will only fan the

23 flames further.

24 The next ground of appeal, number 43, relates both to erroneous

25 evaluation of certain mitigating circumstances and to a failure to take

1 such circumstances into consideration. Thus, for example, inadequate

2 attention was paid to the fact that Zigic, at the time of the commission

3 of all the offences he has been charged with, was seriously injured and

4 that it was then that his finger was amputated, for which reason he spent

5 a certain period of time in hospital and is still an invalid today.

6 This injury had serious psychological and physical consequences.

7 Great pain and the loss of his index finger created in him a negative

8 psychological state, but also they made it impossible for him to use this

9 hand, especially to beat up other people. Finally, large bandages on his

10 hand were a conspicuous identifying characteristic.

11 In paragraph 746 of the judgement, his surrender to the Tribunal

12 in April 1998 is not treated as a mitigating circumstance because he did

13 this while he was in prison in Banja Luka for another crime. In the view

14 of the Defence, this, without a doubt, is a mitigating circumstance,

15 although maybe of less weight than had he surrendered while at large. In

16 that period of time, nobody surrendered voluntarily, nor was

17 Republika Srpska extraditing accused persons. It is enough to remember

18 who was then in power in Republika Srpska. So there was no chance of him

19 being extradited unless he wanted to surrender.

20 No attention was paid to Zigic's admission to having perpetrated

21 certain crimes and his public apology to the victims and expression of

22 remorse. That this was important can be seen in the grounds of the

23 judgement using this part of Zigic's statement in order to convict.

24 When sentencing, the Trial Chamber also took account of the

25 conviction for imprisonment in inhumane conditions as stated in

1 paragraphs 764 and 766 of the judgement, while according to paragraphs

2 691 to 693 of the judgement, Zigic was not convicted of this offence.

3 Finally, we shall illustrate the extent to which the positions on

4 the length of the sentence of the Trial Chamber differ from the

5 jurisprudence of this Tribunal by adducing an example starting from the

6 fact that Zigic really did -- assuming, that is, that Zigic actually

7 perpetrated everything that he has been convicted of.

8 Zigic and Predrag Banovic, who was tried in case IT-02-65/S,

9 according to what has been established so far, perpetrated practically

10 the same crimes. They beat up people detained in camps and some people

11 died of the beatings. The murder of one person, Drago Tokmadzic, and the

12 beatings of two other prisoners is a common joint offence. However,

13 Predrag Banovic committed five murders while Zigic committed four.

14 Predrag Banovic committed 27 specific beatings and Zigic perpetrated

15 almost three times less, that is ten, including cruel treatment of Hasan

16 Karabasic.

17 We feel that the responsibility of Banovic, who was a guard

18 entrusted with the lives of these people is all the greater for that.

19 Zigic, as has been said, surrendered; while Banovic, in order to evade

20 responsibility before the Tribunal, fled to another country and hid there

21 until he was caught and forcibly transferred here. Banovic entered into

22 a plea agreement with the Prosecution which on this basis desisted from a

23 further three murders he had been charged with. That is, there were a

24 total of eight.

25 Zigic did try to enter into a plea agreement with the Prosecution

1 but only at the appeal stage because this was not possible with the

2 previous Prosecution team. But he was not successful in this.

3 It still has to be said that he confessed to some crimes and

4 publicly expressed remorse, while Banovic, according to the Prosecution,

5 did not display any substantial cooperation with the Prosecution. We

6 feel that the facts relating to Banovic are well known at this Tribunal,

7 and we adhere to the rule notoria non probatur.

8 Now to refer to the standard of reasonable trier of fact. There

9 is no doubt that anyone would say that Zigic deserved a lesser sentence

10 than Banovic.

11 JUDGE SHAHABUDDEEN: [Previous translation continues]... Going on

12 to a new ground or a new phase of the argument? Would this be a

13 convenient time do you think?

14 MR. STOJANOVIC: [Interpretation] Certainly, Your Honour. I will

15 continue where we stopped. I have been trying to be brief, but I do

16 believe this is very tiring for you. I think I have a little time left,

17 and I will certainly finish before the end of the next session.

18 JUDGE SHAHABUDDEEN: When you return, it would help me in

19 particular if you would advert to the last sentence of paragraph 746,

20 which gives a reason why the Trial Chamber did not consider the fact of

21 surrender to be a mitigating circumstance. It explained there, it said

22 "Due to the fact that Zigic was imprisoned in Banja Luka at the time he

23 surrendered to the Tribunal, the Tribunal does not consider his surrender

24 to be a mitigating factor." That's just for you to reflect on and come

25 back and to assist us.

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1 Thank you. Thank you.

2 MR. STOJANOVIC: [Interpretation] Thank you.

3 JUDGE SHAHABUDDEEN: We will now suspend for 30 minutes. Thank

4 you.

5 --- Recess taken at 4.00 p.m.

6 --- On resuming at 4.30 p.m.

7 JUDGE SHAHABUDDEEN: The sitting is resumed. Mr. Stojanovic.

8 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. If you

9 permit me, first I would like to respond to your question which I have

10 considered in the meantime.

11 Mr. Zigic has given me the information that even on the official

12 list of the Tribunal, he is being considered a person who voluntarily

13 surrendered. In our appellant brief argument, paragraphs 421 to 422, we

14 provided a more detailed explanation on this matter and the opinion of

15 the Trial Chamber and gave a comment why we believe that this is a

16 mitigating circumstance. I would like to read those two paragraphs if

17 you permit us. The text is in English. I hope that the interpreters

18 will not take it ill.

19 [Previous translation continued]... [In English] It is stated:

20 "That he was known by policemen of the Omarska Police Station as a petty

21 criminal. However, this conclusion has no grounds at all, particularly

22 since Zigic never had anything to do with the Omarska Police Station."

23 In the same paragraph it is stated that: "The fact that Zigic

24 surrendered to the Tribunal while he was in prison in Banja Luka, the

25 Trial Chamber does not consider as a mitigating factor. The Defence is

1 of the opinion that here the Trial Chamber erred. At that time, the

2 authorities in the Republika Srpska in which, for instance, Momcilo

3 Krajisnik and Biljana Plavsic held high positions would most certainly

4 have not extradited Zigic to the Tribunal without his request. Besides,

5 his conviction in the Republika Srpska was not effective yet, so his stay

6 in prison was still considered as detention. He might also have expected

7 withdrawal of the indictment raised against him by the Tribunal. At

8 about the same time, charges against 14 persons were actually dropped,

9 and he was among those mentioned in the same indictment. All the above

10 shows that his surrender must be of significance as a mitigating factor,

11 maybe not of the level it would have had if in fact he had been at large,

12 but of significance it has to be. In any case, if the issue of surrender

13 is viewed from the aspect of making it easier for the Tribunal to

14 commence trials according to its indictments, then Zigic's surrender has

15 the same significance as surrender of free persons."

16 [Interpretation] This is what we stated in our appeal.

17 Unfortunately, we've had to cut short a lot of that in our submissions

18 today, and if you permit me, I would like to continue. Just to remind

19 you, we stopped at a comparison of the Banovic and Zigic convictions

20 where we previously said that Zigic was convicted for four and Banovic

21 for five killings and Zigic for 10 and Banovic for 27 beatings. And we

22 indicated a series of circumstances which could have a bearing on this

23 matter.

24 Then we recalled the standard of a reasonable trier of fact.

25 There is no doubt that Zigic should be given a less severe

1 sentence than Banovic. Of course I agree with that in the context of all

2 the circumstances. But something has happened which cannot be justified

3 by any arguments or plea bargains. Zigic was given a three times more

4 severe sentence than Banovic. Banovic, for all of this, was sentenced to

5 eight years' imprisonment while Zigic, for a lesser number of the same

6 type of acts, was sentenced to 25 years.

7 We believe that such a ratio not only harms the individuals who

8 are being tried but it also subverts the authority of the Tribunal.

9 The next ground of appeal is number 46 which relates to the claim

10 that the Trial Chamber was biased. We admit that here we indicate the

11 least popular grounds in any case to appeal a judgement. A good argument

12 is required for such an assertion. I believe that through our previous

13 submissions, we already provided several examples which address this

14 matter. We mentioned that practically all the convictions were made

15 while fully ignoring the Defence. When we say "ignore," it means that

16 they were not mentioned nor was it indicated in any way that the

17 submissions of the Defence were weighed and taken into account. Of

18 course the Chamber is not obliged to mention every single piece of

19 evidence, but it cannot simply fail to mention about ten eyewitnesses and

20 then base its decision on speculation with a couple of items of

21 circumstantial or hearsay evidence.

22 In the case of the killing of Drago Tokmadzic, 11 witnesses were

23 not mentioned while the conviction was based on contradictory and hearsay

24 statements of the remaining two witnesses. We also mentioned examples

25 with the witness Abdulah Brkic when the Defence was not permitted to

1 question him about the killing of Becir Medunjanin at the time when the

2 witness said that he was familiar with this incident. There is also the

3 example with the questioning of the Witness T and his recognition of

4 Zigic in the courtroom. We said that all of the Defence evidence was

5 ignored in other cases as well.

6 Exceptionally, they were weighed and assessed only in those small

7 parts where these statements led to convictions.

8 But how, then, can witnesses be believed in 1 or 2 per cent of

9 their statement if they're not believed in everything else? An

10 indicative example here is also Defence Witness DD10. The witness was

11 invited to respond to the question of whether Zigic participated in the

12 killing of Medunjanin and the witness categorically stated that he did

13 not. However, the witness is mentioned in the judgement only when it was

14 necessary to establish the responsibility of almost all of the accused,

15 and in particular, Zigic. The witness is mentioned as proof that

16 Medunjanin was beaten, then that Medunjanin succumbed to the beating, and

17 the evidence charges Zigic for this. But the only thing that is not

18 mentioned is the categoric statement of the witness that Zigic did not

19 take part in this at all.

20 Even in the event of acquittal, the Defence was fully ignored.

21 So when we're talking about the decision regarding the charges for the

22 massacre in Keraterm which took place on the 24th of July, 1992, all

23 seven eyewitnesses of the Defence were ignored while the remaining three,

24 who were alibi witnesses for Zigic, were said that they were not

25 believable. That is why we are convinced that the Appeals Chamber here

1 has quite a specific case in its to-date practice.

2 The jurisprudence and especially the case law of the Tribunal

3 were used quite selectively while, for example, the case law from the

4 Celebici case is extensively used for the purposes of conviction.

5 Opinions from the same case to which the Defence pointed were totally

6 left out. The Trial Chamber did not even dwell on that.

7 Finally, grounds of appeal number 47 in which it is generally

8 stated that it refers to all other grounds defined in the appellant's

9 brief but not mentioned here in this submission. This is something that

10 can be objected to, indeed, which is exactly what the Prosecution does in

11 claiming that it seems a little bit vague. But our appellant's brief is

12 a total of 130 pages long.

13 So what can we then say about charges encompassing all killings

14 and all beatings in Omarska? We cannot find out everything about that,

15 not even from at least half a million pages, which is what our case file

16 runs to, including all the disclosed material.

17 And to conclude, our submissions today constitute just a minor

18 part of what we have stated in our appellant's brief and in our reply to

19 the Prosecution's response. We have tried to base our submissions always

20 on evidence and sound arguments.

21 And finally, please allow me to say in spite of all these serious

22 qualifications, once again to say and to express my personal great

23 satisfaction for my participation in this large, complex, strenuous and

24 responsible case before the Trial Chamber and also before this Appeals

25 Chamber. This is an invaluable experience for me, and in spite of all

1 the difficult moments, it has been one of the highlights of my profession

2 and my career to date.

3 Thank you very much.

4 JUDGE SHAHABUDDEEN: Thank you very much, Mr. Stojanovic, for

5 your very helpful submissions. I turn to my colleagues on the Bench.

6 There are no questions, Mr. Stojanovic. That does not indicate

7 by any means a lack of interest in what you have said. Thank you very

8 much.

9 So now the next thing - and I congratulate you, particularly for

10 finishing before the scheduled time - I would turn to the Prosecution.

11 We still have some time. I don't know whether the Prosecution is in the

12 position to commence its arguments now.

13 MR. CARMONA: Your Honour, regrettably we were caught out, in

14 fact, by the really precipitous, if I may say so, ending of my learned

15 colleague's submission. In these circumstances we are not in a position

16 to finish today but I can assure you in fact that we will be assiduous

17 and as prompt in our submissions tomorrow, if it is allowed.

18 JUDGE SHAHABUDDEEN: Yes. Well, it's only an inquiry made out of

19 curiosity because you are scheduled to begin tomorrow at 9.00.

20 MR. CARMONA: Indeed. Much obliged.

21 [Trial Chamber confers]

22 JUDGE SHAHABUDDEEN: Well, then, we will adjourn now until 9.00

23 tomorrow morning. Thank you very much.

24 --- Whereupon the hearing adjourned at 4.49 p.m.,

25 to be reconvened on Thursday, the 25th day of

1 March, 2004, at 9.00 a.m.

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23

24

25