Tribunal Criminal Tribunal for the Former Yugoslavia

Page 671

1 Wednesday, 21 July 2004

2 [Appeal Proceedings]

3 [Open session]

4 [The appellants entered court]

5 [The appellant Kvocka not present]

6 --- Upon commencing at 9.06 a.m.

7 JUDGE SHAHABUDDEEN: Good morning. The Bench apologises to you

8 for the few minutes of lateness. We were engaged -- the colleagues were

9 engaged in another matter, but now we're ready to go.

10 Madam Registrar, would you please call the case.

11 THE REGISTRAR: Good morning, Your Honours. Case number

12 IT-98-30/1-A, the Prosecutor versus Miroslav Kvocka, Mladjo Radic, Zoran

13 Zigic, and Dragoljub Prcac.

14 JUDGE SHAHABUDDEEN: This hearing is continuing this morning with

15 the taking of the evidence of Witness KV4, so let me inquire if everyone

16 can hear me in the courtroom, and I think also elsewhere as well?

17 Mr. Re, would you have any objection to the name of the country

18 from which the video is being transmitted being mentioned?

19 [Prosecution counsel confer]

20 MR. RE: Certainly not in closed session, as everyone in the

21 courtroom is aware of it, but in open session this witness has particular

22 concerns.

23 JUDGE SHAHABUDDEEN: Okay. Well now, can the interpreters hear

24 me?

25 THE INTERPRETER: Yes, Your Honour.

Page 672

1 JUDGE SHAHABUDDEEN: The appellants? And the Defence counsel?

2 And the counsel for the Prosecutor? Yes. Yes. Well, thank you very

3 much. The appearances are as before.

4 I would like to make a few brief introductory remarks before we

5 proceed with the evidentiary phase of this appeal hearing. We have heard

6 yesterday Witness KV3, who was an additional witness admitted on appeal

7 by a decision dated 12 March 2004, the Appeals Chamber found also

8 admissible as rebuttal material the evidence contained in the witness

9 statement submitted by Prosecution Witness KV4. By order dated 2 July

10 2004, that witness was called to testify in this case as a rebuttal

11 witness. The order dated 2 July 2004 granted certain provisional

12 measures to Witness KV4, who will testify today with voice and facial

13 distortion.

14 So now, can we turn to the other place. Yes. The witness is

15 there before me.

16 [Witness testified via videolink]

17 JUDGE SHAHABUDDEEN: Good morning, Witness. Can you hear me?

18 THE WITNESS: [Interpretation] Yes, I can.

19 JUDGE SHAHABUDDEEN: Well, could you please read the solemn

20 declaration given to you by the usher.

21 THE WITNESS: [Interpretation] I solemnly declare that I will

22 speak the truth, the whole truth, and nothing but the truth.

23 JUDGE SHAHABUDDEEN: Thank you. You may sit down. Thank you.

24 THE WITNESS: [Interpretation] Thank you.


Page 673

1 [Witness answered through interpreter]

2 JUDGE SHAHABUDDEEN: Well, by orders dated 2 July and 14 July

3 2004, this witness was granted the pseudonym KV4 and will be testifying

4 with voice and face distortion, as I said a while ago.

5 I remind all parties to use this pseudonym at all times during

6 this hearing.

7 Now, Madam Registrar in the place in which the witness is

8 sitting, could you show the witness his name on a sheet of paper and

9 proceed with the usual form for identification of the witness.

10 THE VIDEOLINK REGISTRAR: Can you identify that this is your

11 name.

12 THE WITNESS: [Interpretation] Yes, that is my first and last

13 name.

14 JUDGE SHAHABUDDEEN: Good. Good. Well, Madam Registrar over

15 there, may I remind you that you are an officer of the court; you are

16 aware of the nature of the proceedings and of the nature of the mission

17 which you have undertaken and of the identity of the witness concerned.

18 So now, may I turn to the registrar here and ask the registrar to

19 do likewise in relation to defence counsel, prosecuting counsel, and the

20 Bench.

21 Thank you, Witness KV4. You are here to testify in the appeal

22 proceedings in the case of the Prosecutor against Miroslav Kvocka and

23 others. The Prosecution will be the first to ask you questions, and you

24 will be cross-examined by counsel for the appellant Mr. Zigic. The other

25 appellants or their counsel may also be asking you questions. The Judges

Page 674

1 may at any time intervene and certainly will reserve a time when they

2 will en bloc ask you questions if they wish.

3 So, Mr. Counsel for the Prosecution, would you open.

4 MR. RE: Yes. Thank you, Your Honours.

5 Examined by Mr. Re:

6 Q. Good morning, Mr. KV4. Can I ask you first of all whether you

7 can firstly clearly see and hear me?

8 A. Yes, I can hear you well. But I can't really see you.

9 Q. My name is David Re. I'm going to ask you some questions about

10 your time in Omarska for the Prosecution. I'm going to ask you some very

11 general questions at first, very briefly, then take you to a specific

12 incident which is the focus of our attention here today.

13 Firstly, your -- can you please tell the Appeals Chamber your

14 ethnicity.

15 A. I'm a Bosniak, a Muslim.

16 Q. And were you living in the Prijedor region in May 1992?

17 A. Yes.

18 Q. And were you arrested on the 31st of May, 1992 by armed Serbs and

19 taken to the Prijedor police station and put on a bus to Omarska?

20 A. Yes. On the 31st of May, 1992 I was taken from in front of my

21 house on foot together with my other neighbours, from my house through

22 the village of Cereke up to the Raskovac neighbourhood --

23 JUDGE SHAHABUDDEEN: [Previous translation continues] ...

24 MR. RE: No, they're certainly not. I was just bending down

25 because I'm getting no interpretation on the channel.

Page 675

1 JUDGE SHAHABUDDEEN: [Microphone not activated] No, I said that

2 these are not disputed matters.

3 THE INTERPRETER: Microphone, Your Honour, please.

4 MR. RE: No, they're not.

5 Q. Mr. KV2, were you kept --


7 MR. RE: I apologise. I do apologise.

8 Q. Mr. KV4, when you arrived at Omarska, were you kept with a number

9 of other prisoners on an area called the pista, an outdoor area?

10 A. Yes. Upon arriving at Omarska, together with the other

11 prisoners, I was on what was known as the pista. It is an asphalted area

12 between two buildings.

13 Q. And were you kept outside on the pista for the whole -- for a

14 considerable period after you arrived there?

15 A. Yes. After I arrived, I was on the pista for about a month. And

16 before leaving Omarska, for another ten days, roughly.

17 Q. And did you leave Omarska in August 1992? When the camp closed,

18 were you taken to another camp called Trnopolje?

19 A. From Omarska, I was taken on the 3rd of August, 1992. Actually,

20 I left Omarska three days before Omarska started to be dismantled.

21 Q. In 1992, before you went to Omarska, did you know a person called

22 Becir Medunjanin?

23 A. Yes, I did know him.

24 Q. How well did you know him?

25 A. Actually, I knew his wife better, because we are the same

Page 676

1 generation. We would meet occasionally in Prijedor, as he lived in the

2 neighbourhood called Kozarac.

3 Q. Did you know his sons?

4 A. No, I didn't.

5 Q. Did you see Mr. Medunjanin when you were detained at Omarska?

6 A. I saw him only once, in the so-called "white house."

7 MR. RE: Could the witness please be shown a copy of the diagram

8 tendered yesterday, which has a number on appeal.

9 Q. Mr. KV4, where was the "white house" in relation to the pista?

10 A. I don't know exactly what you mean. When you reach the pista

11 from Omarska, the "white house" was to the right of the pista.

12 Q. If you just look at the diagram which is on the ELMO or the

13 colour photo on the ELMO. Do you recognise that as an overhead

14 photograph depicting the rooms inside the building you described as the

15 "white house"?

16 A. The rooms are marked with "A1" to "A6". Is this the layout of

17 the "white house"? Yes, it is. I think so.

18 Q. You said you saw Mr. Medunjanin only once in the "white house".

19 I want you to tell the Appeals Chamber the circumstances. Where were you

20 before you went into the "white house" and why did you go into the "white

21 house"?

22 A. As I have already said, we were on the pista. When there is a

23 storm or a heavy rain and wind, in that case the prisoners from the pista

24 were put up in other premises in the camp to protect them from the

25 weather. I think it was around the 20th of June - I'm not sure about

Page 677












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Page 678

1 that, but round about then - there was a heavy storm, and together with a

2 group of prisoners I was ushered into the "white house" until the storm

3 waned. Entering the "white house," in the room on the left, as the doors

4 were half in glass, I saw Sadeta and Becir as I passed by.

5 I was taken to the next room, which was empty, and all of us who

6 had come from the pista were put inside.

7 Q. Can I just ask you to pause there for one moment. You referred

8 to a room on the left in which you saw Sadeta and Becir. Was Sadeta

9 Mr. Medunjanin's wife?

10 A. Yes.

11 Q. And if you look at the diagram, was that room, the one on the

12 left, was that A3?

13 A. Yes, it is room A3.

14 Q. You said you were taken to the next room; was that A4?

15 A. Yes, A4 is next to A3. Yes.

16 Q. And doing your best, about how many people did you see in A3 and

17 then how many people were in A4 with you?

18 A. In -- I saw A3 only as I passed, and I saw prisoners either lying

19 or sitting against the wall. How many of them there were, I don't know

20 exactly. The room I went to, with me were about 40 prisoners in the

21 room.

22 Q. What happened after you were put into room A4 with the 40 other

23 prisoners?

24 A. Two persons in uniform arrived and entered room A3. One could

25 hear some movement in there, and after some time Medunjanin was thrown

Page 679

1 out into the corridor. I recognised one of the two as Zigic, whom I knew

2 from before the war as a taxi driver in Prijedor, but I didn't know the

3 other man. Other prisoners said that it was someone called Duca. They

4 beat Medunjanin with batons and a cable. They kicked him. At first

5 Medunjanin was lying and moving left and right, and later on he no longer

6 reacted to the blows. His head was covered in blood. This is what I

7 saw.

8 JUDGE SHAHABUDDEEN: Mr. Re, could you ask the witness to clarify

9 whom he meant by his reference to "they." Who beat Medunjanin? Who

10 kicked Medunjanin?

11 MR. RE: I most certainly will, Your Honour.

12 Q. Mr. KV4, you just described -- you just said, "They beat

13 Medunjanin with batons and a cable." Who were you referring to when you

14 said "they"?

15 A. I was referring to Zigic and Duca. Both of them beat him.

16 Q. You also said they were carrying batons and a cable. Can you

17 give a better description of the baton and the cable.

18 A. The baton was something like a police baton, whereas the cable, I

19 think it was a black cable -- it was a piece of cable. It was probably

20 plastified, electric cable.

21 Q. How long did this beating go on for approximately?

22 A. Well, it went on for about 20 minutes.

23 Q. Can you describe the severity or intensity of this beating that

24 you saw?

25 A. Well, the blows were very hard. And as I have already said,

Page 680

1 the -- his head was deformed in a certain sense. And as a result of the

2 blows, blood was gushing out of his neck, I couldn't see any particular

3 cut to the neck. In the end, Medunjanin no longer reacted to the blows,

4 so I assume that he had already lost consciousness.

5 Q. You said this was taking place -- have a look at -- outside the

6 room. Are you referring to the corridor area which is marked "A2" on

7 that diagram?

8 A. Yes. That was in the corridor where "A2" is marked on the

9 diagram. The door to the room A4 was open, so everything could be seen.

10 Q. What, if anything, did you hear Mr. Zigic and Duca say to

11 Mr. Medunjanin all during the beating?

12 A. I don't remember them saying anything to Medunjanin, or rather, I

13 didn't pay any attention. I can't remember right now.

14 Q. How long were you in the "white house" for on that day, and how

15 did you come to leave the "white house"?

16 A. We were in the "white house" for about two hours, I think. While

17 he was being beaten, Zigic said we would meet the same fate if we

18 didn't -- look -- or if we were looking. He said we had to face the

19 other side. At the end of that torture, a guard appeared, someone who

20 had been guarding us. He wanted to take us out. While we were passing

21 by - I don't know whether it was Zigic or Duca - but one of them entered

22 the A1 room, and since we were looking in front of us, we then went

23 outside, whereas Medunjanin remained immobile on the ground in the

24 corridor.

25 Q. You said earlier you saw blood on Mr. Medunjanin. Was there also

Page 681

1 blood on the floor or in that area?

2 A. Yes, there was blood in the corridor on the floor.

3 Q. Did you ever see Mr. Medunjanin again after that?

4 A. That was the last time I saw Medunjanin. I never saw him after

5 that event in the camp or anywhere else.

6 Q. Did you hear while you were in Omarska that he had died in

7 Omarska?

8 A. I only heard rumours according to which Medunjanin had

9 disappeared, that he had been taken away. But as to where he had been

10 taken away, I don't know.

11 Q. How long after you saw him being beaten did you hear that he'd

12 been taken away?

13 A. That's something I heard the following day. On that day, we knew

14 nothing, but usually news would be provided by the prisoners in the

15 morning, the news from the previous day and the previous night.

16 Q. I want you to describe Mr. Zigic as you saw him on that day, of

17 course bearing in mind it's been -- it's been 12 years since then. Can

18 you please tell us his approximate height, complexion, build, and age.

19 A. He's over 1 metre and 80 centimetres tall. I don't know his

20 exact height. He has black hair. He's dark-skinned. He had longish

21 hair at the time. He was in a camouflage uniform, not a civilian one but

22 a military uniform. At the time, he was about 35 or 36. That's a rough

23 estimate.

24 Q. What about Duca? Can you give us a description of this person

25 Duca -- or first of all, had you ever -- had you seen Duca before this

Page 682

1 day?

2 A. No. I'd never seen the person called Duca before. He wasn't as

3 tall as Zigic. He had fair hair. He was well built; he was a little

4 plump, that's what I mean. At the time, he was very red in the face. I

5 don't know whether this was because of the heat or because he was

6 excited. He was also wearing a camouflage uniform, and he was over 30

7 years old.

8 Q. Do you remember -- I withdraw that.

9 Have you seen Mr. Zigic or Duca since that day?

10 A. I can't remember whether I saw them after that day in the camp.

11 After I had left the camp, I didn't see them again.

12 Q. Do you remember an investigator from the Office of the Prosecutor

13 in The Hague showing you some photographs on the 14th of June,

14 1999 - that's almost seven years after this incident - showing you a

15 series of 12 photographs? Do you remember being shown those photographs?

16 A. Yes. I remember them showing me some photographs on one

17 occasion. I can't remember how many photographs they showed me. The two

18 or three sheets containing a number of photographs on them. We were

19 asked to say whether we could identify any of the individuals on those

20 photographs.

21 I had -- after I had had a look at the photographs -- after I had

22 had a look at the photographs, there were two that most resembled Zigic,

23 and I decided that it was in fact Zigic. Since quite a long period of

24 time had elapsed and appearances change, it can be difficult to identify

25 people.

Page 683

1 Q. And when you were looking at the photographs - and you said that

2 there were two that most resembled Zigic - what were you thinking about

3 whether or not you had to choose between one of them?

4 A. Well, I tried to recall the image I had retained from Omarska.

5 And on the basis of the image I had of Zigic from that time, I tried to

6 make a comparison.

7 Q. What about --

8 A. And that's why I made a choice.

9 Q. You said you made a choice. Did you think in the circumstances

10 you had to make a choice between the two?

11 JUDGE SHAHABUDDEEN: Yes, Mr. Stojanovic.

12 THE WITNESS: [Interpretation] Yes.

13 MR. STOJANOVIC: [Interpretation] Your Honour, the procedure of

14 identifying people should follow certain rules, and the Prosecution is

15 providing instructions to the person identifying individuals. The

16 witness has to follow these rules. I think we have to follow the same

17 procedure. We shouldn't try to avoid those very strict rules that have

18 been in force for a long time in the Tribunal's jurisprudence.

19 JUDGE SHAHABUDDEEN: Mr. Stojanovic, are you objecting to

20 anything in the way counsel has framed this question?

21 MR. STOJANOVIC: [Interpretation] Yes. Of course, Your Honour. I

22 think that such questions should not be allowed, since the witness has

23 been provided with information as to what he should do before he proceeds

24 to identify anyone, and I think that the procedure should be respected.

25 JUDGE SHAHABUDDEEN: The question is: "Did you think in the

Page 684












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Page 685

1 circumstances you had to make a choice between the two?" Is that the

2 question?

3 MR. RE: That's correct.

4 JUDGE SHAHABUDDEEN: Yes. I really don't see anything

5 objectionable in that question, so the objection stands overruled.

6 MR. RE:

7 Q. Mr. KV2, do you remember the question a moment ago? I'm sorry, I

8 called you "KV2". I meant "KV4". The question was: You said you made a

9 choice. Did you think in the circumstances that you had to make a choice

10 between the two photographs?

11 A. Well, to a certain extent, yes, since I'd been asked to identify

12 someone in the photograph.

13 MR. STOJANOVIC: [Interpretation] Your Honour, with your

14 permission, I would just like to read out one sentence from the warning

15 to the witness. It was read out.

16 MR. RE: I object.

17 JUDGE SHAHABUDDEEN: Mr. Stojanovic, I really cannot entertain

18 that intervention at this stage. Would you allow counsel to proceed. He

19 has to finish at 10.00.

20 MR. RE:

21 Q. Mr. KV4, did you know someone at the time called Dr. Sadikovic?

22 A. Yes, I did. I knew him. I knew him before the war, and I also

23 saw him in the camp.

24 Q. Was he in the "white house" or on the pista on the day you saw

25 Becir Medunjanin being beaten?

Page 686

1 A. On that day, I can't remember whether he was in the "white house"

2 but he wasn't on the pista.

3 Q. And a person called Dalija? D-a-l-i-j-a. And if so, did you see

4 that person in Omarska or in the "white house" on that day, or in the

5 vicinity on the "white house" on that day?

6 A. Dalija -- Mehmedalija or just Dalija?

7 Q. A person called Dalija.

8 A. I don't know anyone by that name.

9 MR. RE: That's my examination-in-chief.

10 JUDGE SHAHABUDDEEN: [Microphone not activated] Yes.

11 Mr. Stojanovic.

12 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour.

13 Examined by Mr. Stojanovic:

14 Q. [Interpretation] Mr. KV4, my name is Slobodan Stojanovic. I'm a

15 lawyer from Belgrade and I represent the accused Zigic.

16 You said that you knew him as a taxi driver from Prijedor. Can

17 you tell us how long you have known him as a taxi driver.

18 A. From before the war.

19 Q. Since when exactly?

20 A. Well, I can't say exactly.

21 Q. One year, eleven years? For how many years?

22 A. Two or three years, something like that.

23 Q. Was that just before the war?

24 A. Well, before the war, I'd known him for about three years.

25 Q. Were you aware of the fact that during that time Zigic lived or

Page 687

1 was living in Pula, in Croatia?

2 A. I don't know where Zigic was living, but Zigic was known to be --

3 was known as a taxi driver.

4 Q. But you said that you had known him for two or three years before

5 the war.

6 A. That doesn't mean that he never came to Prijedor.

7 Q. Could he have worked as a taxi driver if he was living in a place

8 that was over 500 kilometres from Prijedor, in another republic?

9 A. They called him a taxi driver, regardless of whether he worked as

10 a taxi driver or not.

11 Q. Did you ever see his taxi vehicle? Did you ever see him driving

12 a taxi?

13 A. I know him as Zigic, the taxi driver.

14 Q. You heard such things about him, but I want to know what direct

15 knowledge you have about him. Did you ever see him driving a taxi?

16 A. No, I never saw him working as a taxi driver, but I knew that

17 other people called him Zigic, the taxi driver, but I'd never been in a

18 taxi with him.

19 Q. Did you ever see him working as a taxi driver, driving a taxi?

20 A. I saw him at places where taxi drivers can usually be found,

21 where taxi drivers usually wait, but I never saw him in a vehicle.

22 Q. Since you heard that he was a taxi driver, did you hear what sort

23 of a taxi he had?

24 A. I don't know much about cars, so I couldn't tell you anything

25 about that.

Page 688

1 Q. My colleague from the Prosecution asked you about identifying

2 Zigic on the photo board from -- we will provide this Trial Chamber [sic]

3 with that document. Would it be correct to say that you pointed to

4 someone who least resembled Zigic?

5 A. Well, I can't remember now. I can't remember whom I chose,

6 because that was over five years ago, so I don't remember the person I

7 pointed to.

8 Q. We heard about the period of time you spent in Omarska. Did you

9 hear about someone called Milojica Kos, who was in Omarska? As a guard.

10 A. Yes. He was the head of a shift.

11 Q. Did you often see him in Omarska?

12 A. Yes.

13 Q. And you didn't recognise him on -- in the photograph either. You

14 pointed to someone else; is that correct?

15 A. Sir, I wasn't told whom I had identified and whom I hadn't --

16 whom I had identified correctly or not. I just had to point to certain

17 individuals. That was all. I don't know exactly whom I chose.

18 Q. When you went to the "white house" on that day, you saw the room

19 A3 and you saw some people lying on the ground or sitting down. Apart

20 from Becir and Sadeta, can you remember anyone else being there?

21 A. I only passed by the door, and I didn't have much time. I saw

22 Sadeta because she was sitting right by the door.

23 Q. Did you see her later on when you were leaving -- and this is

24 what it says in your statement that you gave to the Prosecution earlier

25 on.

Page 689

1 Perhaps you didn't hear the question. I'll repeat it. Did you

2 see Mrs. Sadeta --

3 A. You didn't finish your question. I was waiting for you to finish

4 the question.

5 Q. No, but that was the question. When you left the "white house" -

6 and I think that this is what you stated in the statement - did you see

7 her before?

8 A. Yes, she remained in the room. I didn't look, but I didn't see

9 them taking her out.

10 Q. Could you tell us what Sadeta looked like at the time, what sort

11 of clothes was she wearing? You said that you knew her better than Becir

12 himself. Was she in uniform, in civilian clothing? What was the colour

13 of her clothes? Is there anything you know about this?

14 A. She was thin. She had fair hair. She was wearing some sort of a

15 shirt. She didn't have a jacket. She wasn't in uniform. She was

16 extremely thin.

17 Q. Do you remember the clothes Becir Medunjanin was wearing?

18 A. He had a shirt on, a dark shirt. I don't remember the colour.

19 And he was wearing trousers.

20 Q. Was he wearing dark trousers too?

21 A. Yes.

22 Q. On that occasion, did you see Becir and Sadeta's son in the

23 "white house"?

24 A. Since I didn't know Medunjanin's children, even if I had seen

25 him, I wouldn't have known that it was his son.

Page 690

1 Q. Did anyone tell you anything about his son? They spoke to you

2 about Medunjanin himself. Did anyone tell you anything about his son?

3 A. I only heard that one of their sons was with him. That's all I

4 heard.

5 Q. And next to Medunjanin, did you notice a young man while

6 Medunjanin was being beaten?

7 A. He couldn't be, as Medunjanin was in the corridor and the other

8 prisoners remained in room A3.

9 Q. So Medunjanin was the only one of the prisoners in the corridor.

10 A. Yes.

11 Q. In connection with Zigic, you said that he was wearing a

12 camouflage military uniform. What colour was it? Do you remember?

13 A. When one says "camouflage," I can't really remember whether it

14 was olive-grey/green or was it multicoloured. I just know that it was a

15 military uniform and not civilian clothing.

16 Q. Does that apply to the trousers as well?

17 A. Yes.

18 Q. How was Zigic beating Medunjanin? We heard you mention a baton,

19 et cetera. Was he holding that baton in his hand?

20 A. Well, where else, if he was beating with it?

21 Q. And did you see both his hands?

22 A. I didn't really look carefully.

23 Q. But if you saw the baton, then I assume you must have been able

24 to see what he was holding the baton with.

25 A. Well, he was holding it in his hand.

Page 691












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Page 692

1 Q. Was Zigic wearing any kind of cap?

2 A. I think that he didn't have anything on his head. As I remember

3 well his thick black hair, so I don't think he was wearing a hat.

4 Q. Did he have any bandages on him?

5 A. I don't remember.

6 Q. Especially a bandage on his hand.

7 A. I don't remember, really I don't.

8 Q. There are two possible answers. One is "I don't remember." For

9 Zigic and Duca, you said that you don't remember that you saw them in

10 Omarska but you're quite sure that you didn't see them once you left

11 Omarska. So could you explain that a little. It seems rather vague.

12 First a vague answer and then a very explicit answer. So I would have

13 thought that they meant much more to you while you were in Omarska, in

14 the negative sense, than afterwards.

15 A. Sir, you must know that in Omarska there was a special kind of

16 psychosis that prevailed, and I couldn't look closely at the guards and

17 know who was present and who was not. But I was explicit in my second

18 part of the answer because when I left the camp, I was virtually under

19 house arrest, as I didn't go into town because I couldn't.

20 Q. I apologise. I just wanted the -- to clarify the first part of

21 your answer. Because when you say "I don't remember seeing them" could

22 mean that you may have seen them but you don't remember that. So did you

23 see them in Omarska or not?

24 A. If you want an explicit answer, I did not see them after that.

25 Q. Thank you. And before this incident, had you seen them in

Page 693

1 Omarska, any one of them?

2 A. No, I had not.

3 Q. How well were you able to see this event, as you were in a room

4 that is in a sense around the corner? So were you able to see this event

5 in each and every detail?

6 A. In view of the fact that I was close to the door, I could observe

7 well what was happening in the corridor.

8 Q. Was there anyone between you and the door?

9 A. No, there wasn't.

10 Q. So you were the first person, closest to the door.

11 A. Yes.

12 Q. Have you heard of a person called Fadil Avdagic?

13 A. No.

14 Q. Have you heard of a person called Mesinovic Sabahudin?

15 A. No.

16 Q. Have you heard of a person called Mesinovic Ibrahim?

17 A. Are you -- do you mean Mesinovic or Mesanovic?

18 Q. Mesinovic, the same surname of Sabahudin.

19 A. No.

20 Q. Have you heard of a person called Senad Ferhatovic?

21 A. No, I haven't.

22 Q. Have you heard of a person called Abdulah Brkic?

23 A. Yes.

24 Q. Was he with you on that occasion in the "white house"?

25 A. I can't remember now.

Page 694

1 Q. Have you heard of a person called Azedin Oklopcic, a young

2 teacher?

3 A. Yes.

4 Q. Was he in the "white house" on that occasion?

5 A. I don't know.

6 Q. Have you heard of a person called Faruk Hrncic?

7 A. Hrncic Faruk?

8 Q. Yes, Hrncic Faruk.

9 A. I did know a person called Hrncic. Now, whether his first name

10 was Faruk or not, I don't know.

11 Q. Have you heard of a person called Vahid Besic, known as Vajta?

12 A. Yes.

13 Q. Was he in the "white house" as well?

14 A. I don't know.

15 Q. Have you heard of a person called Uzeir Balic from Kozarac?

16 A. No.

17 Q. If I am not mistaken, you testified in the court in Sanski Most

18 in connection with the death of certain individuals in Omarska before

19 Judge Ridesic Emina; is that right?

20 A. Yes. But I don't know which case you're referring to.

21 Q. Well, that doesn't really matter. But, for example, Trta Emir

22 Mekinovic and so on.

23 A. Yes.

24 Q. Did you testify about their death on the basis of any firm

25 knowledge you may have had?

Page 695

1 A. I never said that -- anything but that they had disappeared from

2 the camp. That's all I said.

3 MR. STOJANOVIC: [Interpretation] I beg Your Honours for your

4 indulgence for a few more seconds.

5 Q. You witnessed the beating, as you said, but you didn't hear any

6 shouts or yelling by Zigic and Duca, what they said to Becir and what he

7 answered?

8 A. This was not happening in the corridor, so it was in the room.

9 If there was any shouting, it was inside. Yes.

10 Q. So while they were beating him in the corridor, they didn't say

11 anything nor did he say anything in reply.

12 A. I didn't hear it.

13 Q. Have you heard of a person called Ibrahim Osmancevic?

14 A. I don't remember. I don't know.

15 Q. I think that in your written statement to the OTP earlier on you

16 said that when Becir was brought to the corridor, his face only had

17 bruises and no blood, and then the beating continued, and later on you

18 said that blood was gushing from his neck. So my question is: Is it

19 true that when he was brought to the corridor, there was no blood on his

20 face?

21 A. I never said categorically that there was no blood on his face.

22 I said that there were bruises on the face. But now, whether there was

23 blood, that seems to be a fine point. I can't remember now whether there

24 was blood and bruises.

25 Q. Well, anyway, it is paragraph 6 of your statement given a few

Page 696

1 months ago, that is, the 25th of February, 2004. You say, "I was about

2 three metres away from Becir and I saw traces of the beating on his face

3 because it was covered in bruises, but it was not bloodied." Do you

4 remember saying that now?

5 A. I may have said that, if that is what it says, but I can't be

6 quite sure whether there was blood or not. I just remember the image of

7 his face covered with bruises.

8 Q. Did you notice anything in connection with his nose?

9 A. No, I didn't.

10 Q. A very specific question: Was his nose all cut up? Did you

11 notice that?

12 A. I did not, since I couldn't look for any length of time at his

13 head.

14 MR. STOJANOVIC: [Interpretation] I thank the witness. I thank

15 Your Honours. I have no further questions.

16 We should like to tender into evidence the witness's statement

17 dated the 25th of February, 2004 and a document on the identification

18 which we received as a courtesy from our learned friends from the

19 Prosecution on a document -- of a document on the identification of Zoran

20 Zigic by the investigator.

21 JUDGE SHAHABUDDEEN: [Previous translation continues] ... Well,

22 this second document to which you refer came to you from your colleague

23 on the opposite side. You're proposing to tender that document through

24 this witness. Have you laid the foundation for it? Have you asked this

25 witness whether he was given any guidelines at the time, and if so,

Page 697

1 whether these were the guidelines?

2 MR. STOJANOVIC: [Interpretation] Your Honour, this was already

3 referred to by questions from my learned friend from the Prosecution and

4 through my objections, but I think that yesterday we admitted into

5 evidence two identical documents -- or rather, documents of the same

6 kind, and I did ask a few questions, but without repeating anything that

7 has already been said. So maybe there's very little left for me to ask.

8 JUDGE SHAHABUDDEEN: Mr. Stojanovic, if I can help you.

9 Mr. Re, do you have any objections to that document being

10 tendered?

11 MR. RE: No, Your Honour.

12 JUDGE SHAHABUDDEEN: Oh, well, then you may.

13 Now, I will call upon Mr. Fila.

14 MR. FILA: [Interpretation] Thank you, Your Honour. No questions.


16 MR. J. SIMIC: [Interpretation] No questions from us either, Your

17 Honour.

18 JUDGE SHAHABUDDEEN: Is there any re-examination? By Mr. Re?

19 MR. RE: Yes, thank you, Your Honour. There are two specific

20 points.

21 Further examination by Mr. Re:

22 Q. Mr. KV4, in response to questions from Mr. Stojanovic, you

23 referred to a kind of psychosis that prevailed from Omarska and I

24 couldn't look closely at the guards." What did you mean by "a special

25 kind of psychosis"?

Page 698












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Page 699

1 A. What I meant was, with reference to the time we spent on the

2 pista, so as not to see who was passing by and who they were bringing in

3 for interrogation, in most cases we were lying face down without turning

4 our heads left or right, and we were not allowed to look around or even

5 at the guards. That is the psychosis of fear, fear of not being noticed

6 looking and seeing what you were not supposed to see, as you could suffer

7 consequences otherwise.

8 Q. What were those consequences?

9 A. There would be beating. The guard -- the guard would call out a

10 prisoner and beat him. That is what would happen.

11 Q. Mr. Stojanovic also asked you about your recognition of Mr. Zigic

12 when you saw him in the "white house" and questioned you about your

13 recognition of him -- or your knowledge of him before Omarska. Now --

14 again, we all appreciate it's been a very long time, 12 years, but can

15 you tell us approximately how many times you would have seen him around

16 Prijedor before Omarska.

17 A. It is very hard for me to give you an answer now, but I assume

18 three or four times at least.

19 Q. And how did you come to know that he was Zigic, the taxi driver?

20 Were there any other places you saw him, apart from in the taxi area?

21 A. I saw him once in a bar, and other people told me, "That is

22 Zigic," and it is from then on that I knew who Zigic, the taxi driver

23 was.

24 MR. RE: Nothing further.

25 [Appeal Chamber confers]

Page 700

1 Questioned by the Court:

2 JUDGE SHAHABUDDEEN: May I ask one little question: Witness,

3 you spoke of Mr. Zigic, the taxi driver. I take it you were familiar

4 with the town? You had lived in the town for some time? How long had

5 you lived in the town for?

6 A. Yes. I was born in Prijedor, and I spent my whole working

7 lifetime in Prijedor.

8 JUDGE SHAHABUDDEEN: Now, this taxi stand to which you referred

9 was in the central part of the town?

10 A. It was at the railway station.

11 JUDGE SHAHABUDDEEN: The railway station.

12 A. Yes. And there was one next to the hotel.

13 JUDGE SHAHABUDDEEN: If there was another taxi driver called

14 Zigic, would you know that? Could you tell from your knowledge of the

15 place whether there was another taxi driver by the name of Zigic?

16 A. If there had been another taxi driver with the same name, I

17 wouldn't know that.

18 JUDGE SHAHABUDDEEN: You wouldn't know that.

19 A. But I think that such a person did not exist.

20 JUDGE SHAHABUDDEEN: And such a person did not exist; I see.

21 Thank you. Thank you very much.

22 [Microphone not activated] I think we have come to the end of

23 this part -- oh, the microphone.

24 We can ask the witness now to stand down, and we will take a

25 break of 30 minutes and then we will come back to hear the conclusions of

Page 701

1 the parties on the evidence which has been led. Thank you.

2 [The witness's testimony via videolink concluded]

3 --- Recess taken at 10.26 a.m.

4 --- On resuming at 11.04 a.m.

5 JUDGE SHAHABUDDEEN: Thank you. The sitting is resumed.

6 Mr. Stojanovic or Mr. Zigic. Ready, Mr. Stojanovic?

7 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. Yes, I

8 am ready. But there is something I would like to say. I wouldn't want

9 to have this -- these proceedings prolonged, but rebuttal witnesses have

10 provided so many falsehoods, so many inconsistencies, and this was

11 especially the case in the case of witnesses who support the judgement.

12 I could in fact write about 200 pages about all the falsehoods they have

13 presented. I think a far better solution would be to give us a deadline

14 so that we could provide you with certain written submissions about all

15 these matters. I could state my position today and provide certain

16 explanations about certain key issues, certain matters that we have heard

17 about in the course of these three days, but I think that there are too

18 many issues to be addressed in 30 minutes, especially after just a half

19 an hour break.

20 With regard to the last witness, I think I could write about 50

21 pages on all the falsehoods presented. I think that these falsehoods

22 would be catastrophic, not only for the additional witnesses of the

23 Defence but also with regard to the witnesses on the basis of which the

24 judgement is based. This has to do with the Witness T and Fadil Avdagic.

25 What the rebuttal witnesses said is in contradiction with over 90 per

Page 702

1 cent of what was said by Witness T and Fadil Avdagic, and the judgement

2 is based on these witnesses. It's less in contradiction with the

3 witnesses who were favourable to the Defence.

4 But we would first of all like to remind the Trial Chamber that

5 in our response to the Prosecution, pursuant to Rule 115, we expressed

6 our position and stated that the reasons for the appeal are sufficient to

7 change many things contained in the judgement, especially with regard to

8 the murder of Drago Tokmadzic and Becir Medunjanin. The additional

9 evidence is in fact superfluous, in our opinion, but our opinion is

10 probably not going to be accepted by each individual Judge.

11 With regard to these two murders, the murder of Becir Medunjanin

12 and Drago Tokmadzic, we expressed our position in a grotesque -- with a

13 slightly grotesque example concerning the additional evidence. There is

14 nothing decisive about this evidence, in our opinion; although this is

15 something that is requested according to Rule 115.

16 Even before additional evidence was presented, as we have already

17 said, there was far more evidence that supported the idea that there was

18 nothing to prove these two murders. If we now add certain weight to

19 these matters, well, in fact there is really nothing decisive to prove

20 the case.

21 We must point out that over the last three days -- the Defence

22 hasn't forgotten about this matter -- but the additional evidence doesn't

23 only relate to the murder of Becir Medunjanin but also to the torture of

24 Witness T. According to the judgement, these two acts are inseparable,

25 are completely inseparable. Becir Medunjanin and Witness T were beaten

Page 703

1 at the same time. Those who beat them, allegedly Zigic and Duca, took

2 turns to do so, and they beat them one next to the other. So each

3 witness who claims that he only saw Medunjanin being beaten or claims

4 that he only saw Witness T being beaten is in fact stating something that

5 is contrary to the judgement, because this is inseparable according to

6 the judgement. The only difference is that Becir Medunjanin succumbed to

7 his wounds, whereas Witness T survived the beating. They were only half

8 a metre or a metre from each other when they were beaten, and people took

9 turns to beat them.

10 We've also heard from the rebuttal witness that no one touched

11 Witness T and that no one saw him, and Witness T was a key witness here,

12 and he spoke about the terrible experience that he and Becir Medunjanin

13 had been through. I just want to say that the Defence has been faced

14 with a very difficult test, given that through -- it had four witnesses

15 provided for additional evidence. They were Prosecution -- this was

16 Prosecution evidence, in fact, whereas the Defence witnesses that we

17 suggested - there were about 30 of them - and none of them were accepted.

18 We heard four witnesses which were in fact Prosecution witnesses. They

19 were witnesses for the other side. And the consequence of this conflict

20 that we are talking about can still be felt, and we can see this as a

21 result of the subpoena and protective measures. This is something that

22 also appears in their written statements.

23 In any event, we had four hostile witnesses. That's what the

24 Anglo-Saxon term would be. Two of them were allegedly for our benefit.

25 But we didn't object to that, because we wanted to show the Chamber that

Page 704

1 we weren't afraid of the truth, not in the least, and we wanted to add

2 additional weight to our appeal. And we do request that the Trial

3 Chamber bear this fact in mind.

4 With regard to the evidence that we obtained through KV1 in

5 March, we stated at the time what our position was, and I don't think

6 that this is an issue that needs to be addressed today.

7 We heard Witness KV2. The witness was obviously under the

8 influence of the Prosecution. It's not a matter of pressure exerted by

9 the Prosecution, but circumstances were such. Australia is Mr. Blewitt's

10 country, Staker's country, Mr. Re's country, and I assume that the

11 Prosecution either directly or through the Victims and Witnesses Unit

12 helped most of them to find a home in Australia. I was personally able

13 to become persuaded of this fact, to see this fact. With regard to

14 victims of Serbian nationality --

15 JUDGE SHAHABUDDEEN: Just a minute. Mr. Stojanovic, I'm not sure

16 how I should understand your references to Australia. Are you making a

17 proposition you would like to present to us for consideration?

18 MR. STOJANOVIC: [Interpretation] Yes, Your Honour. I didn't

19 want to accuse anyone, and I didn't have anything negative in mind. In

20 the following few sentences, you will hear what the point I want to make

21 is.

22 I've personally been able to see that in the case of Serbian

23 witnesses, in the case of the Celebici camp, when I cooperated or worked

24 with the Prosecution, many victims of Serbian nationality were taken

25 there. They are grateful to the Prosecution, and they wouldn't want to

Page 705












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Page 706

1 be a party that is opposed to them. This is just a humane gesture. I'd

2 like the Chamber to bear this in mind. They wouldn't want to support the

3 opposing side and they wouldn't want to disappoint the Prosecution.

4 KV2 had more contact with the Prosecution, as a future witness

5 for the Prosecution. This witness gave a number of statements, but they

6 never heard -- they never had any contact with the Defence. So the fact

7 that he could be influenced is quite understandable, and the Prosecution

8 did put very leading questions to this witness.

9 But what is really obvious in the case of this witness, in the

10 first and in the second written statement as well as in this witness's

11 oral testimony, is that Zigic did not participate in the beating and

12 murder of Becir Medunjanin, not in any way. Zigic was a person who was

13 excluded from this event. On the other hand, the other side tried to

14 minimise the importance of certain issues by asking whether it was

15 possible for someone to enter the "white house" without being noticed and

16 join those who were committing crimes there.

17 It's quite possible. I could also ask whether it's possible for

18 an earthquake to occur now, and everyone will say, "Yes, it's possible."

19 But that is not the point. We're not talking about secondary individuals

20 who may have entered the facility after they had started committing the

21 act. We're talking about the person who was the initiator. Someone

22 might enter the courtroom now, but I'm sure that it won't be the

23 President of the Chamber or one of the Judges. It wouldn't be possible

24 not to notice this. So we're talking about the key individuals after the

25 act had already been initiated. If someone subsequently entered the

Page 707

1 premises, this could only be someone who joined them. But it could not

2 be Zigic. And this is what results from the statements of witnesses that

3 we received in the course of the trial.

4 As far as the rebuttal witnesses are concerned, I could state a

5 few things for the benefit of the Trial Chamber, but I would like to ask

6 the Trial Chamber to give me the possibility of doing this in writing. I

7 think that the testimony is catastrophic in relation to the judgement and

8 the sentence handed down to Zigic by the Trial Chamber, naturally, if the

9 alleged facts are taken to be true. This testimony is in contradiction

10 to the statements of Witness T and of witness Fadil Avdagic.

11 In addition to other shortcomings, naturally the main shortcoming

12 is the fact that it is impossible to identify the individual. In our

13 appeal, we complained about the standards applied by this Trial Chamber

14 in the Kupreskic case. We think that far less was required there than is

15 required in this case. In that case, it had to do with the

16 identification of one witness, but here we have the identification

17 provided by one witness but we mustn't forget that we have eight

18 witnesses who claim the contrary.

19 KV3 more or less admitted yesterday that he mixed Zigic up with

20 someone else. He recognised Zigic on the photo board as someone who sold

21 beer, and as he himself said, as someone who had nothing to do with the

22 murder of Medunjanin.

23 We would even say that there are two alternatives with respect to

24 this witness: Either the witness saw nothing in the "white house," or we

25 need to trust everything he says. Both options are favourable for Zigic.

Page 708

1 Even the latter could be said to be more favourable, in which he says

2 that the person selling beer was Zigic, and he actually confused the two

3 and he said that he was not involved in the killing of Medunjanin.

4 However, we have expressed serious doubts that he was present there at

5 all. He said with respect to Witness T that he wasn't beaten up there.

6 Let us read through once again what Witness T says. He's

7 mentioned at least 10 to 15 times in the judgement, and the guilty

8 sentence is based on his statement. He says that he was wearing a blue

9 uniform, and we have heard from at least 30 witnesses that he was wearing

10 a green uniform. Fadil Avdagic tells us that he had black trousers.

11 Today's witness told us that he had camouflage trousers. The description

12 of Duca, we hear for the first time that Duca was fair, blond. I think

13 that the Court has had occasion to see what he looks like. He's small,

14 quite plump. He's here in the Detention Unit and his hair is not fair,

15 so this is a notorious fact for the Court, notoria non probatur, one

16 might say. One person says that he was fair with short hair; the other

17 that he was fair with long hair. But Witness T said that he was dark.

18 Both witnesses mention Sadeta Medunjanin. They describe her with

19 confidence. She was present there, they say. What does Witness T tell

20 us? The next day - I won't now indicate the relationship - Sadeta

21 Medunjanin was taken from the "white house" and put up with the other

22 women; transcript 2567. On that same page of the transcript, the same is

23 repeated. For instance, 2658 gives a detailed description of her leaving

24 the building two days prior to the murder of Becir. We are told how

25 Zeljko Meakic took her out to the administrative building to join the

Page 709

1 other witnesses. And then there are details about Witness T meeting

2 Sadeta and informing her of the death of Becir Medunjanin. So both

3 witnesses clearly made up this fact, but they did it well, this

4 fabrication. How can we explain their continued statements with respect

5 to the description of that woman? Unfortunately -- I'm always trying to

6 act in good faith, but in this case I cannot be positive. Some say she

7 had a shirt, a long skirt, light hair. We have heard a detailed

8 description of that woman by the rebuttal witness, and the Judges are

9 aware of the relationships between Witness T and that woman and how much

10 he might have known about that lady, and I think that we have to believe

11 him because otherwise the judgement does not stand.

12 So with respect to Sadeta, the rebuttal witnesses are

13 intentionally not telling the truth.

14 It is not a question of a mistake. One of them said that there

15 were no other women in the "white house." Not a single of these

16 witnesses noticed bandages on Zigic's hands. We insisted on this point.

17 I don't know to what extent Your Honours are aware of that. The Trial

18 Chamber was. About two weeks prior to this event the forefinger of

19 Zigic's left hand was cut off. He can show you that now. A shell cut

20 off this finger, and his whole left hand had a very large bandage around

21 it. Therefore, the statement of one of the witnesses that he wore

22 fingerless gloves is quite impossible without -- and it is also

23 impossible that no one noticed those bandages. And with respect to those

24 bandages at the time, we have innumerable pieces of evidence to support

25 it.

Page 710

1 We have the testimony of the expert witness, Mirko Barudzija,

2 Exhibit KVD/24, I think. Many witnesses, all the Defence witnesses, and

3 at least 10 to 15 Prosecution witnesses mentioned as an important

4 identification factor the large bandages round his left hand. Several

5 days after this incident, he was again subjected to surgery. He spent

6 seven days in hospital because the wound became infected, so obviously

7 they didn't recognise Zigic.

8 Today's witness -- Your Honours, you will have occasion to see

9 that photograph because instead of Zigic he pointed to someone else, a

10 person who doesn't at all resemble Zigic, a completely different face.

11 And he also said that the person next to this one was Kos, which was

12 again wrong. So he was wrong twice. Trying to tell us that he knew

13 Zigic as a taxi driver is hearsay evidence, because we hear that he never

14 met him. He heard that about him from others. A taxi driver before the

15 war, he says; and when I told him that Zigic was not living there before

16 the war, then he said he might have travelled from Pula to act as a taxi

17 driver. This is not an error; it is an ill-intentioned statement, for

18 someone to come from another state to act as a taxi driver along rather

19 bad roads is hardly credible.

20 Today's witness also never heard of a long list of names that I

21 mentioned to him and of whom we know that were present in the "white

22 house." He never heard of any one of them, except Abdulah Brkic, but

23 that's fine. Abdulah Brkic is a taxi driver who knows Zigic very well;

24 however, he testified against him and said that he had testified in

25 certain incidents. But with respect to Becir Medunjanin he was explicit.

Page 711

1 He said, "Zigic has nothing to do with this murder. He did not

2 participate in the killing nor in the beating up of Witness T."

3 This witness, as opposed to maybe up to 20 others, is the only

4 one who never heard of Dalija, Dalija Hrnic, as opposed to all the other

5 witnesses. Both rebuttal witnesses said, if I'm not mistaken, that they

6 never saw Zigic and Duca before or after the incident in Omarska, and the

7 judgement says that Zigic regularly entered the camp.

8 One of the characteristics noted by all the witnesses of this

9 incident and confirmed by Witness T is that Duca had previously cut a

10 nostril of Becir Medunjanin's even before coming to the "white house" and

11 that that is why the nostril was bleeding profusely. This witness didn't

12 see that.

13 My client told me -- in connection with this last statement that

14 there was no other Zigic in Prijedor, my client tells me that there was.

15 This is something I hear for the first time. But I don't wish to prolong

16 this endlessly because I have a deadline for any new submissions under

17 Rule 115. Anyway, this witness did not provide evidence of death but of

18 Becir Medunjanin's unconsciousness.

19 I do believe that I have left out at least half of the omissions

20 made by these two rebuttal witnesses. You may not be surprised if I make

21 up for it in writing, regardless of whether that will be admitted or not

22 for formal reasons, but I am always a supporter of the view that the

23 Appeals Chamber has great discretionary powers with respect to the

24 procedure and determination as to whether they will admit anything or

25 not. So this is exclusively in your hands, Your Honours.

Page 712












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Page 713

1 That is as much as I'm able to say at this point. Thank you.

2 JUDGE SHAHABUDDEEN: Mr. Stojanovic, the Bench has considered

3 your proposal to submit written arguments, and the Bench is of the view

4 that the application should be refused. The reasons are: If you do

5 submit written arguments, the Prosecution will be entitled to respond;

6 your colleagues would be entitled to respond; and time would go. This is

7 an additional-evidence hearing, and that is a special procedure. We have

8 heard three witnesses over the last three days. And summing up now was

9 expected to be confined to that evidence. So we don't think we should

10 grant you leave for the presentation of written submissions.

11 Accordingly, the request is declined.

12 Now, we would hear the Prosecutor in response. Yes.

13 MR. RE: The test is very, very clearly set out in Rule 115 and

14 Rule 117(A) as to what the Appeals Chamber has to do. The test is: Has

15 the appellant established that no reasonable tribunal of fact could have

16 reached a conclusion of guilt based upon the evidence before the Trial

17 Chamber together with additional evidence admitted during the appellant

18 proceedings? And this, of course, includes the rebuttal evidence which

19 the Prosecution has led. And considering the evidence, the Appeals

20 Chamber is, of course, guided by Rule 117, which provides the

21 appellant -- sorry. "The Appeals Chamber shall pronounce judgement on

22 the basis of the record on appeal together with such additional evidence

23 as has been presented to it." And of course, I refer Your Honours, as

24 you of course well know, to the Kupreskic appeals judgement at pages

25 75 -- sorry, paragraphs 75 and 76.

Page 714

1 So what is the state of the case now, having heard the additional

2 evidence brought on behalf, or at the request of the appellant Mr. Zigic

3 and the rebuttal evidence brought by the Prosecution?

4 The Prosecution's -- the Respondent's submission in one line is

5 that it has strengthened the case which was -- which could have been

6 before the Trial Chamber, and had the Trial Chamber had the benefit of

7 both the rebuttal and the additional evidence, it could have made

8 findings -- it could have -- it could have added to its findings. It

9 could have strengthened its findings in relation to the finding against

10 the appellant Mr. Zigic.

11 Of course in these sorts of circumstances one will never get an

12 entirely consistent account. You bear in mind the circumstances. You

13 have what is basically a concentration camp, people confined in the most

14 horrific conditions, not knowing whether they will live from one day to

15 another, not knowing whether they are the next person whose name is going

16 to be put on a list and called out never to be seen again. You've got

17 people who see some things and people who see other things. You get

18 people in a situation where there are many people coming and going, and

19 in circumstances of extreme fear one can never expect the same version

20 from the various people who witnessed either the whole incidents or

21 various parts of the events. And were you to do so, you would be

22 entitled to be suspicious of it, because in these circumstances people

23 never remember things in the same manner.

24 And this is particularly acute when you're considering that the

25 witnesses at trial were giving evidence eight years after the event and

Page 715

1 the additional witness, KV2 and KV3 and KV4 on the last two days, the

2 rebuttal witnesses, are doing so 12 years after the event. The normal

3 psychological processes which play in a person's mind are people try to

4 forget these sorts of things. People forget the little details. People

5 forget who was there and the order of things. But - and this is the

6 important part, when you bear in mind the Trial Chamber -- the evidence

7 before the Trial Chamber, its findings, the additional evidence and the

8 rebuttal evidence - is the common thread running through the evidence at

9 trial, the additional evidence, and the rebuttal evidence. And these, in

10 the Prosecution's submissions, are the things that witnesses remember.

11 Witnesses remember the most important things.

12 The threads which are running through here, in what the -- in

13 this case -- and Your Honours, this case is not an identification case;

14 it's a recognition case. The additional evidence -- had it been before

15 the Trial Chamber, the Trial Chamber would have had a better view of the

16 recognition of Mr. Zigic at the time as a person the two additional

17 witnesses KV3 and KV4 recognised as Zigic, the taxi driver from Prijedor,

18 rather than identified either in court or from photo boards or many, many

19 years later.

20 These are the threads running through the case: People

21 recognised Mr. Zigic as a taxi driver from Prijedor, although Witness T

22 didn't; Witness T was told at the time by someone who did know Mr. Zigic

23 as a taxi driver from Prijedor. That's one thread.

24 Another thread is that there was a beating of Becir Medunjanin,

25 and the witnesses all knew who Becir Medunjanin, who was a reasonably

Page 716

1 prominent person in the community in the area, they knew who he was.

2 The next thread is that this beating -- particular beating

3 occurred in the "white house" in Omarska.

4 The next one is that it was in approximately mid-June 1992, when

5 all of the witnesses were there.

6 Another thread is that there were a lot of people in the "white

7 house" at the time, a lot of different people.

8 Another thread is that Mr. Medunjanin was beaten severely and

9 suffered severe injuries.

10 And the final thread which runs through the additional evidence

11 of each of the witnesses heard at trial, the additional evidence and the

12 rebuttal evidence is that Mr. Medunjanin died, was never seen again

13 afterwards. And the only inference available from that, when combined

14 with T's evidence, is that he died as a result of these particularly

15 severe beatings.

16 The two additional witnesses, KV3 and KV4, have also described a

17 baton which Mr. Zigic and Duca had with them. This is, of course,

18 referred to in the judgement, the evidence of Witness T, as Mr. Zigic

19 having a special kind of baton. And you heard KV3 yesterday describe a

20 spring-type of baton. This is one of the things, you would expect,

21 witnesses may recall. It's one of the smaller details, something that

22 may stand out.

23 The Defence has -- Mr. Stojanovic, in cross-examination of the

24 additional -- two additional witnesses, cross-examined them as to their

25 "identification" or lack of, or failure to identify Mr. Zigic, if you

Page 717

1 could put it that way, from a photo board many years later. Now, I think

2 one of the witnesses, Mr. Avdagic, summed this up very well when he was

3 asked at trial if he could recognise or identify Mr. Zigic in court, and

4 of course there are many problems, as the Appeals Chamber is aware, of

5 courtroom identification, and especially so long after the event.

6 This appears at page 3.444 of the transcript, in which the

7 Prosecutor asked Mr. Avdagic: "Mr. Avdagic, I know that eight years have

8 passed since that time, but do you think that you could recognise Zoran

9 Zigic today?" To which Mr. Avdagic gave the most honest and sensible

10 reply that anyone in his position could: "I cannot claim that with

11 certainty. We have all changed a lot." And that was on the 4th of July,

12 2000. Yet he was able to recognise Mr. Zigic from the four -- the four

13 people -- the people in court at the time -- the five in court at the

14 time.

15 But what we have here is two witnesses, KV3 and KV4, being shown

16 photographs, firstly in 1999 and then in 2000, respectively eight and

17 nine years -- I'm sorry, seven and eight years after the events -- after

18 they witnessed this most horrific beating, during which time they hadn't

19 seen Mr. Zigic or Duca. The description they both gave matches the

20 general description of the person they recognised contemporaneously as

21 Zigic and, of course, recognised what the Appeals Chamber -- recognised

22 what the Appeals Chamber can see is a reasonably good description of

23 Mr. Zigic.

24 If I could specifically turn to Exhibit DA2 on appeal, that is,

25 the photo board which was shown to Witness KV3 and which was tendered

Page 718

1 yesterday. The exhibit -- and this was something Mr. Stojanovic made

2 something of in his submissions. When shown photographs, the witness

3 said, "I recognise this person from the camp. He came in a pick-up

4 truck." The photograph, of course, which he was talking of was in fact

5 Mr. Zigic. Now, in those circumstances, some eight years later, it is

6 not a reliable form of identification. But you have to bear in mind that

7 he has recognised a person on that page who is indeed Mr. Zigic, and in

8 that respect, when you put that together with the circumstances of

9 identification, he is clearly recognising someone who was there at the

10 time.

11 The second one is DA5, which was the photo board shown to today's

12 witness, Mr -- Witness KV4.

13 [Appeal Chamber confers]

14 JUDGE SHAHABUDDEEN: Mr. Re, would you have any difficulty

15 putting the photo board on the ELMO so that the Judges can see?

16 Yes, Mr. Stojanovic.

17 MR. STOJANOVIC: -- some technical matter.

18 [Interpretation] I think that the Prosecution does have in their

19 possession, maybe not now, but a better-quality photo board that was

20 shown to Witness KV4. So what we're looking at now is not as clear as

21 the witness saw.

22 JUDGE SHAHABUDDEEN: The Judges want to see the photo board that

23 was being referred to in the evidence, and I have the impression that

24 this is the photo board.

25 MR. STOJANOVIC: [Interpretation] Yes, but that is not the photo

Page 719












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13 French transcripts correspond













Page 720

1 board that was shown to the witness; it was in colour. I just wanted you

2 to be aware of that. That's all.

3 [Appeal Chamber confers]

4 JUDGE SHAHABUDDEEN: Do you -- Mr. Re, do you have the colour

5 photo board to which Mr. Stojanovic was adverting?

6 MR. RE: No. If it is in colour, it will be in the evidence

7 vault. We could probably get it out. It may take -- it may take -- I

8 don't know how long it would take to get it from the evidence vault.

9 JUDGE SHAHABUDDEEN: I think we better proceed with the one.

10 Well, we'd better proceed with the one which you have.

11 MR. RE: What I want to take Your Honours to is what the witness

12 KV2 -- sorry, KV4 is recorded as having said and what he said when he was

13 shown the photo board and what he actually said in evidence this morning.

14 At paragraph 8 of the exhibit, the witness said the following:

15 "I believe number 10 is Zigic and number 11 is Kos." I mean, if Your

16 Honours look at the photo board as it is on the ELMO, you can quite

17 clearly see that number 2 is Mr. Zigic and number 10 is someone who, in

18 my respectful submission at least, could be mistaken for Mr. Zigic,

19 especially when a witness is looking at a photo board some seven years

20 after having witnessed these particularly traumatic events. And when you

21 combine that with what the witness said this morning, which was there

22 were two people who looked like Zigic and he felt like he had to choose

23 between one of them he made his selection.

24 In submission, if you look at these two photograph, there are two

25 people who look like Mr. Zigic; that's number 2 and number 10. That was

Page 721

1 something I clearly could not have asked him this morning because so long

2 had passed since he had looked at the boards, so all I can say is if you

3 look at them, it's a mistake a witness -- or a person looking at a board

4 many years later could easily make.

5 JUDGE SHAHABUDDEEN: Mr. Re, this colour photo board is in

6 evidence, is it?

7 MR. RE: No, no, no. No.

8 JUDGE SHAHABUDDEEN: It's not in evidence?

9 MR. RE: No, it's not in evidence. We provided black-and-white

10 copies, I think, to the Defence in March this year.

11 JUDGE SHAHABUDDEEN: So the colour photo board is not part of the

12 record.

13 MR. RE: Not the trial and not the appeal.

14 I've finished with that particular exhibit, unless Your Honours

15 have questions about it.

16 JUDGE SHAHABUDDEEN: Please proceed.

17 MR. RE: Now, this is also something the Trial Chamber -- the

18 Appeals Chamber must bear in mind when considering or assessing

19 Mr. Stojanovic's submission about KV2 not knowing or not remembering the

20 names of a list of people who Mr. Stojanovic read to him earlier this

21 morning. The evidence is on the trial record and before the Appeals

22 Chamber of there being hundreds of people detained at Omarska over that

23 period, and in my submission, the fact that Mr. KV4 today, 12 years

24 later, could not remember or did not know the names of some people who

25 may have been there or who were there at the time is of absolutely no

Page 722

1 evidentiary weight, because so much time has passed, and especially in

2 circumstances where the evidence is that there were hundreds on the pista

3 and probably dozens crammed into the "white house" at the time of the

4 incident. One would not expect someone in those circumstances to

5 remember exactly or precisely who was there at the time this occurred,

6 especially in the circumstances described by the Witnesses KV3 yesterday,

7 in that he was told to put his face to the wall, and KV4, when he

8 described the "special kind of psychosis," that is, the -- what he called

9 "the psychosis of fear" in not wanting to be recognised, not wanting

10 anyone to see whether he was the person who was there.

11 Mr. Stojanovic also made a submission in relation to the issue of

12 gloves, and I think he was in error, inadvertently in error, when he said

13 that KV3 said it was Duca -- said it was Mr. Zigic wearing the gloves.

14 The evidence was that it was in fact Duca who was wearing the fingerless

15 gloves, not Mr. Zigic.

16 In relation to Mr. Stojanovic's submission about the beating of

17 T, Witness T, and the fact that the two witnesses today did not see it,

18 therefore they must be making the whole thing up. The Prosecution's

19 submission is that they have described something they could not have

20 seen. KV3 said Mr. Medunjanin was out and he did not -- was in the

21 corridor and he was in a different room, room A4. He did not see what

22 was happening; he only heard what was happening outside and did not see

23 what was happening in room A3. Similarly, Witness KV4 was not looking at

24 what was happening in KV -- in room A3. So the two do not -- are not

25 inconsistent in any way. It's a matter of what one person saw on that

Page 723

1 particular day. And in any event, the beating of Witness T occurred on

2 several different days, and the Trial Chamber was entitled to find, and

3 did find, that Mr. Zigic participated in the beating over several

4 different days.

5 In assessing the evidence, the additional evidence which was

6 called, my learned -- of Witness KV2, my learned friend Mr. Stojanovic

7 made a connection to what, I suppose, we could refer to as the

8 "Australian connection." The Prosecution quite frankly has no idea what

9 he is talking about in that submission. I myself have never set eyes

10 upon Mr. KV2 until Monday morning on the video. I have never spoken to

11 him before, and I very much doubt whether Mr. Blewitt has, although

12 Mr. Niemann interviewed him in 1995. We frankly have no idea about his

13 personal circumstances and how he came to be in Australia, and it is

14 basically of no interest to us and irrelevant, completely irrelevant to

15 the case.

16 But the important thing to bear in mind in assessing the

17 additional evidence of Mr. KV2, who Mr. Stojanovic appeared to suggest

18 was in some way leaned upon by the Prosecution or providing favours for

19 the Prosecution, was that the Prosecution elected not to call this

20 particular witness at trial. And when you look at his statement, which

21 the Defence tendered yesterday, which is Exhibit, I think, DA1 or 2, it

22 is quite --

23 [Appeal Chamber confers]

24 JUDGE SHAHABUDDEEN: [Microphone not activated] Mr. Re, my

25 attention has been drawn to a certain reference -- my attention has been

Page 724

1 drawn to a certain reference you made which would necessitate a slight

2 redaction.

3 MR. RE: Could Your Honour tell me at what page reference it is,

4 the page number and line?

5 JUDGE SHAHABUDDEEN: You disclosed the country in which a certain

6 witness lives.

7 [Appeal Chamber confers]

8 JUDGE SHAHABUDDEEN: Has that been done, Registrar?

9 THE REGISTRAR: It will be redacted, Your Honour.


11 MR. RE: Your Honour, that was in open session. It was entirely

12 in open session, in open session when Your Honour greeted the presiding

13 officer in Australia and -- and introduced himself as the Chief

14 Magistrate from Canberra, greeted you from Australia and you greeted him

15 back from Australia and from The Hague and there was no secret about

16 that. There were about 20 references to Australia.

17 JUDGE SHAHABUDDEEN: I didn't think so either. But the point has

18 been made. Perhaps we could redact it at this stage.

19 MR. RE: My submission is that on the point of KV2's evidence,

20 having -- Your Honours having looked at the statement, his statement

21 which the Defence tendered, it is apparent why the Prosecution elected

22 not to call him, and that is because the Prosecution clearly considered

23 his account to be so at variance with that of the others and so different

24 in such a fundamental way - that is, the decapitation of Mr. Medunjanin,

25 followed by the kicking of his head around the corridor by the

Page 725

1 guards - that the Prosecution was not going to call someone who gave a

2 version that no one else out of all the other people there saw. Now,

3 that is now in evidence through the Defence having tendered it, and in my

4 submission, had the Trial Chamber had that particular piece of evidence

5 before it, it would have disregarded it as unreliable.

6 Which brings us to the additional evidence and my final point:

7 When you take -- when the Appeals Chamber takes the additional

8 evidence -- I withdraw that, I meant the rebuttal evidence. When the

9 Appeals Chamber takes the additional evidence, which is clearly so

10 unreliable as to have the Trial Chamber reject it and put it together

11 with the additional evidence, which we say is reliable, consistent, and

12 corroborative of the evidence called at trial, the Appeals Chamber should

13 have no doubt that the Trial Chamber came to the correct conclusion and

14 the additional evidence and the rebuttal evidence would have had no

15 impact on the ultimate result.

16 Those are my submissions.

17 JUDGE SHAHABUDDEEN: Well, Mr. Re, there is interest here in

18 having this colour photo board. You say it is not part of the record.

19 MR. RE: No, it wouldn't have been, because those witnesses

20 weren't called at trial.

21 JUDGE SHAHABUDDEEN: I see. I see. They were not called.

22 [Appeal Chamber confers]

23 JUDGE WEINBERG DE ROCA: Thank you. Yesterday when we accepted

24 the written evidence tendered by the Defence, we were of the

25 understanding that that was -- this photograph board disclosed by the

Page 726












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Page 727

1 Prosecution to the Defence, that -- this piece of evidence you are now --

2 we were now using, these photos.

3 MR. RE: We disclosed photocopies -- or we disclosed those copies

4 to the Defence in March. It may be -- I've just been --

5 JUDGE WEINBERG DE ROCA: We would prefer to have the originals as

6 exhibits, so perhaps you could provide us with them, because photocopies

7 are not -- no good to see, for example, the hair colour, et cetera.

8 MR. RE: I'm -- I think there's some good news, and I'm told it's

9 on the way, although I suspect it might be Exhibit 3129 A to D at trial.

10 JUDGE SHAHABUDDEEN: What did you say, Mr. Re? Was it an exhibit

11 or not?

12 MR. RE: We suspect it -- the same photographs may have been

13 3129A to D. There were four photographs.

14 JUDGE SHAHABUDDEEN: Because if it was an exhibit, the Judges

15 would be able to reach for it anyhow; it's part of the record.

16 MR. RE: There were a number of photo boards shown to the

17 witness, so we'd have to compare which one was which.


19 MR. RE: I just can't tell you on the spot.

20 [Appeal Chamber confers]

21 JUDGE SHAHABUDDEEN: Judge Mumba will speak.

22 JUDGE MUMBA: I just wanted to find out from the registry

23 assistant, because if they were exhibited and accepted, then they must be

24 in the records of the Registrar's Office.

25 THE REGISTRAR: Your Honour, I have received the exhibits

Page 728

1 tendered by the Defence this morning. I have assigned numbers to them,

2 which I intended to distribute on an exhibit list together with the

3 attached exhibits. I did not receive the colour photographs, but I

4 received a copy of the photo boards from Mr. Stojanovic.

5 JUDGE MUMBA: No, what we want to clear is whether you would

6 know -- maybe you were not the registry assistant at the trial. Because

7 the Prosecution have just said that they were -- they might have been

8 exhibited, the coloured ones, the ones that the witness was shown by the

9 investigator at the time the identification or recognition was being

10 done.

11 THE REGISTRAR: I can check -- sorry. I can check that for you

12 in the trial exhibit list, if you would grant me some time to do that.

13 JUDGE MUMBA: Maybe the Defence counsel knows better, because he

14 was there at the trial.

15 MR. STOJANOVIC: [Interpretation] If I could be of assistance. I

16 think that some of these photographs were really provided, but in the

17 case of another witness. We have the same photograph tendered through

18 another witness, but -- so perhaps it would be best to obtain it under

19 this number. We probably have the photograph of the same individuals,

20 but it wasn't presented via these witnesses. That's for certain. That's

21 for sure.

22 JUDGE MUMBA: The Prosecution this time. Because according to

23 Rule 117, what is the record we're dealing with? So if the exhibits of

24 the photo boards in colour were produced at trial, they are supposed to

25 be in the custody of the registrar. If they are not, then can the

Page 729

1 Prosecutor please provide the same to the Appeals Chamber.

2 MR. RE: I'm told they're on their way now. I just can't give

3 you an exact time. They should be here fairly soon.

4 JUDGE MUMBA: Thank you.

5 JUDGE SHAHABUDDEEN: It is agreed, then, that we shall proceed on

6 that basis?

7 MR. RE: Yes, Your Honour.

8 JUDGE SHAHABUDDEEN: Right. Thank you.

9 Then we will now ask counsel for Mr. Zigic if he wishes to reply.

10 MR. STOJANOVIC: [Interpretation] Yes, Your Honours.

11 First of all, I would like to thank you for your suggestion that

12 the colour version of the photographs should be obtained. That was our

13 suggestion, and you have been of great assistance.

14 I just want to address certain key issues raised by my learned

15 colleague Mr. Re. He mentioned the issue of the witnesses and the

16 shortcomings in their testimony. I dealt with this issue at the very

17 beginning of this case. I said that from a criminal point of view, the

18 witness is the least adequate form of evidence. I provided an example

19 from the Middle Ages. Thousand or even a million people were sentenced

20 to death by burning on the basis of testimony from witnesses, and their

21 evidence was very consistent. We can say that we're not in the Middle

22 Ages, but what happened in Bosnia, unfortunately it didn't even happen in

23 the Middle Ages, especially with regard to portraying the truth and

24 portraying various inhumane acts. So we would like to request that the

25 Trial Chamber bear this in mind, and especially to bear in mind the

Page 730

1 conclusions in the Celebici case with regard to certain imperfections,

2 and if I'm not wrong, with regard to the verbal ambiguity. I think

3 that's the correct term. In such cases a judgement cannot be delivered

4 against the accused. If there are any doubts about a witness, this

5 shouldn't be prejudicial to the accused; quite the contrary.

6 The baton was mentioned with a spring, and in our appeal we said

7 that Mrkalj Edin, the witness Mrkalj Edin said that on the 16th of June

8 1992 - and that is the day that Fadil Avdagic mentioned as being the date

9 on which Becir Medunjanin died, because he was a witness - on that date

10 he was released home and he remembers that date with great precision.

11 Other witnesses have no doubt as to whether it was the 15th or the 16th.

12 Mrkalj Edin says the 16th of June.

13 In Omarska, In the hangar in Omarska, Zoran Vokic -- another

14 Zoran, not Zigic but Vokic, the names are similar -- a man with long

15 hair, an earring. He had fair hair and had the same sort of baton, a

16 metal baton, and 20 metres from the "white house" he used this baton to

17 beat Mrkalj Edin. This description: He was tall, fair, had an earring.

18 This corresponds Fadil Avdagic's description of Zigic: Tall, fair, with

19 an earring. We saw in the expert's testimony that Zigic never was fair

20 or tall. Avdagic said that on that occasion Zigic had fair hair -- or

21 rather, yellowish-reddish dyed hair. A face with yellowish-reddish hair

22 killed Becir Medunjanin. An eyewitness, Fadil Avdagic, made this

23 statement and the judgement is based on this statement. This witness

24 says that he was a metre or a metre and a half away from the place where

25 this event occurred.

Page 731

1 KV3 and KV4 said today that this person had dark hair. Witness T

2 said that Fadil Avdagic, whose head he was holding in his hands, this

3 witness also said that the person had dark hair.

4 These inconsistencies aren't just slight or minor

5 inconsistencies.

6 We heard from my colleague that Witness KV3 recognised Zigic to

7 be the person who arrived in Omarska in a van. This fact suits us, the

8 fact that he recognised Zigic. We link it up to the fact that was also

9 stated, that that person was in no way connected to the murder of Becir

10 Medunjanin, and this was stated very unambiguously. He said that he

11 didn't know his name, but he said that he knew Zigic's name and that he

12 knew him well before Omarska.

13 Certain doubts of today's witness: For example, he said that he

14 thought that he -- that two persons were Zigic. I don't think the

15 witness said who the other person was, but he made two mistakes. He was

16 mistaken in the case of Zigic and in the case of Kos. As he himself

17 said, he was in charge of the shift.

18 I wouldn't want anything to be misunderstood by Mr. Re. I think

19 that they have acted in a correct manner. But I would just like to say

20 that the witnesses have consideration for them. I was on that side.

21 People went there and they were very grateful for everything that was

22 done and I want to -- to inform you of the difference of the responses

23 provided by the witness for the Prosecution and for the Defence. They

24 don't want to offend the Prosecution, and there were certain

25 inconsistencies. But I don't think it's important. What is important is

Page 732

1 that the witness quite unambiguously stated that Zigic was not a

2 participant. We're just mentioning witnesses here who we heard over the

3 last few days. We're not mentioning the testimony of other witnesses, at

4 least 10 other witnesses or more than 10 witnesses who were sure that

5 Zigic wasn't there and that he was not a participant, and we're not

6 mentioning inconsistencies in the testimony of these witnesses and the

7 other witnesses. We'd be grateful if this Appeals Chamber applied the

8 standards from the Celebici case, especially the standards that were

9 applied in the case of the accused Delic.

10 The witnesses for the Prosecution were dismissed for certain

11 inconsistencies, certain errors that were mentioned with regard to other

12 facts. We would like the standards from the Kupreskic case to be

13 applied, as I have already said.

14 And finally, we think that the Chamber, regardless of all the

15 positions -- all the opinions I have expressed, has the discretion to

16 assess the situation, the case, and it should be consistent with the

17 Celebici judgement and the sentencing judgement. I think they themselves

18 reached certain conclusions. They didn't bind their own hands. And it

19 is first necessary to establish certain factual truths, and also one must

20 establish that one can't be accused on the basis of contradictory

21 evidence.

22 Witness T - and you will read his statement in detail; he's a key

23 witness for the judgement - compare what Witness T said and what Fadil

24 Avdagic said. These are two witnesses. Compare that with what's been

25 said today. Compare that with the statement of Azedin Oklopcic, who was

Page 733












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Page 734

1 quoted on 27 occasions in the judgement. He is believed and it was on

2 his testimony that Zigic was also accused. But he also says that Zigic

3 didn't participate in the murder of Becir Medunjanin. But he wasn't

4 believed here. Abdulah Brkic, we heard that he was present in the "white

5 house" today. He knows Zigic. He was quoted on nine occasions in the

6 judgement. He accuses Zigic in three or four places, but he also

7 explicitly states that Zigic didn't murder Becir Medunjanin and that he

8 didn't participate in that. Why isn't he believed, if everything else is

9 believed? We would like to know the reasons for which this witness is

10 not believed. I don't want to go over innumerable arguments. I think I

11 am a little confused, not because that is my nature but because I have at

12 least between 100 and 200 other inconsistencies in mind and other matters

13 that are not clear with regard to all the charges against Mr. Zigic.

14 Thank you.

15 JUDGE SHAHABUDDEEN: Mr. Re, do you have the colour photo board

16 now?

17 MR. RE: I have one of them; that's Exhibit KV -- sorry, DA5,

18 which was the one shown to DV -- sorry, KV4. If I can produce that to

19 the Appeals Chamber.

20 JUDGE SHAHABUDDEEN: So that one is already part of the record,

21 is it?

22 MR. RE: Without comparing it -- there were some photo boards in

23 the trial record, but without comparing that exact one with what I

24 suspect are Exhibits 31 --/129A to D, I don't know. But that -- that is

25 the original of the one shown to KV4.

Page 735

1 JUDGE SHAHABUDDEEN: Mr. Stojanovic, do you agree to it?

2 Mr. Stojanovic, is that a photo board in which you're interested?

3 MR. STOJANOVIC: [Interpretation] Could I see it, please.

4 Yes, that's the one. I don't know whether we could obtain the

5 same thing for Witness KV3, but this is certainly the one. Thank you.

6 JUDGE SHAHABUDDEEN: [Microphone not activated]

7 THE INTERPRETER: Microphone, please.

8 Microphone, Your Honour, please.

9 JUDGE SHAHABUDDEEN: [Previous translation continues] ...

10 Mr. Fila.

11 MR. FILA: [Interpretation] I apologise. I thought that Mr. Re

12 wanted to say something, or perhaps not.

13 JUDGE SHAHABUDDEEN: You'd like to say something, Mr. Re?

14 MR. RE: Yes. I've just produced -- the first one I produced was

15 the Exhibit DA5. I've now been given a copy of DA2, which was the one

16 shown to Witness KV3, who testified yesterday. And I can also produce

17 the original. This is the original with the original notes as well -- to

18 the Appeals Chamber.

19 JUDGE SHAHABUDDEEN: Could they be passed to Mr. Stojanovic.

20 MR. STOJANOVIC: I believe it's correct, but just a moment. I

21 have a very bad copy.

22 That's it. Yes.

23 [Interpretation] Thank you.


25 [Appeal Chamber confers]

Page 736

1 JUDGE SHAHABUDDEEN: My colleagues on my left are content. Then

2 we shall proceed.

3 Mr. Fila, do you have any remarks?

4 MR. FILA: [Interpretation] Your Honours, very briefly, two or

5 three sentences only, if I may.

6 First of all, the additional evidence does not directly affect

7 Mr. Radic, but indirectly everything that happened in Omarska affects

8 everyone. And according to your judgement, there is not a direct

9 relationship between the victim and the torturer, but it applies to all

10 round. That is why after these three days I still stand by my submission

11 that the judgement should be reviewed in line with Rule 117(C) and that

12 there should be a re-trial. But I must repeat that I personally cannot

13 agree with the test applied by my learned friend Re to the effect that no

14 one reasonable would pass such a judgement and that that would mean that

15 the Trial Chamber was unreasonable. That is not what I mean. That is

16 excessive, and I would never say of any individual Judge that his

17 decision was unreasonable. I haven't said that in 41 years, and I don't

18 think I should change my principles. That is as far as that is

19 concerned.

20 Secondly, I wish once again to express my gratitude and to convey

21 my personal feelings to this Chamber that I feel privileged and honoured

22 to act as Defence counsel in this Chamber. Up to now I have had that

23 opportunity to act as Defence counsel in the presence of only one member

24 of this Trial Chamber.

25 And thirdly, that there's an identical saying among our three

Page 737

1 peoples which says that "The end of every act is the most important."

2 And in your case, it is your judgement; and that, I expect that climax or

3 that final act to come as soon as possible because it is now almost four

4 years that we have been waiting for that.

5 I will use another proverb. I don't know how it translates, and

6 that is "When something is done in haste, it cannot be good." However,

7 this is not hasty enough to become inappropriate. I would appeal to The

8 Chamber to make their determination as soon as possible.


10 MR. J. SIMIC: [Interpretation] Your Honours, I have nothing to

11 add nor to ask. We have said everything that we had to say, and this

12 part of the proceedings doesn't affect Mr. Prcac, but it does affect all

13 of us. As colleague Fila has said, we have drawn attention to certain

14 formal omissions in the trial itself, and if those errors were admitted,

15 then the judgement should be changed; but if not, then we feel that the

16 factual basis of this judgement has not been established or has

17 erroneously been established and not in accordance with the standard that

18 the guilt be established beyond any reasonable doubt and that that

19 standard cannot be said to apply in this case at all.

20 Thank you very much.

21 JUDGE SHAHABUDDEEN: Thank you indeed. We're very grateful for

22 all the assistance we've had from the bar, and I want to say a special

23 word about the colour photo board.

24 Mr. Stojanovic, you can be assured that the Bench will consider

25 very carefully the photo board, the colour photo board, and we also thank

Page 738

1 the Prosecution for supplying it at short notice.

2 Now, with that, I have to say that we will reserve our judgement

3 and we will give that as soon as possible. Meanwhile, I would say this,

4 that we would now adjourn these proceedings, and after five minutes my

5 colleague Judge Weinberg de Roca will return to take the Status

6 Conference which should be held. And I think it is referred to in one of

7 the papers. So Judge Weinberg de Roca will reside over the Status

8 Conference.

9 Meanwhile, we adjourn these proceedings. We thank you all, and a

10 judgement will be delivered sometime in the autumn. Thank you.

11 --- Whereupon the hearing adjourned at 12.26 p.m.,

12 to be followed by a Status Conference.