Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26932

 1                          Tuesday, 29 January 2008

 2                          [Open session]

 3                          [Rule 98 bis]

 4                          [The accused entered court]

 5                          [The accused Pusic not present]

 6                          --- Upon commencing at 2.23 p.m.

 7            JUDGE ANTONETTI: [Interpretation] Registrar, kindly call the case,

 8    please.

 9            THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon

10    everyone in and around the courtroom.  This is case number IT-04-74-T, the

11    Prosecutor versus Prlic et al.  Thank you, Your Honours.

12            JUDGE ANTONETTI: [Interpretation] Very well.  Today we are

13    Tuesday, the 29th of January, 2008.  I would like to greet all the

14    representatives of the Prosecution.  There are a number of them here

15    today.  I would also like to greet all Defence counsel and the accused.

16            I shall now ask the registrar to move into closed session for a

17    few minutes because I would like to make a statement.

18                          [Private session]

19  (redacted)

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 26933











11    Pages 26933-26934 redacted. Private session















Page 26935

 1                          [Open session]

 2            THE REGISTRAR:  Your Honours, we're back in open session.

 3            JUDGE ANTONETTI: [Interpretation] I had understood that

 4    Ms. Alaburic wanted the floor.

 5            MS. ALABURIC: [Interpretation] Good afternoon, to you and to

 6    everyone in the courtroom.  I would kindly ask you if we can just clear up

 7    one thing that is not clear to me at least.  Yesterday you rendered a

 8    decision on the motion filed by General Petkovic's Defence.  It was a

 9    subsidiary motion in case the chief motion is not granted.  The subsidiary

10    motion was that by the application of Rule 6(D), the 98 bis procedure

11    should be carried out under the Rule as it stood at the time when this

12    trial started.  You shall decision is recorded at pages 50 and 51, but we

13    did not get your decision on our chief motion and that was our motion for

14    you to find that the -- that if a single count contains several incidents

15    that prejudices the rights of our client and that the Prosecutor should

16    divide up the counts so that they are now single-incident counts, or that

17    for the purposes of this trial a single count is considered to be a set of

18    single-incident counts and that each part of the count that contains a

19    single incident be treated as such and ruled on as such.

20            I am aware of the fact that ruling on the subsidiary motion means

21    that our chief motion was rejected and that is why we indicated that we

22    will not be filing our 98 bis arguments, but I would like to ask you to

23    avoid any misunderstanding, to render a clear decision on our chief

24    motion.  The chief motion is recorded in the transcript yesterday at pages

25    31 and 32.

Page 26936

 1            Thank you very much.

 2            JUDGE ANTONETTI: [Interpretation] I'm speaking on the control of

 3    my colleagues concerning the main motion.  We said that an indictment had

 4    to be contested during the phase -- the pre-trial phase, and that -- you

 5    did not do that, and that therefore it -- there was no possibility in the

 6    mind of the Judges or the Chamber to change anything in the indictment.

 7    And starting from that point in the decision, the ruling we made, we

 8    invited you to deal with paragraphs 229 and following of the indictment

 9    about the counts, and this is the point of view of the members of the

10    Chamber.  This procedure of 98 bis concerns only the counts, those which

11    are under great titles like persecution, murder, intentional murder, and

12    so on, contain other crimes are subsumed with other crimes which means to

13    my mind that about a certain count.  I'll take an example concerning a

14    certain account.  I'll take any example.

15            For instance, rape.  Rapes there have been in several

16    municipalities, they have occurred, and therefore the title of the chapter

17    is "Rapes."  "Rapes."  Now, in several municipalities there have been

18    crimes.  Rapes have occurred.  And the 98 bis procedure is the following:

19    If the Prosecution does not have evidence on rape occurring in

20    such-and-such a municipality, this doesn't mean that there would be

21    acquittal on that count inasmuch as there are other elements concerning

22    other rapes elsewhere.  Therefore, because of this there will not be

23    acquittal.

24            While in the previous system of the 98 bis former text, when in a

25    municipality a rape occurred but was not established and there is no

Page 26937

 1    evidence to establish it, then there could be a partial acquittal.

 2            So with the new procedure acquittals will take place, will occur,

 3    on each crime when the judgement will be rendered.

 4            Let's take another example and let us imagine that an indictment,

 5    counts are destructions, and the Prosecution has no evidence about

 6    destructions.  Defence says you have no evidence about any destructions.

 7    Then there will be an acquittal on the count of destructions because there

 8    is no evidence.  But imagine that in an indictment this question of

 9    destructions are, let's say, found in ten different municipalities, in

10    nine municipalities there is no evidence, for instance, but in one of the

11    municipalities there would be some evidence.  In that case the Chamber

12    will not pass an acquittal because there is one element concerning one

13    municipality.  But at the end of the day in the judgement there will be

14    acquittal for the nine examples or municipalities.

15            So the main question which you have raised, which was to

16    dissociate crimes, we have rejected your approach.  We considered that we

17    were seized of counts within the 98 bis procedure, and we have to rule on

18    elements.  We have evidence which might allow a reasonable trier of fact

19    beyond any doubt seeing this evidence that indeed a crime has been

20    committed.  So this is what I wanted to tell you.

21            Now, if my own colleagues are in another mind they will tell me,

22    of course, but I think we all agree.

23            MS. ALABURIC: [Interpretation] Your Honour, thank you very much

24    for your clarification.  [French on English channel] ... Understood you

25    originally, but the one thing that is missing from the transcript in our

Page 26938

 1    view is that this explanation is indeed the view of the entire Trial

 2    Chamber.  I would like to have that on the record, please.  Thank you.

 3            JUDGE ANTONETTI: [Interpretation] Yes, indeed.  This is now on the

 4    transcript.  My colleagues agree.  And if any of my colleagues does not

 5    agree he can ask for the floor.

 6            Now, I'm going to give the floor to the Defence of Mr. Coric who

 7    was already ready yesterday.

 8            Madam, you now have the floor.

 9            MS. TOMASEGOVIC TOMIC: [Interpretation] Good afternoon, Your

10    Honours.  Good afternoon to everyone in the courtroom.

11            In light of the Rules of this Tribunal and the standards set by

12    other Trial Chambers in previous cases, and bearing in mind that we come

13    from a legal system where there is no 98 bis principle, I would try to

14    limit my presentation to what I believe to be appropriate in light of the

15    jurisprudence of this court related to Rule 98 bis.

16            In my view, Rule 98 bis is applicable only in those cases where

17    the evidence called by the Prosecution is such that even when seen at its

18    highest, the worst case scenario for the accused and the best case

19    scenario for the Prosecution, are insufficient to support the allegations.

20    Although the Trial Chamber will have to assess all the evidence at the end

21    of the trial, I nevertheless believe that it would not go beyond its

22    authority if having analysed the evidence of the Prosecution for itself

23    and in the context of all the evidence presented in the course of the

24    Prosecution case it decides that the Prosecution has failed to prove the

25    guilt of the accused beyond reasonable doubt regarding some counts of the

Page 26939

 1    indictment.

 2            The burden of proof for all the allegations in the indictment

 3    rests on the Prosecution, and the Prosecution has to meet this obligation

 4    in the course of its case, because once the Defence starts presenting its

 5    case, the guilt of the accused will -- no evidence will be called to prove

 6    the guilt of the accused if it has not been proven beyond reasonable doubt

 7    in the course of the Prosecution case even in the context of Rule 98 bis.

 8            Since only the counts of the indictment in their totality are the

 9    subject of Rule 98 bis proceedings, not individual paragraphs, the Defence

10    will limit the presentation only to those counts of the indictment that

11    the Defence believes have not been proven to the standard that is required

12    by Rule 98 bis.  But I would like to note that the Prosecution did not

13    adduce evidence about some paragraphs in the indictment.

14            Some of the previous cases such as, for instance, the Naletilic

15    and Martinovic case show that the counts of the indictment are dropped

16    with regard to each individual accused.  In our view, the Chamber may

17    decide to drop a count for one of the accused, and this is the only way to

18    ensure the right of each accused to be tried as an individual.

19            I would also like to note at the beginning that the Defence is

20    aware that the Trial Chamber will drop those counts of the indictment it

21    deems appropriate proprio motu.  We are counting on that, in fact.  For

22    reasons of efficiency and for tactical reasons, the Defence will not be

23    going -- will not be analysing in-depth other counts of the indictment

24    that might also be dropped after the 98 bis arguments and hearings, in our

25    view.

Page 26940

 1            I would like to stress and take this opportunity to stress once

 2    again that in our opinion Valentin Coric is innocent on all the charges,

 3    and it is only for the reasons that I outlined above and because of the

 4    low threshold that is applied in the Rule 98 bis proceedings that I don't

 5    want to prove that in detail.

 6            As we go on when the Defence will refer to victims and crimes, we

 7    will not be examining the facts of the matter, whether the victims are

 8    indeed victims and whether crimes really did occur, but the Defence would

 9    like to stress that this strategy must not be taken as an admission of

10    those facts.

11            Now I would like to address count 4 of the indictment, rape as a

12    crime against humanity.  We will not now be going into the issue whether

13    the act described in the indictment really did happen and whether those

14    acts can be qualified as rape as a crime against humanity.  I would rather

15    focus on the -- on trying to show the Trial Chamber that Valentin Coric

16    cannot be considered responsible for any of the rape incidents listed in

17    the indictment.

18            The Prosecution relies on two fundamental modes of responsibility

19    for rape, command responsibility under Article 7(3) of the Statute, and

20    their theory of joint criminal enterprise under Article 7(1) of the

21    Statute.

22            Let me begin by trying to ascertain whether any evidence was

23    called which taken at its highest, or if the highest probative value were

24    to be ascribed to it, could support the allegation that Valentin Coric is

25    responsible for any of the rape incidents listed in the indictment.  The

Page 26941

 1    relevant paragraphs for count 4 in the indictment are paragraphs 15

 2    through 17, 38, 39, 57, 59, 99, 109, 141, 211, and 213.  I will first be

 3    addressing paragraphs from count 4 of the indictment that pertain to

 4    alleged rapes in certain municipalities, and the first municipality I will

 5    deal with is the municipality of Mostar.

 6            Only one rape victim from Mostar testified before this Trial

 7    Chamber in this case.  That was Witness CX.  In her evidence, the witness

 8    identified those who raped her as members of the unit under the command of

 9    Vinko Martinovic, Stela, and that can be seen at pages 12708 of the

10    transcript, lines 4 through 13.

11            The only other rape victims that we are aware of are (redacted)

12    (redacted).  The reason why we know the names of these women

13    is because they voluntarily reported the rape to the crime --

14            JUDGE ANTONETTI: [Interpretation] You should not mention names

15    where -- was it a closed session?  Because as a rule, the victims of rape,

16    their names should never be mentioned.

17            MS. TOMASEGOVIC TOMIC: [Interpretation] Your Honour, I do

18    apologise.  The reason why I failed to notice that is because these two

19    people did not testify.  Their names -- we know them because they are

20    contained in a document that is not under seal.  But I do apologise, and I

21    do not think I will be mentioning any other names.

22            JUDGE ANTONETTI: [Interpretation] We'll make an order for these

23    two names, to make sure that they will be struck out so that this will not

24    have any consequences for the families of the persons concerned.

25            So you may continue.

Page 26942

 1            MS. TOMASEGOVIC TOMIC: [Interpretation] The reason why we know

 2    those people, their names, is because they voluntarily reported the rape

 3    to the crime division of the HVO military police, and after they reported

 4    the rape an investigation was conducted.  This can be seen from Exhibit P

 5    03508.  The last two names can be found again in Exhibit P 03523, and this

 6    is a criminal report filed against the perpetrator of that crime.  It

 7    indicates that five interviews were conducted and a specialist medical

 8    report is appended to this report.

 9            Most importantly, there is not a single other piece of evidence,

10    and all the evidence is second-hand, where the names of the victims are

11    mentioned.  And if one doesn't know the name of the victim or the identity

12    of the suspects, this kind of evidence cannot serve to support this count

13    of indictment.

14            There is another crucial point.  No evidence has been called to

15    show whether any of the perpetrators of such -- such a crime acted with

16    intent or knowledge that their assaults were part of a large-scale or

17    widespread attack on a civilian population.  To simplify, the rapes that

18    did occur, and as I've already noted, precious little evidence was called

19    regarding the incidents of rape, all those were unrelated incidents

20    involving criminals who were exploiting the war situation.  The war

21    situation also made it impossible or disrupted any efforts to investigate

22    and prosecute crimes, but real efforts were made to prevent crimes and to

23    punish those who were responsible.  This can be seen from several sources.

24    For instance, the reports that rapes were investigated and the fact that

25    the alleged rapes occurred during the night.  This can be seen from the

Page 26943

 1    Exhibit P 03672.

 2            At the same time, we have to stress that rape cases were for the

 3    most part not reported to the authorities, and this makes an investigation

 4    difficult.  It is quite clear.

 5            The Defence would in particular like to bring to the fore the

 6    evidence by Larry Forbes, an UNCIVPOL officer who interviewed two rape

 7    victims, and answering questions related to Exhibit P 05800 recorded at

 8    page 21423 of the transcript, said that the victim had not been able to

 9    identify the perpetrators and that the rape victims that he had

10    interviewed did not want to tell their names to him and were unwilling to

11    report the crime to the HVO authorities, and that the HVO authorities, as

12    far as he knew, did not know of those incidents in the relevant time.

13            The evidence of this same witness shows that only one of the

14    victims interviewed by the witness had actually reported the rape to the

15    HVO police and that the name of the perpetrator was -- I think that there

16    is no reason why I shouldn't mention his name in public session.  Perhaps

17    it would be better to just skip the name.  You can see that at the page of

18    the transcript, relevant page of the transcript.  It might lead to the

19    identification of the victim.

20            Although in Rule 98 bis proceedings the Defence may invoke only

21    the exhibits tendered by the Prosecution, the Defence would like to stress

22    that the case file contains Exhibit 5D 02113.  This document shows that

23    the military police is actually looking for this perpetrator.

24            At transcript page 21426, Witness Forbes said that to be fair to

25    the HVO police, he felt he had to say that it would be difficult to

Page 26944

 1    prosecute the perpetrators anywhere in the world once a victim leaves the

 2    area and is no longer available to the law enforcement agencies.  He also

 3    said that in the one and only rape case that he dealt with, the one that

 4    was reported to the HVO police, the police authorities did take steps that

 5    they were in a position to take in the time and in the circumstances that

 6    they found themselves in.

 7            The Defence will also analyse evidence about the circumstances

 8    described in paragraph relating to the municipality of Prozor.  Three rape

 9    victims from the Prozor municipality are listed in the confidential annex

10    to the indictment, and all of those victims have testified before this

11    Trial Chamber, and that is why we will concentrate on their evidence.

12            Witness BN stated that while she was in the Podgradje village that

13    soldiers would come to the village during the night and would take the

14    women away, but she noted those soldiers did not wear uniforms.  They wore

15    civilian clothes or black clothes, and they were their neighbours.

16            While she was in Duge, the women were mistreated by men who were

17    allegedly members of the Kinder Platoon, as it was called, but the witness

18    did not have any direct knowledge as to the affiliation of the

19    perpetrators.  What she knew she learned from third parties.

20            The witness also testified that the HVO police had told her that

21    they should not be leaving the village and that they were there for their

22    own safety.  The women were afraid of soldiers who would come when the

23    guards were not there to see them.

24            The witness also testified that three armed persons had come into

25    the house at night.  Only one of them was wearing a camouflage uniform

Page 26945

 1    with HVO insignia.  The three men tried to take her away, but her

 2    stepmother's sister leaped out of the window and brought the guards back.

 3    On that occasion, one of the guards was wounded from a firearm because he

 4    tried to protect the witness.  And he did not manage to stop those men,

 5    and the witness was taken into the woods where she was raped by a man

 6    wearing civilian clothes.

 7            It must be noted here that the witness had never told anyone at

 8    the time that she was raped, and she did not report the rape to anyone.

 9            Witness BO also testified about the rape of Witness BN, but since

10    Witness BN testified directly before the Trial Chamber, the Defence is not

11    going to relate to that part of her testimony.

12            Witness BO was raped several times, and one of the perpetrators

13    allegedly was a Muslim member of the HVO.  The witness testified that

14    during the night she and other women would hide, because night-time was

15    the most dangerous as far as they were concerned, because the perpetrators

16    usually came at night or in the evening.

17            The witness, among other things, testified and said to the fact

18    that two guards were very good towards them and that they were policemen

19    who tried to protect them but did not succeed in doing so.  Furthermore,

20    the witness claims that one military policeman did prevent a possible rape

21    on a previous occasion by that same perpetrator but that the perpetrator

22    returned again when the guard was no longer present.

23            The Defence is fully conscious of the fact that a ruling pursuant

24    to 98 bis can only be founded on Prosecution evidence, but within the

25    context of the statement of this witness, the Defence would like to draw

Page 26946

 1    the Trial Chamber's attention to two exhibits, and they are 3D 00429, and

 2    3D 00422.

 3            Exhibit 3D 00429 is a statement by that same witness to the effect

 4    that with the security service centre on the 25th of --

 5            MR. SCOTT:  Excuse me, Your Honour.  Excuse me, Your Honour.  I

 6    was waiting to see if perhaps we were moving on to -- to different

 7    evidence, but while I appreciate the fact that counsel's using a pseudonym

 8    and referring to the witnesses, nonetheless this evidence -- much of this

 9    evidence was given in closed session, and some of the facts may be

10    sufficiently unique to disclose to some people with some knowledge at

11    least of who some of these people are.

12            So I would ask, Your Honour, that when we're dealing with this

13    sensitive kind of material and when that evidence was given in closed

14    session that notwithstanding the fact that counsel's using the pseudonym,

15    we should go into private session.

16            JUDGE ANTONETTI: [Interpretation] Madam, if you are going to quote

17    elements which would give a possibility of identifying the victims, this

18    should be done in closed session or private session.  You have mentioned

19    two documents, 429 and 422 of the 3D series.  Should we go to closed

20    session?  You are the one who should know.  I'm listening to what you're

21    saying, but I don't have all the elements.

22            All right.  So let's go to closed session for a while.

23                          [Private session]

24   (redacted)

25   (redacted)

Page 26947











11    Pages 26947-26948 redacted. Private session















Page 26949

 1    (redacted)

 2                          [Open session]

 3            THE REGISTRAR:  Your Honours, we are in open session.

 4            MS. TOMASEGOVIC TOMIC: [Interpretation] Your Honours, what is

 5    abundantly clear --

 6            THE REGISTRAR:  I'm sorry, Counsel.

 7            Your Honours, we're back in open session.

 8            MS. TOMASEGOVIC TOMIC: [Interpretation] What is abundantly clear

 9    here is that the rapes were definitely not part of any larger plan.  Had

10    such a plan existed, then quite certainly such crimes -- there would have

11    been attempts to hide those crimes before foreign observers.  But from the

12    evidence adduced, the contrary would appear be true.  From the evidence

13    we've seen, we see that Muslim persons locate -- were located in the

14    village -- municipality of Prozor and that they were free to speak to

15    international monitors and observers, although those persons would

16    announce their arrival with the HVO authorities and that the authorities

17    knew that these crimes had taken place, and had they wished to cover up

18    the evidence they could have refused to have contacts of this kind.  And

19    this is borne out by the testimony of Witness Rudy Gerritsen and that was

20    Exhibit P 10030, and what I've just said is recorded on page 10 of that

21    statement.

22            Furthermore, why would such crimes be done under cover of night,

23    and if such a plan had existed, why would those acts have been prosecuted?

24            I think what I'm going to say next is not dangerous for any

25    witness, but I'd like to go into private session for a few minutes just to

Page 26950

 1    avoid any misunderstanding.

 2            JUDGE ANTONETTI: [Interpretation] Very well.  Closed session,

 3    please.

 4                          [Private session]

 5  (redacted)

 6  (redacted)

 7  (redacted)

 8  (redacted)

 9  (redacted)

10  (redacted)

11  (redacted)

12  (redacted)

13  (redacted)

14  (redacted)

15  (redacted)

16  (redacted)

17  (redacted)

18  (redacted)

19  (redacted)

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 26951











11    Page 26951 redacted. Private session















Page 26952

 1    (redacted)

 2                          [Open session]

 3            THE REGISTRAR:  Your Honours, we are back in open session.

 4            THE INTERPRETER:  Microphone, please, Counsel.  Microphone,

 5    please.  I think somebody's microphone is on in addition to the Defence

 6    counsel.

 7            JUDGE ANTONETTI: [Interpretation] I am the culprit.

 8            MS. TOMASEGOVIC TOMIC: [Interpretation] The Defence maintains that

 9    the Prosecution has not managed to prove Valentin Coric's responsibility

10    on the basis of Article 7(3) of the indictment and count 4 even to satisfy

11    the criteria according to 98 bis, 98 bis Rule and that for the following

12    reasons:  The Defence would like to stress that the Prosecution has not

13    proved and shown that the perpetrators of the crime of rape were persons

14    who were subordinate to Valentin Coric, nor that Valentin Coric had

15    effective control over them.

16            In view of the fact that the Prosecution has not proved the above,

17    there is no need to continue an analysis of Valentin Coric's

18    responsibility under Article 7(3) of the Statute.

19            The Defence also maintains that the Prosecution has not proved

20    that Valentin Coric planned, incited, ordered and/or committed the crime

21    under count 4 of the indictment.

22            I would now like to refer to the alleged joint criminal enterprise

23    charge.

24            For him to be held responsible under that charge, the Prosecution

25    must prove that Valentin Coric intended to have the crimes of rape

Page 26953

 1    committed and that he took part in the system of abuse or that specific

 2    incidents of rape were the natural and foreseeable consequence that could

 3    happen.

 4            Three basic forms of joint criminal enterprise are stipulated.

 5    With relation to the first mode of the joint criminal enterprise, the

 6    Defence would like to stress the following:  Whether the alleged joint

 7    criminal enterprise and Valentin Coric as a part of it intended rapes to

 8    occur.

 9            I have to stress that I accept in no way that the joint criminal

10    enterprise existed at all, but for the moment let us assume that it did

11    exist as the Prosecution maintains and that through various criminal means

12    he wanted to expel the Muslims from the places they lived in and that

13    rapes would be incorporated on that basis into a plan.  Is there any

14    evidence and proof to show that rape was conducted to facilitate this plan

15    and that any of those who were involved in the plan intended rape to take

16    place?  The answer to that is quite clearly no.  Quite the contrary is

17    true.

18            What is absolutely crucial, and I cannot stress this enough, is

19    that there is no proof and evidence that Valentin Coric shared any of the

20    criminal goals that are stipulated in the indictment.  As an example, I

21    wish to draw the Trial Chamber's attention to Exhibit P 01350, which

22    represents the minutes from a meeting held on the 27th of January, 1993,

23    in the military police, at which meeting the previous event in Gornji

24    Vakuf was discussed, as well as the military police's participation in

25    those events.

Page 26954

 1            Among other things, from the minutes we can see that it was the

 2    task of the military police to protect the military police in that area as

 3    well as the population and to ensure normal passage.  It is clearly seen

 4    from this document that Valentin Coric considers that it is the duty of

 5    the military police to protect and guard the population and without any

 6    difference on religious base or ethnic base, and that this was his

 7    explicit stand and that he informed the members of the military police of

 8    his position.

 9            In the entire area covered by the indictment, active measures were

10    taken to try and prevent rape from happening.  The crime of rape, as I

11    said earlier on, and as I demonstrated previously, was the subject of

12    investigations and Prosecutions within the frameworks of the possibilities

13    and circumstances.

14            From the way in which the rape crimes were committed based on the

15    testimony of the witnesses, namely that the perpetrators endeavoured to

16    hide the crime and came into villages by night and under cover of darkness

17    and from the nearby forest, they threatened witnesses not to tell anybody

18    about what had happened to them, it is quite clear that the perpetrators

19    knew that what they were doing is something that was prohibited and

20    wouldn't not be tolerated and that severe sanctions would be taken against

21    them if their crimes were to be uncovered.

22            We would like to note in particular that victims did not report

23    rapes as a rule, either because they were afraid that the perpetrators

24    would take their revenge or because of the shame, and that they were

25    unable to identify perpetrators as members of a certain HVO unit.  All

Page 26955

 1    they did in some cases was to describe them as people wearing civilian

 2    clothes, while evidence has shown that the perpetrators of those crimes

 3    were investigated and prosecuted.

 4            It is also visible from the evidence referenced above that in a

 5    very few -- in very few cases when rapes were actually reported the

 6    military police did in fact take all the necessary steps to ensure that

 7    the perpetrators were prosecuted.  The Prosecution does not possess a

 8    single piece of evidence to indicate that Valentin Coric, as a member of

 9    any joint criminal enterprise, intended or acquiesced to any plan that

10    would include the crime of rape, and no evidence has been adduced to

11    indicate that such a plan existed at all.

12            And it is also important to note the serious effects, the severe

13    effect that the rape may have on the victim notwithstanding that the

14    number of alleged rapes was very low if we compare this to other war

15    zones.  If any member of the alleged joint criminal enterprise wanted the

16    rapes to be committed, the number of victims would undoubtedly be much

17    higher.

18            So to conclude, I have to say that no evidence has been called to

19    support the allegations of the Prosecution that a joint criminal

20    enterprise existed, that inter alia intended for the crimes of rape to be

21    committed.  The Prosecution therefore has not proven that Valentin Coric

22    is responsible for the crime of rape under Article 7(1), joint criminal

23    enterprise, first, second, and third mode.

24            In the indictment the Prosecution alleges that Valentin Coric was

25    responsible for the crimes listed in counts 1 through 26 of the indictment

Page 26956

 1    under Article 7(1) of the Statute.  In paragraphs 218, 219, and 220 of the

 2    indictment, it is alleged that Valentin Coric planned, instigated, ordered

 3    and/or committed crimes he is charged with under this indictment under

 4    Article 7(1) of the Statute.

 5            In this part of its presentation, Valentin Coric's Defence will

 6    say something about the responsibility of Valentin Coric under Article

 7    7(1), planning, instigating, ordering or aiding and abetting -- otherwise

 8    aiding and abetting for the acts described in the following counts of the

 9    indictment:  Count 5, inhuman treatment, sexual assault as a grave breach

10    of the Geneva Conventions of 1949, punishable under Statute Articles 2(B);

11    count 19 excessive destruction of property not justified by military

12    necessity and carried out unlawfully and wantonly as a grave breach of the

13    Geneva Conventions of 1949, punishable under Article 2(D) of the Statute;

14    count 20, wanton destruction of cities, towns or villages or devastation

15    not justified by military necessity as a violation of the laws or customs

16    of war, punishable under Article 3 -- 38(B) of the Statute; count 21,

17    destruction or wilful damage to institutions dedicated to religion or

18    education as a violation of the laws or customs of war punishable under

19    Statute Article 3(D); count 24, unlawful attack on civilians, Mostar, a

20    violation of the laws or customs of war as recognised under customary law

21    and Article 51 of Additional Protocol I and Article 13 of Additional

22    Protocol II of the Geneva Conventions of 1949, punishable under Article 3

23    of the Statute; count 25, unlawful infliction of terror on civilians,

24    Mostar, as a violation of the laws or customs of war, recognised under

25    customary law and Article 51 of Additional Protocol I and Article II of

Page 26957

 1    the Additional Protocol II of the Geneva Conventions of 1949, punishable

 2    under Article 3 of the Statute; and count 26, cruel treatment, Mostar

 3    siege, as a violation of the laws or customs of war, as recognised by

 4    Article 3(1)(a) of the Geneva Conventions and punishable under Article 3

 5    of the Statute.

 6            In this section the Defence will not be analysing this mode of

 7    responsibility of Valentin Coric for the acts in -- alleged in count 4 of

 8    the indictment because it has already been dealt with.

 9            At this stage of the proceedings, the Defence will not be going

10    into an analysis of whether the actual crimes were committed, but that is

11    because of the specific nature of the Rule 98 bis proceedings, not because

12    it is not challenging that those crimes were actually committed.

13            In the oral arguments Valentin Coric's Defence will show that the

14    Prosecution has failed to prove individual criminal responsibility of

15    Valentin Coric under this mode of responsibility and for the crimes

16    described in the counts of indictment that were referred to above.  In our

17    presentation, we will first specify the requirements that have to be met

18    for responsibility under Article 7(1) to be proven, planning, instigation,

19    ordering, or otherwise aiding and abetting the commission of a criminal

20    offence.

21            The Trial Chamber in its judgement in the Delalic and others case

22    took the view that the Prosecution has to prove the existence of both the

23    actus reus and mens rea for individual criminal responsibility to be

24    ascribed to various degrees of participation in the crime that is under

25    the jurisdiction of the International Criminal Tribunal.

Page 26958

 1            The actus reus that is required for this responsibility is the act

 2    of participation that in the actual fact contributes to or influences the

 3    commission of the crime.  That is why the participation has to have a

 4    direct and substantial effect on the commission of the illegal act.

 5            The requirement that the act of participation has to be committed

 6    with the knowledge that it will assist the principal perpetrator in the

 7    commission of the crime is -- indicates the required intent or mens rea.

 8    There has to be the intent that involves the awareness of the act of

 9    participation and a conscious decision to participate through planning,

10    instigating, ordering, committing or aiding and -- or participating in any

11    other way in the commission of the crime.

12            The Defence claims that the Prosecution has not -- has failed to

13    prove that there was this direct act of participation on the part of

14    Valentin Coric that actually contributed to or influenced the commission

15    of those crimes.  Consequently, the existence of mens rea or the awareness

16    that he is participating in the commission of these acts has not been

17    proven for Valentin Coric.

18            Planning means or requires that one or several persons are trying

19    to think of ways in which to commit a criminal offence both in the

20    preparatory phase and the commission phase.  The Defence claims that the

21    Prosecution has failed to adduce any evidence that Valentin Coric took

22    part in conceiving any of those crimes.  In order for the finding of guilt

23    by instigation to be recorded, the Prosecution needed to prove that the

24    accused Valentin Coric, by his actions or by his failure to act either

25    explicitly or implicitly, instigated the perpetrators of the crimes listed

Page 26959

 1    in those counts of the indictment to actually commit those crimes.

 2            The Defence believes that the Prosecution did not prove that

 3    Valentin Coric did in any way instigate the commission of the crimes

 4    listed in the above-referenced counts of the indictment.

 5            In its judgement in the Kordic case, the Trial Chamber considered

 6    that there has to be a causal relationship established between the act of

 7    incitement and the physical commission of the crime.

 8            In the Kvocka case, the Trial Chamber also found that the causal

 9    relationship must be established for the act of instigation, noting that

10    the actus reus required for the instigation to the commission of the crime

11    is any conduct on the part of the accused that instigates another person

12    to act in a particular manner.  This requirement has been met if it can be

13    proven that the conduct of the accused was a factor that clearly

14    contributed to the conduct or acts of other person or persons.

15            In the Blaskic case the Trial Chamber noted that the valid

16    definition of instigation or of provoking somebody to do something

17    confirms the view under which it is necessary to prove that there is a

18    cause and effect relationship between the instigation and the actual

19    perpetration of the objective elements of the allegations of the crime.

20            The Defence believes that the Prosecution has failed to adduce any

21    evidence to prove that Valentin Coric instigated the commission of crimes

22    listed in the above-referenced counts of the indictment, and it is

23    therefore immaterial to discuss the cause and effect relationship between

24    the instigation and the actual commission of the crime.  Out of an

25    abundance of caution, the Defence would like to note that the Prosecution

Page 26960

 1    has failed to prove the existence of such a causal relationship.

 2            In -- in the Kordic and Cerkez case, the Trial Chamber noted that

 3    it must be proven that the accused had a direct intent to commit a crime.

 4    In the Naletilic-Martinovic case the Trial Chamber indicated that the

 5    required mens rea is that the accused intended to cause or to lead

 6    somebody to the commission of the crime or was aware that there was a

 7    substantial possibility that the possible consequence of his acts would be

 8    the commission of the crime.

 9            The Defence considers that with regard to this mode of

10    responsibility, the Prosecution has failed to adduce any evidence to prove

11    the existence of any direct or indirect intent on the part of Valentin

12    Coric to actually commit those crimes.

13            As for the existence of the responsibility on the basis of the

14    participation of the accused by ordering the Prosecution was supposed to

15    prove that the accused had a criminal intent when he issued orders.  The

16    Prosecution has failed to adduce any evidence to prove that Valentin Coric

17    was authorised to issue orders to the perpetrators of the crimes that are

18    listed in the above-referenced counts of the indictment.  The Prosecution

19    has failed to prove that Valentin Coric issued any orders to the

20    perpetrators in writing or in any other form explicitly or implicitly, and

21    thus the criminal intent on the part accused has not been proven.

22            As far as aiding and abetting is concerned, the Defence claims

23    that the Prosecution has failed to prove that Valentin Coric aided or

24    abetted the commission of those crimes.  It has also failed to prove that

25    Valentin Coric provided any kind of practical assistance, encouragement,

Page 26961

 1    or moral support that would have a substantial effect on the commission of

 2    these crimes.

 3            The position that assistance or aiding must have a substantial

 4    effect on the commission of the crimes was taken by the Trial Chamber in

 5    the Furundzija case.

 6            In the following part of our presentation, we would like to stress

 7    primarily that the Prosecution has failed to prove the existence of the

 8    joint criminal enterprise as it has been described in the indictment.  But

 9    because the Defence does not have that much time, the Defence will prove

10    that even if the alleged joint criminal enterprise did exist, the

11    Prosecution has failed to prove the responsibility of Valentin Coric under

12    Article 7(1), joint criminal enterprise, the first and third modes.

13            The Defence contests the responsibility of Valentin Coric under

14    Article 7(1), the second mode of the joint criminal enterprise, but

15    believes that because of the nature of the Rule 98 bis proceedings and

16    because of the nature of the charges levied in those counts, it doesn't

17    make any sense for it to present its arguments on this mode of the

18    responsibility at this stage of the proceedings.  This will be done during

19    the Defence case if the accused is not acquitted under Rule 98 bis.

20            In its analysis, the Defence will limit itself to responsibility

21    as described in the following counts of the indictment.  I'm just going to

22    mention the numbers because earlier on I stipulated the entire counts, so

23    there's no need to go into that again to save time.

24            JUDGE ANTONETTI: [Interpretation] There's a question on the part

25    of one of the Judges.

Page 26962

 1            JUDGE MINDUA: [Interpretation] I'm sorry, Ms. Tomasegovic Tomic.

 2    I'm following your demonstration very carefully.  You mentioned mens rea.

 3    I must say that I am theoretically speaking satisfied with your

 4    demonstration, but I haven't quite understood what you meant by

 5    responsibility under 7(3) of the Statute of the Tribunal.  What did you

 6    say?  You did not address this.  You said you would only address this in

 7    the event that the accused would be acquitted under Article 7(1).  Am I

 8    right in saying that?

 9            MS. TOMASEGOVIC TOMIC: [Interpretation] No, I didn't say that,

10    Your Honour.  We didn't understand each other.  The accused in the

11    indictment is being held responsible for three types or three modes of

12    joint criminal enterprise, the first, second, and third modes, and I said

13    that I'm not going to deal with mode number two because I consider that at

14    this point in time in view of the counts of the indictment that I'm

15    challenging is not necessary.

16            Now, the Trial Chamber will be able to assess whether I am right

17    or not, but that is my position.  So I hadn't arrived at 7(3) yet.  I

18    haven't come to that, yet.  I'm still dealing with 7(1).

19            JUDGE MINDUA: [Interpretation] Thank you very much.

20            MS. TOMASEGOVIC TOMIC: [Interpretation] Thank you, Your Honour.

21            As I was saying, in my analysis the Defence will limit itself to

22    responsibility for acts described in the following counts of the

23    indictment:  Count 5, 19, 20, 21, 24, 25, and 26.

24            Let me mention once again that I'm not going to deal with

25    analysing this type of responsibility for Valentin Coric for counts 4 of

Page 26963

 1    the indictment, because that is a subject that has already been dealt

 2    with.

 3            In the paragraphs of the indictment 17.5, from (a) to (l) is a

 4    description of Valentin Coric's part in the alleged joint criminal

 5    enterprise.

 6            In the pre-trial brief, the Prosecution, in expounding on the role

 7    of Valentin Coric in the alleged joint criminal enterprise and in its

 8    attempt to support its claims from paragraph 17.5 of the indictment refers

 9    to two documents, who during the proceedings were admitted into evidence

10    and are now exhibits.  They are P 00277 and P 04922.

11            The Defence considers that the mentioned exhibits prove nothing

12    more than the fact that Valentin Coric was the chief of the military

13    police administration of the HVO and that in one of these documents he

14    gives instructions for the way in which reporting should be done within

15    the military police, and in the other one he gave instructions on the

16    structure and functioning of the brigade military police.

17            Neither of these two documents proves either the existence of a

18    joint criminal enterprise or the participation of Valentin Coric in some

19    kind of joint criminal enterprise, or any links between Valentin Coric and

20    the crimes stipulated in the indictment, or any kind of unlawful act on

21    the part of Valentin Coric, or any kind of criminal intent and nonchalance

22    of Valentin Coric and negligence of Valentin Coric in relation to the

23    crimes described in the indictment.

24            In paragraph 11 of the indictment, the Prosecution mentions that

25    Valentin Coric joined the HDZ of BH.  The Prosecutor, during the

Page 26964

 1    proceedings, has not adduced a single shred of evidence to prove that

 2    Valentin Coric joined the HDZ in BH or that he was a member of that

 3    political party at the time relevant -- relevant time mentioned in the

 4    indictment.

 5            The Prosecutor failed to show that Valentin Coric knew of the

 6    alleged joint plan or goal, nor that he knew that criminal acts were being

 7    committed with the aim of putting that plan into effect.

 8            The Defence primarily wishes to emphasise that the circumstance by

 9    which a person performed a certain function or belonged to a certain

10    organisation or group in itself cannot imply responsibility based on

11    Article 7(1) of the Statute in the position taken by the Defence.

12    Otherwise, this would represent responsibility for association, which is

13    not contained in the Statute, neither explicitly or implicitly.

14            By decision of the Supreme Court of the United States dating back

15    to 1962, from the case Robinson versus California, an inviolable standard

16    was established according to which the status of a given person cannot be

17    grounds for that person's liability and punishment.

18            Whether basic -- the basic mode of joint criminal enterprise, in

19    order to establish Valentin Coric's guilt the Prosecution should have

20    first shown intent to commit an act which Valentin Coric shares with the

21    other members of the alleged joint criminal enterprise.

22            Apart from the fact that the Prosecution had to prove joint intent

23    among the various participants of an alleged joint criminal enterprise, it

24    has to show joint intentions on the part of Valentin Coric and others who

25    directly committed one of the crimes enumerated in the counts contained in

Page 26965

 1    the indictment.

 2            The Defence maintains that the Prosecution did not provide a shred

 3    of evidence to prove that it was Valentin Coric's intention to commit the

 4    crimes listed in the indictment in its various counts.

 5            The Defence maintains that an identification of the perpetrators

 6    of crimes is the condition sine qua non for proving the existence of a

 7    joint criminal enterprise.  The Defence furthermore maintains that the

 8    Prosecution in this trial, in these proceedings, and for the acts that I

 9    have enumerated, has failed to identify the perpetrators of those criminal

10    acts or did not identify them sufficiently in order to establish a

11    possible connection between the perpetrators and Valentin Coric himself.

12    The Defence maintains that for an identification of the perpetrators, it

13    is not sufficient to state that they were persons wearing uniforms or

14    Croat civilians or even to say that they were members of the HVO without

15    precisely stating the units to which these persons belonged.

16            The Defence therefore considers that the Prosecution has failed to

17    prove who the direct perpetrators of the criminal acts were.

18            If the Trial Chamber decides that in certain cases a perpetrator

19    has been sufficiently identified, then the Defence maintains that in that

20    case the Prosecution has not provided a shred of evidence to show the link

21    between Valentin Coric -- to link Valentin Coric in with any of the

22    perpetrators.

23            The Appeals Chamber in the Brdjanin trial also notes that the

24    Prosecutor must prove the fact that an accused shared a common goal and

25    that the act that is being discussed represents part of a joint criminal

Page 26966

 1    act and goal.

 2            The Defence maintains that the Prosecution has not produced a

 3    shred of evidence to prove that the accused Valentin Coric shared a common

 4    goal linked to the counts in the indictment that I enumerated previously.

 5            For an extended mode of joint criminal enterprise, the perpetrator

 6    must act with the aim of complicity and co-perpetration in the joint

 7    criminal enterprise of a group and actively contribute to the joint

 8    criminal enterprise or the commission of acts by that group.

 9            The Defence maintains that the Prosecution has not produced a

10    single piece of evidence which would prove Valentin Coric's intent to take

11    part in the alleged joint plan nor that he actively contributed to the

12    alleged plan or the commission of the previously enumerated crimes.

13            With an extended joint criminal enterprise, the accused has

14    responsibility for crimes that go beyond the frameworks of a joint

15    criminal enterprise, and if according to the circumstances of the case it

16    was foreseeable that any member of the group would commit such a crime and

17    that he accepted the risk consciously.

18            When we're talking about consciousness and risk, then we must bear

19    in mind the position of the Appeals Chamber held in the Blaskic trial,

20    according to which consciousness of any risk involved, regardless of how

21    low, is not sufficient to proclaim criminal responsibility for serious

22    violations of international humanitarian law.

23            In conformity with this position, the Defence maintains that in

24    the case of an extended joint criminal enterprise, in order to establish

25    guilt on the part of Valentin Coric the Prosecution would have had to have

Page 26967

 1    shown that Valentin Coric entered into a joint criminal enterprise in

 2    order to commit a different crime with the awareness and consciousness

 3    that its perpetration would be reasonably foreseeable and that other

 4    participants in the joint criminal enterprise commit the crimes he's being

 5    charged on.  Not even according to 98 bis criteria has the Prosecution in

 6    the Defence's position managed to prove that.

 7            In conclusion, the Defence wishes to state the following:  The

 8    Prosecutor failed to provide a shred of evidence which would indicate that

 9    Valentin Coric, either in oral form or written form or any other way, was

10    linked to the perpetration of these criminal acts.  There is not a single

11    shred of evidence in any of the documents which would show that Valentin

12    Coric knew of any unlawful criminal goal and that he acted consciously

13    with the aim of furthering and achieving such a goal.

14            Your Honours, I'm now going to move on to another area.  I see

15    that we're almost up to the break, so perhaps it would be a good idea if

16    we could take the break now so that I can go on to my next area without

17    interruption.

18            JUDGE ANTONETTI: [Interpretation] We shall now have a 20-minute

19    break.

20                          --- Recess taken at 5.18 p.m.

21                          --- On resuming at 5.40 p.m.

22            JUDGE ANTONETTI: [Interpretation] I give the floor to the Defence.

23            MS. TOMASEGOVIC TOMIC: [Interpretation] The Defence of Valentin

24    Coric in this part of its submission would like to deal with Valentin

25    Coric's responsibility pursuant to Article 7(3).

Page 26968

 1            I do apologise, but I think that the President's microphone is on

 2    again and it's causing a problem.  Thank you, Your Honours.

 3            JUDGE ANTONETTI: [Interpretation] I'm sorry.  I've done it again.

 4            MS. TOMASEGOVIC TOMIC: [Interpretation] The Defence of Valentin

 5    Coric in this part its submission would like to deal with Valentin Coric's

 6    responsibility pursuant to Article 7(3) for acts described in the

 7    following counts of the indictment:  Count 5, count 19, count 20, count

 8    21, 24, 25, and 26.

 9            In this section the Defence will not deal with an analysis of

10    command responsibility of Valentin Coric for acts under count 4 of the

11    indictment because it has already dealt with that topic.

12            The Defence maintains that the Prosecution has not managed to

13    prove Valentin Coric's responsibility in the sense of Article 7(3) for the

14    counts in the indictment, not even in the extent which would meet the

15    criteria of the proceedings pursuant to Rule 98 bis.

16            In Article 7(3) of the Statute, it says that a superior is not

17    relieved of criminal responsibility for acts committed by a subordinate if

18    he knew or had reason to know that the subordinate was about to commit

19    such acts or had done so and the superior failed to take the necessary and

20    reasonable measures to prevent such acts or to punish the perpetrators

21    thereof.

22            From this it clearly follows that the Prosecutor had the number

23    one duty of proving that the acts described in the counts of the

24    indictment were perpetrated by individuals who were subordinate to

25    Valentin Coric.

Page 26969

 1            In the case law of this Tribunal, the position has been taken that

 2    the relationship of subordination exists when a superior exercises

 3    effective control over his subordinates or, rather, when he has the real

 4    possibility of preventing such acts or punishing the perpetrators thereof.

 5            We can read that, for instance, in paragraph 77 of the first

 6    instance judgement in the case against Hadzihasanovic and Kubura.  And the

 7    same can be seen in the first instance judgement in the Celebici trial,

 8    paragraphs 377 and 378.  And the judgement of the second instance in the

 9    same trial, paragraphs 197 and 256.  And the second instance judgement in

10    the Blaskic case in paragraph 67.

11            In the first instance judgement in the Hadzihasanovic and Kubura

12    case, paragraph 78, the Trial Chamber held that an official position of a

13    commander is neither sufficient nor necessary for him to be held

14    responsible for command responsibility.  In that same judgement, in

15    paragraph 90, the Trial Chamber stipulates the following:  In order to be

16    able to establish a basis for subordination, the Trial Chamber considers

17    it sufficient that exact stipulation be made of the groups to which the

18    perpetrators of a crime belonged and that that group was under the

19    effective control of the accused.

20            The Defence of Valentin Coric considers that the Prosecutor in

21    this trial, as far as the counts in the indictment mentioned are

22    concerned, has not managed to prove who the perpetrators of those criminal

23    acts were in the sense of the group to which they belong.  From the

24    evidence that was adduced by the Prosecution, it emerges that the act was

25    either committed by members of the HVO without defining the units in

Page 26970

 1    question, or unknown perpetrators very often wearing civilian clothes, the

 2    members of groups described as gangs and the like.

 3            The Defence would especially like to emphasise that in order to

 4    have a relationship of subordination established, the perpetrators of any

 5    crime under these counts in the indictment with respect to and in relation

 6    to Valentin Coric, the -- the Prosecutor must show that the perpetrators

 7    of the crime were members of the military police and of set definite units

 8    of the military police, as well as the fact that when the crime was

 9    committed Valentin Coric exercised effective control over those persons.

10            The Defence emphasises that the Prosecution has not proved either

11    on the basis of 92 bis [as interpreted] criteria that the perpetrators of

12    the above crimes described in the counts of the indictment mentioned

13    earlier on were individuals who were subordinated to Valentin Coric, nor

14    that Valentin Coric himself had effective control over them.

15            I can see that it says 92 bis in the transcript.  I said 98 bis.

16            Although the Defence considers that in view of the fact that the

17    Prosecution has not proved that Valentin Coric exercised effective control

18    over the perpetrators of acts described in the counts of the indictment

19    that we are addressing now and therefore considers that there are no

20    grounds for a further analysis of his responsibility in the sense of

21    Article 7(3) of the Statute, out of an abundance of caution the Defence

22    would nonetheless like to state the following:  Mens rea which is required

23    by Article 7(3) of the Statute is determined when the superior knew or had

24    reason to know that a subordinate or subordinates were about to commit

25    such acts or had done so, as was stated in paragraph 91 of the first

Page 26971

 1    instance judgement in the Hadzihasanovic-Kubura trial.

 2            The Prosecution in this case had to prove that Valentin Coric

 3    actually did know that his subordinates committed crimes listed in the

 4    aforementioned counts of the indictment, or that they were about to commit

 5    them, or alternatively that he had in his possession information that

 6    might have warned him about the risk that such crimes would be committed,

 7    because they indicated that additional information was to be sought in

 8    order to determine whether his subordinates did commit such crimes or were

 9    about to commit them.

10            In this case, the Prosecution has not led a single piece of

11    evidence to prove that Valentin Coric took part at any meetings where a

12    discussion was held about whether the crimes listed in the aforementioned

13    counts of the indictment were actually committed or that those crimes are

14    being planned, meetings where any combat operations or objectives of such

15    combat operations were discussed or meetings where the role of his

16    subordinates in such operations was defined.

17            The Prosecution has failed to prove that Valentin Coric received

18    any reports that would show that his subordinates had committed crimes

19    listed in those counts of the indictment previously or any similar crimes.

20    The Prosecution has failed to prove that Valentin Coric issued any orders

21    for action in which such acts or crimes might be committed.

22            The Defence would, in particular, like to note the finding of the

23    Appeals Chamber in the Celebici case, paragraph 226, where the Appeals

24    Chamber notes that the fact that a superior failed to obtain information

25    about the acts of his subordinates does not necessarily mean that he is

Page 26972

 1    criminally responsible, because the issue of his criminal responsibility

 2    may be raised only if he failed to take necessary and reasonable measures

 3    to punish or prevent them.

 4            In the Blaskic case, the Appeals Chamber found that a superior may

 5    be held responsible for deliberate effort to -- not to obtain information

 6    but not for negligence in this respect.

 7            The Defence would like to draw the attention of the Trial Chamber

 8    to Exhibit P 01350, an exhibit that has already been mentioned, and to

 9    reiterate the arguments that have already been presented regarding this

10    exhibit to avoid unnecessary repetition.

11            With regard to the crimes listed in those counts of the

12    indictment, the Prosecution was supposed to prove that Valentin Coric had

13    the real ability to act in the sense of his duty to prevent the commission

14    of crimes and to punish the perpetrators.

15            The Defence, however, believes that the Prosecution has failed to

16    prove that Valentin Coric did not take measures that were within his

17    sphere of capability.

18            We've already spoken about the effective control, and we stated

19    that the Prosecution has -- had failed to prove that Valentin Coric had

20    exercised effective control over the perpetrators.  As our presentation

21    continues, we will now deal with the issue whether Valentin Coric was

22    duty-bound, in spite of the above, to punish the perpetrators of crimes

23    regardless of their affiliation to a certain group.

24            In paragraph 12 of the indictment, the Prosecution alleges that

25    one of the duties of the military police is to conduct investigations of

Page 26973

 1    crimes committed by the armed forces of Herceg-Bosna.  It is the position

 2    of the Prosecution that failure to perform this duty implies that Valentin

 3    Coric was responsible.

 4            Valentin Coric's Defence considers that the burden of proof is on

 5    the Prosecution.  The Prosecution was supposed to prove that Valentin

 6    Coric failed to prosecute the perpetrators of crimes and that he is

 7    responsible because the military police failed to do so.

 8            In the course of its case, the Prosecution was supposed to prove

 9    beyond reasonable doubt what powers the military police and indeed

10    Valentin Coric as its chief had for -- in terms of the criminal

11    prosecution of those who committed crimes.

12            The Prosecution, we contend, had to show and had to prove through

13    documents and the testimony of its legal expert, or at least the factual

14    witness who also had appropriate legal knowledge and who at the times

15    relevant for the indictment held the post in the judiciary or police, what

16    legal acts, what legislation was in force in the time and space relevant

17    for the indictment in the area of criminal law, how this legislation was

18    implemented, and, in particular, what were the duties of the HVO military

19    police under those regulations.

20            The Prosecution has failed to do so.  What it did was to tender

21    two exhibits, P 00592 and P 00293.  Both exhibits were shown to expert

22    witness William Tomljanovich.  These exhibits and the evidence provided by

23    this witness show that the investigation of crimes, sanctioning of

24    military personnel who perpetrated those crimes, and disciplinary

25    procedures against military persons are not in the exclusive jurisdiction

Page 26974

 1    of the military police.  Witness William Tomljanovich spoke about that at

 2    pages 6362, 6363, 6364, 6369, and 6370 of the transcript.

 3            Exhibit number P 00128 and the testimony of Witness Marijan Biskic

 4    recorded at page 15269 of the transcript, 15269, and Exhibit P 04699, and

 5    the testimony of witness Marijan Biskic at page 15270 and 15271 prove that

 6    filing of criminal reports and the investigation of crimes committed by

 7    military personnel or persons wearing uniforms were not in the exclusive

 8    jurisdiction of the military police.

 9            In this context, we would also like to draw your attention to the

10    evidence of Prosecution witness C on 19 -- 19th of September, 2007, at

11    page 22559 of the transcript, where the witness says that a mosque is a

12    civilian building and that this is why any investigations about the

13    destruction of such a building are in the jurisdiction of the Ministry of

14    the Interior, the MUP, and that the military police may be involved in

15    such an investigation only if the civilian police notifies the military

16    police that the perpetrators are military personnel.

17            Analysing the evidence of this witness, one can conclude that the

18    military police is not duty-bound to participate in any way in the

19    investigations of crimes against property that must be considered civilian

20    property, except when the civilian police, in investigating such crimes,

21    learns that the crime was actually committed by military personnel and

22    notifies the military police accordingly.

23            The Defence believes that the above shows that the Prosecution has

24    failed to prove that the crimes described in the aforementioned counts of

25    the indictment are in the jurisdiction of the military police and has

Page 26975

 1    failed to prove what the duties of the military police are, if indeed

 2    there are any.  And this is a prerequisite for any debate about whether

 3    the military police, and consequently Valentin Coric, did commit such

 4    omissions in its work that would entail criminal responsibility.

 5            Throughout its case, the Prosecution has been arguing that the

 6    competent institutions within the HVO failed to punish the perpetrators of

 7    crimes against Muslims.  The Prosecution had to prove that the accused

 8    Valentin Coric, through the military police or personally, failed to take

 9    measures to punish the perpetrators of such crimes, yet the Prosecution

10    has failed to adduce a single piece of relevant evidence that would

11    actually have any probative value.  There were Prosecution witnesses who

12    spoke about the fact that nothing had been done, but in very general

13    terms.  However, none of those witnesses had any specific knowledge of the

14    measures that had actually been taken, and to a man had not had sufficient

15    qualifications or expertise to be able to testify credibly about that.

16    Their claims that nothing had been done were based only on their

17    knowledge, secondhand knowledge, third-hand knowledge, that crimes

18    continued to be committed.

19            The Defence contends that this kind of evidence is not something

20    that the Trial Chamber should be satisfied with.  This kind of evidence is

21    not based on facts.  It is based on the witness's own assessments and

22    opinions, and they do not meet the criteria of their similitude or

23    real-life logic.

24            This kind of evidence could be given some little weight if it were

25    to be corroborated by at least a single document describing a specific

Page 26976

 1    fact or any kind of valid expert knowledge.  Failing that, the Defence

 2    contends it has absolutely no probative value.

 3            On the other hand, among the exhibits admitted in this trial,

 4    there are those that show that the opposite is true, opposite to what the

 5    Prosecution is alleging.  Thus, for instance, Exhibit P 00950 proves that

 6    by the 28th of December, 1992, the military police had already filed over

 7    1.000 criminal reports, but no further action was taken because the

 8    military police courts were not operating properly.

 9            Prosecution witness Marijan Biskic, at page 15278 of the

10    transcript, states that the military police did file criminal reports but

11    that the military courts did not act promptly.

12            Exhibit P 01016 shows how many of the cases were actually dealt

13    with at the investigative division of the military court in Travnik in

14    1993 and 1994.  In order for the Prosecutor to show that the opposite was

15    the case, in other words to prove that no proceedings were conducted, no

16    prosecutions were carried out, the Prosecutor should have presented to the

17    Court the registers of all the military and regular courts and the

18    military prosecutors' offices.  Had the Prosecutor called a competent

19    witness at least, a witness who would be able to testify reliably and

20    professionally or expertly about those documents, the Defence would have

21    been in a position during the Prosecution case to show those documents to

22    the Prosecution witnesses.  The Prosecution, unfortunately, did not do

23    anything of the kind, resorting to drawing conclusions without any

24    evidence to corroborate them, insisting on this argument without any

25    evidence.

Page 26977

 1            If the Trial Chamber were to accept the Prosecution's argument

 2    that the crimes were not prosecuted on the basis of this kind of faulty

 3    evidence, almost no evidence at all that was called by the Prosecution,

 4    that would mean that the burden of proof was now on the Defence, and this

 5    is completely unacceptable.

 6            Valentin Coric's Defence considers that the Prosecution has failed

 7    to prove that the accused failed to punish persons who committed crimes

 8    and that any other conclusion would be erroneous and would unjustifiably

 9    transfer the burden of proof from the Prosecution to the Defence, which

10    would then be in a position to have to prove the opposite in the course of

11    the Defence case.

12            Now I'd like to move on to my conclusion, the concluding part of

13    my submission.

14            Conscious of the fact that the topic that I'm going to deal with

15    at the end of my presentation is perhaps not commensurate and appropriate

16    with respect to Rule 98 bis procedure, I nonetheless consider it

17    necessary, briefly, to present a few of my thoughts.

18            I believe that the Trial Chamber and everybody else in the

19    courtroom will agree with me when I say that the Defence of Valentin Coric

20    never throughout these proceedings -- did not prolong the work of the

21    Court without -- unnecessarily prolong the work of the Court, and that

22    whenever it addressed the Court it always endeavoured to be efficacious

23    and to have regard for the time.  That is why I ask the Trial Chamber to

24    listen to my arguments.  They won't be long, and they won't overstep the

25    time allotted to our Defence team for our submission.

Page 26978

 1            Studying case law and presentations so far pursuant to Rule 98

 2    bis, I did not come across a single presentation or a single decision

 3    which would incorporate the question of cumulative indictments or

 4    cumulative charges.  It is quite clear to me that an answer to that

 5    question can be sought in the fact that case law and jurisprudence has

 6    taken the stand that cumulative indictments are allowed and that

 7    cumulative findings can be discussed only once a judgement has been made.

 8            I, however, consider that if no decision has been made thus far

 9    about that, that does not necessarily mean that argumentation on the

10    subject at this stage of the proceedings is unreasonable or unfounded.

11            This stage of the proceedings that we find ourselves in now

12    relates to the fundamental role of the Tribunal in seriously analysing

13    proceedings thus far, and procedure, with the aim of contributing to

14    judicial economy and to enable the Defence to avoid adducing evidence that

15    is superfluous in the Defence case.

16            From the very beginning of the trial and especially after the

17    Prosecution case it is up to the Defence to tackle many allegations made

18    in the indictment and to address them.  In most cases before this

19    Tribunal, the final decision as a rule -- in the final decision, as a

20    rule, the accused has been liberated of a number of counts -- has been

21    acquitted of a number of counts.  Either the Prosecution has given up on

22    the charges in the indictment or according to 98 bis procedure.  So if

23    such a decision is made on time, it accelerates the proceedings and

24    reduces the duration of the trial.

25            Valentin Coric's Defence believes that it is up to the Trial

Page 26979

 1    Chamber to drop all charges which only lead to the fact that this trial

 2    can be too long.

 3            In conformity with Article 20 of the Statute, the Trial Chamber

 4    must ensure a speedy trial, an expeditious trial.  Article 21 of the

 5    Statute states that it is an accused's right to be tried without undue

 6    delay.

 7            In the International Charter on Civil and Political Rights where

 8    that right is enforced, in Article 14(3)(c), the right to be tried within

 9    a reasonable space of time appears in Article 9(3).  I said Article 14,

10    previously, Article 14(3)(c).

11            The difference may not be of too great an importance.  However, it

12    is noteworthy to stress that the principle of the right to a trial without

13    undue delay is guided in essence to the length of the pre-trial phase, the

14    trial itself, and the period between the end of trial and the publishing

15    of a decision.

16            Now, what is reasonable time?  That will depend on the nature of

17    the proceedings themselves and the charges made.

18            The Appeals Chamber in Mugiraneza  -- in the Migiraneza trial

19    before the International Court for Rwanda stipulates five factors which

20    must be taken into consideration in determining whether the right to a

21    trial without undue delay has been violated, and the complexity of the

22    proceedings and the number of charges is taken into account in that

23    regard.

24            In the Kvocka et al. trial, a decision on an interlocutory appeal

25    of the accused Zigic to the decision of the Trial Chamber of the 5th of

Page 26980

 1    December, 2000, and the 25th of May, 2001.  The Appeals Chamber took the

 2    decision and states that it is the primary duty of the Tribunal to ensure

 3    that the accused is given a just, a fair, and expeditious trial.  It also

 4    added that the right to a speedy and expeditious trial is a component part

 5    of the right to a fair trial and that the accused cannot relinquish that

 6    right.

 7            In our case, in the decision on preliminary submissions by the

 8    Defence, in paragraph 74 it says as follows:  "We must stress that the

 9    right of the Tribunal consistently holds that the Prosecution can stress

10    cumulative charges in the indictment if each of the charges is supported

11    by relative material facts."

12            The Trial Chamber is satisfied with the fact that the

13    indictment -- I said relevant, of course, not relative in the previous

14    sentence.

15            The Trial Chamber is satisfied that the indictment represents the

16    material facts in the proper way which relate to the crimes and the

17    responsibilities in the charges and that cumulative charges can be

18    distributed when all the evidence has been adduced.

19            The Defence considers that at this stage of the proceedings the

20    Prosecutor has already presented its evidence and that stage has been

21    completed.  The Prosecution case is over.

22            The crimes according to the jurisdiction of the Tribunal emanate

23    from different sources, customary ones and prescribed ones.  And when they

24    were defined at the beginning, when they were first defined, it was not

25    the intention for them to be part of an all-embracing code of serious

Page 26981

 1    violations of international humanitarian law.  As a result of that we have

 2    intermingling, overlapping, and a criminal act can, at the same time, come

 3    under the definition of crime against humanity and war crimes.

 4            The Prosecutor opted for an exhaustive approach to the indictment,

 5    so when several crimes can be linked to an individual act, many of them or

 6    all of them are -- is something that the accused is charged of.  The ICTR

 7    in the Appeals Chamber in the Musema trial confirms the reasons of having

 8    a correct attitude towards the accused and taking into account that only a

 9    specifically determined crime can justify multiple charges.

10            The Appeals Chamber in the Delalic case states the following:

11            THE INTERPRETER:  Interpreter's correction, multiple convictions.

12            MS. TOMASEGOVIC TOMIC: [Interpretation] "Taking into account the

13    differences in approach with respect to this question and within this

14    Tribunal and in other jurisdictions this Appeals Chamber holds that the

15    reasons of correct conduct towards an accused, and taking into account the

16    fact that only separately defined crimes can lead to multiple convictions

17    leads us to the conclusion that multiple criminal counts under the various

18    statutory rules but based on the same proceedings and acts are allowed

19    only if each of the statutory provisions includes a material element,

20    differentiatory element, which is not contained in any other."

21            It is understood that the elements are truly different.  Only if

22    they call for proving the fact that is not contained in any other

23    violation.

24            In an articulation of this approach, the Tribunal relies on

25    block -- the Blockburger decision of the Supreme Court of the United

Page 26982

 1    States.  Blockburger.

 2            Where no such test exists, the Trial Chamber must decide with

 3    respect to which crime it's going to apply its judgement.  This must be

 4    done on the basis of the principle that the conviction on the basis of a

 5    more specific rule must be supported.  So if a set of facts is regulated

 6    by two provisions, then the one that contains the material differentiating

 7    element must be the one upon which a decision and ruling will be based.

 8            Pursuant to the Statute of this Tribunal an accused can stand

 9    accused of serious violations of the Geneva Conventions, deprivation of

10    life, wilful killing, and war crimes.

11            The Appeals Chamber in the Delalic trial stressed that conviction

12    on both counts is not appropriate, not allowed, pursuant to the rules of

13    cumulative convictions, stating that in cases of that kind, the accused

14    can be proclaimed guilty for wilful killing because that is a more

15    specific rule.

16            In several cases before this Tribunal the Appeals Chamber held --

17    or Appeals Chambers held that if an accused has been convicted of murder

18    as a crime against humanity, he or she cannot be proclaimed guilty for

19    persecution.  For example, in the Vasiljevic, Krstic case.  It was also

20    decided that cumulative charges for persecution or convictions for

21    persecution and other inhumane conduct are not allowed because they are

22    crimes of persecution in the form of inhuman acts subsuming the crimes

23    against humanity and inhumane conduct, inhumane treatment.

24            Furthermore, it has been established that the principle of both

25    legal systems, that is to say civil and common law, that the sentence

Page 26983

 1    cannot be for a greater or smaller delict that subsumes them, and we rely

 2    on lex consumes derogat legi consumptae.

 3            The logical grounds for this is that a more serious crime cannot

 4    be subsumed without the simultaneous commission of a lesser crime.  In our

 5    indictment, Valentin Coric's Defence contends there are cumulative charges

 6    such as count 2 and count 3, then count 14 and count 13, count 16 and

 7    count 17, and count 19 and count 20.

 8            I will not now embark on a comparative analysis of the counts in

 9    the indictment because I don't think that it is necessary, and I don't

10    think that the Trial Chamber needs any assistance of that kind.  I believe

11    that it is possible at this stage of the proceedings to conclude that for

12    some of those, in light of the jurisprudence mentioned above, the Trial

13    Chamber will not be able to convict the accused when the time comes to

14    make the final decision.  I also believe that for the sake of economy and

15    efficiency, and in order to speed up the proceedings as I have already

16    indicated, it would be practical to rule on this in this way, to make this

17    kind of a decision at this stage of the proceedings.

18            Finally, the Defence believes that the reasons of fairness and

19    economy and the principle that only different crimes may result in

20    multiple convictions, and this has unambiguously been recognised in the

21    jurisprudence of this Tribunal, militate in favour of the request of this

22    Defence to drop at this stage of the proceedings one of the cumulative

23    charges listed in the indictment and mentioned above.

24            I will conclude this part of my presentation by quoting from the

25    separate opinion of Judge Yakov Ostrovsky and that -- the date is the 17th

Page 26984

 1    of March, 1998.  That's at paragraph -- paragraph 9 in the Bagosora case.

 2    The Judge said:  "Justice delayed is justice denied."

 3            At the end of my presentation, I would like to say the following:

 4    On the basis of everything that has been presented so far, the Defence of

 5    Valentin Coric contends that the Prosecution has failed to prove that

 6    Valentin Coric is responsible under any mode of responsibility alleged in

 7    the indictment for any of the crimes he is charged with in the indictment

 8    issued in this case, and consequently the Defence moves that Valentin

 9    Coric be acquitted on all 26 counts of the indictment.

10            Valentin Coric's Defence hereby concludes its oral arguments on

11    the Rule 98 bis.  Thank you very much.

12            JUDGE ANTONETTI: [Interpretation] I would like Defence counsel to

13    specify what is about to follow.  As far as cumulative charging and

14    cumulative convictions are concerned, you seem to be asking the Chamber

15    that it state in its 98 bis ruling that some of the offences that have

16    been qualified under assassination or wilful killing be considered by the

17    Chamber to be cumulative, and therefore the Trial Chamber should only take

18    into account the most serious offence.

19            Let me give you an example because I'm not sure I quite understood

20    what you were saying.  This is very difficult what you submitted.  Let me

21    give you an example.

22            For instance, murder which is a crime against humanity, and wilful

23    killing which is a grave breach of the Geneva Conventions, you seem to be

24    saying that the Trial Chamber should in that case only consider the crime

25    against humanity and not take into account a serious violation of the

Page 26985

 1    Geneva Convention.

 2            I'm not sure I have fully understood your submissions.  You

 3    focussed this -- your attention on the fact that the trial should be

 4    expeditious and that there were 26 counts which pertained to tens or

 5    thousands of different situations, and therefore the Trial Chamber should

 6    play its part, and by way of introduction you mentioned Rule 73 bis, which

 7    enabled you to cut down on the number of counts.

 8            As you know, all the Chambers have referred to Rule 73 bis.  The

 9    only Chamber that has not referred to it is this Chamber, because our

10    trial had started before this rule was adopted on the 17th of July, 2003,

11    and that as far as possibility it allowed, in other words, for the

12    Prosecution to, in Article -- in Rule 50 of the Rules of Procedure and

13    Evidence to amend an indictment when it is permitted by the Chamber, but

14    when I questioned the Prosecutor on this particular point, the Prosecutor

15    told us that there was no question as far as he was concerned to amend

16    anything whatsoever.

17            That said, is this the way forward which you would like the Trial

18    Chamber to go towards?  In other words, you would like in its decision to

19    state that some counts are duplicated and, therefore, you would like the

20    Trial Chamber to only consider some counts and to state that the other

21    counts should be dismissed.  Is that what you have just told us?

22            Maybe I have summarised rather hastily your submissions, but this

23    is what I understood, and I have listened to what you were saying very

24    carefully, and every time you take the floor I listen to you carefully,

25    and I would like to understand whether that is really what you are

Page 26986

 1    requesting the Chamber to do.

 2            MS. TOMASEGOVIC TOMIC: [Interpretation] I would first of all like

 3    to say, Your Honour, that -- well, perhaps this has been wrongly recorded

 4    in the transcript.  I did not invoke Rule 73 bis.  I was talking about

 5    paragraph 74 in the decision in this case, the decision on the preliminary

 6    motions filed by the Defence.  However, what I tried to say, and let me

 7    now rephrase it, let me summarise it, it is quite clear to me and this is

 8    what I said right at the beginning, that cumulative charges as such are

 9    allowed.  And it is quite clear to me that in the Rule 98 bis proceedings

10    this has not been addressed yet.  But I just wanted to say that in light

11    of the number of cumulative charges and the Defence case that is ahead of

12    us as the stage in the trial, I wanted to propose to the Trial Chamber to

13    consider whether it would be practicable to rule at this stage of the

14    proceedings to see whether it would be possible and indeed opportune to

15    drop some of the counts in the indictment because they contain cumulative

16    charges.

17            I am aware of the fact this is something that the Trial Chamber is

18    not usually asked to do as part of the Rule 98 bis proceedings.  This is

19    why I presented the lengthy introduction.  This was the objective of my

20    presentation.

21            JUDGE ANTONETTI: [Interpretation] Well, the Prosecutor will

22    respond to what you have just said when the time comes.

23            It is now 20 minutes to 7.00, so we shall hear Mr. Ibrisimovic

24    last.  Perhaps we can hear him tomorrow if he so wishes.

25            Mr. Ibrisimovic.

Page 26987

 1            MR. SAHOTA:  Your Honours, I will be making submissions on behalf

 2    of Mr. Pusic, and my request is for the hearing to be adjourned until

 3    tomorrow afternoon.  I anticipate that I would take in the region of an

 4    hour, perhaps a little longer, but what is certain is that I won't be able

 5    to finish today.

 6            JUDGE ANTONETTI: [Interpretation] Very well.  I think that is

 7    quite right.

 8            Mr. Stringer.

 9            MR. STRINGER:  Thank you, Mr. President.  Just to continue on the

10    remarks of counsel in respect of tomorrow's proceedings.  It's clear

11    certainly in respect of the accused Mr. Coric that the -- a great deal of

12    preparation and thought went into the 98 bis submissions that were

13    presented today.  I expect that that will be the case tomorrow in the

14    submissions being made on behalf of Mr. Pusic.

15            I don't know what the Trial Chamber has in mind for tomorrow.  If

16    I could just indicate to you now that I think the Prosecution would resist

17    being asked to proceed right into its response to Mr. Pusic's 98 bis

18    proceedings and that we'd likely to be asking -- we'd likely be asking to

19    come back on Thursday to do that.

20            JUDGE ANTONETTI: [Interpretation] Rest assured we had a schedule

21    which was the subject of a ruling, and in my mind this week it was for

22    Defence counsel to take the floor.  If Defence counsel finish tomorrow,

23    all the better, and then on Monday at a quarter past 2.00 you can start.

24    You might not need the rest of the week, but you will have ample time to

25    prepare like that.  Everybody will be satisfied.

Page 26988

 1            Have I reassured you?

 2            MR. SCOTT:  Absolutely, Mr. President.  Thank you.

 3            JUDGE ANTONETTI: [Interpretation] It is now time to adjourn.  We

 4    shall meet again tomorrow at a quarter past 2.00.  Very well.  Thank you.

 5                          --- Whereupon the hearing adjourned at 6.43 p.m.,

 6                          to be reconvened on Wednesday, the 30th day

 7                          of January, 2008, at 2.15 p.m.