Tribunal Criminal Tribunal for the Former Yugoslavia

Page 52680

 1                           Wednesday, 23 February 2011

 2                           [Coric Defence Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           [The accused Pusic not present]

 6                           --- Upon commencing at 2.16 p.m.

 7             JUDGE ANTONETTI: [Interpretation] Madam Registrar, could you

 8     please call the case.

 9             THE REGISTRAR:  Good afternoon, Your Honours.

10             This is case number IT-04-74-T, the Prosecutor versus Prlic

11     et al.

12             JUDGE ANTONETTI: [Interpretation] Thank you, Madam Registrar.

13             On Wednesday, I would like to welcome everybody, the accused, the

14     counsel, members of the OTP, anybody who is assisting us.

15             I would like to give the floor to Ms. Tomic, the Defence counsel

16     for Mr. Coric.  She's going to continue presenting her final arguments.

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

18     Honours.  Good afternoon to everybody in the courtroom and around the

19     courtroom who are observing these proceedings.

20             At the beginning of today's argument, I would like to correct two

21     numbers that I read out incorrectly.  I would like to do it for the

22     transcript.  The mistake is on transcript page 52, lines 5 and 6.  In

23     connection with Witness Skender, the following transcript pages should be

24     referred to:  45210 through 45283, and not 45310 and 45283.  Likewise, on

25     transcript page 76, line 4, instead of P2574, there should be P2754.

Page 52681

 1             Your Honours, the Prosecutor, in their final brief,

 2     paragraph 1041, as well as in their closing argument, assert that the HVO

 3     tolerated crimes because it was the HVO policy.  It tolerated war crimes

 4     and crimes against humanity, and thus it did not instigate proceedings

 5     for such crimes.  Instead, and only rarely, it prosecuted perpetrators of

 6     minor offences.  The Prosecutor furthermore alleges that the accused

 7     Valentin Coric is directly responsible for such doings and that in that

 8     way, he directly contributed to the joint criminal enterprise.

 9             The Prosecutor asserts that there was an obligation for

10     proceedings to be instigated against perpetrators of such crimes and that

11     that was regulated by the International Humanitarian Law.  The fact that

12     proceedings were instigated for crimes regulated by domestic laws does

13     not diminish the responsibility of the accused.

14             In order to support their thesis, the Prosecutor invoked the

15     first-instance judgement in the Milutinovic case.  It should be pointed

16     out that that judgement is a first-instance judgement and that the

17     appeals judgement is still pending.  Furthermore, the Milutinovic case

18     arose from Serbia and Yugoslavia, and the Penal Code of those states is

19     different from the Penal Code that was in effect in the area and at the

20     time relevant for the Prlic et al case.

21             The Coric Defence would like to draw the Trial Chamber's

22     attention to a more relevant legal authority, and those are the final

23     conclusions from the first-instance decision in the Hadzihasanovic/Kubura

24     case, because that judgement and those conclusions are relative to the

25     same space and the same time as our case.  In paragraph 261 of that

Page 52682

 1     judgement, it says:

 2             "Consequently, at the time the acts alleged in the indictment

 3     were committed, there was no binding obligation on states and, therefore,

 4     on the Courts in the Republic of Bosnia and Herzegovina, to prosecute

 5     individuals for war crimes under customary International Law."

 6             Your Honours, it stems from this that national judiciary bodies

 7     had the right and had the authority to decide whether crimes should be

 8     qualified as war crimes or, alternatively, they would be qualified as

 9     regular crimes, so to speak.  In other words, the Prosecutor is not right

10     when he claims that the fact that crime reports were filed for regular

11     crimes, and not for war crimes, leads to one and only conclusion, and

12     that is that there was a criminal intent beyond any reasonable doubt and,

13     hence, that there was also criminal responsibility.  In any case, the

14     Prosecutor didn't do anything to investigate or lead evidence about the

15     types of criminal reports filed.  That did not prevent him from

16     misinterpreting the facts and saying that such criminal reports did not

17     even exist.

18             Your Honours, a more detailed analysis of a limited number of

19     pieces of evidence that the Defence has managed to obtain demonstrates

20     that such reports were indeed filed by appropriate bodies pursuant to the

21     Penal Code of the SFRY.  The Coric Defence tendered into evidence

22     log-books and registers of some prosecutor offices.  They are on the file

23     as Exhibit 5D4288.  Due to its limited resources, the Defence was not in

24     a position to obtain the registries of all courts and all prosecutors'

25     offices.  If we had been able to do so, that would certainly help the

Page 52683

 1     Trial Chamber to create an integral picture of what really went on.

 2     These registers, in the part that concerns proceedings against unknown

 3     perpetrators, there is a reference to four proceedings that were

 4     instigated for crimes pursuant to Article 142 of the Penal Code of the

 5     SFRY.  These cases may be located under the following numbers:  KTN-3/95,

 6     KTN-99/95, KTN-101/95, and KTN-103/95.  In all of the cases, the criminal

 7     reports were filed in 1993, which is also visible in the register.  It

 8     has also been noted that one case, under number KTN-98/95, was instigated

 9     for a crime pursuant to Article 144 of the same law.  In all the five

10     cases, the agreed parties or victims were Muslims.

11             Article 142 of the Penal Code of the SFRY concerns the crime

12     known as a war crime against civilian population.  Article 144 of the

13     same Code concerns a crime of war crime against prisoners of war.  Your

14     Honours, this clearly shows that the Prosecutor is wrong when he claims

15     that no single proceedings were instigated for war crimes.

16             With regard to the quantity of the pieces of evidence that the

17     Coric Defence has managed to obtain and tender into evidence, I would

18     like to draw the Trial Chamber's attention to another paragraph from the

19     aforementioned judgement in the Hadzihasanovic/Kubura case,

20     paragraph 239.  In that sense, Hadzihasanovic's Defence, in its own

21     interests, has to answer charges against the accused Hadzihasanovic, and

22     it can present documents that testify to the measures that the accused

23     Hadzihasanovic undertook in order to, for example, elucidate the context

24     of the case or the fact that the military disciplinary system was in

25     place, it was up and running.  However, the fact that the Defence

Page 52684

 1     presented such documents should certainly not be at its detriment.

 2             There is one thing to take into account the necessity for the

 3     accused to answer the charges against him.  However, burden of proof

 4     cannot be transferred onto the Hadzihasanovic Defence and thus put it in

 5     a hopeless situation.  On the one hand, if the Defence presents a certain

 6     number of documents which show that measures were indeed taken, the

 7     Prosecutor will reap benefits from the lack of evidence in its case.  On

 8     the other hand, if the Hadzihasanovic Defence opts for a passive defence

 9     and it doesn't present documents that demonstrate that measures were

10     indeed taken, the Prosecutor can use such a situation in order to

11     establish that the accused Hadzihasanovic did not take any measures at

12     all, since his own Defence failed to locate a single document that might

13     have proven that he had.

14             The Prosecutor, as I've already stated, by its allegations,

15     implies that Valentin Coric was responsible for the fact that

16     perpetrators of various crimes were not prosecuted and punished, and I'm

17     going to quote another part of the Hadzihasanovic and Kubura judgement.

18     Paragraph 137:

19             "To determine measures a superior must take, an examination of

20     national law is relevant."

21             139, paragraph 139:

22             "Besides, in order to determine the scope of the measures a

23     superior could take to determine his own responsibility under

24     Article 7(3), the Tribunal's case law has relied on the national law

25     and/or regulations of one of the armed forces in conflict."

Page 52685

 1             At the time relevant for the indictment, across the entire

 2     Bosnia-Herzegovina, including the HZ-HB, the area was regulated by the

 3     same laws and regulations; the Law on Criminal Proceedings, the Penal

 4     Code of Bosnia and Herzegovina, and the Penal Code of the SFRY.  This is

 5     corroborated by documents P449, P592, 2D908, 2D909 and 2D910.

 6             The Law on Criminal Proceedings, which is also Exhibit 4D1105,

 7     regulated the rights and obligations of authorised bodies in the

 8     following way:  In keeping with Articles 158 and 161, investigations were

 9     instigated at the request of the prosecutor, and the person in charge of

10     investigations was the investigating judge.  An investigating judge was

11     duty-bound to inform the prosecutor if, during the investigation, it was

12     established that the proceedings had to be expanded to include another

13     crime or other persons.  This is regulated by Article 165 of the same

14     law.

15             According to Article 170, an investigating judge could stop an

16     investigation at the request of a prosecutor.  In special cases regulated

17     by Article 171, that could be done by a trial chamber.  Once an

18     investigation was completed, the investigating judge in charge would

19     refer the case to the prosecutor, and that was regulated by Article 174.

20             Article 261 stipulated that the proceedings before a court were

21     conducted based on an indictment issued by the public prosecutor or by

22     the victim of the crime.  The prosecutor was the one who qualified a

23     crime, who gave it a legal name, referring to a provision in the Penal

24     Code, which also meant that those provisions had to be applied upon the

25     prosecutor's proposal.  That was prescribed by Article 262.

Page 52686

 1             A judgement was handed down by the court.  When handing down a

 2     judgement, the court did not have to abide by the prosecutor's proposals

 3     about the legal qualification of the crime.  This is regulated in

 4     Article 346.

 5             Your Honours, it arises from all of that that Valentin Coric, the

 6     Military Police Administration, or any member of the military police did

 7     not have the authority to issue indictments, to conduct investigations,

 8     or to stop criminal proceedings.  They also did not have the authority to

 9     qualify crimes or issue judgements.  This means that Valentin Coric, the

10     Military Police Administration and military policemen did not have a say

11     in deciding what kind of proceedings would be conducted.  They didn't

12     decide about who will be punished, whether they will be punished, and how

13     they will be punished.  It was the judiciary that had all those

14     authorities, both the military and civilian prosecutors as well as

15     judges, including investigating judges.

16             None of the aforementioned judiciary bodies were part of the

17     structures of the Military Police Administration or the military police

18     units.  Valentin Coric did not have any authority over those judiciary

19     bodies.  He was also not in a position to control them, either de jure or

20     de facto.  The military police was just one of the bodies who could file

21     a criminal report with a competent prosecutor's office after the end of a

22     police investigation, and that is where all the obligations, authorities

23     and possibilities given to the military police to contribute to the

24     prosecution of criminals stopped.

25             Under the same factual circumstances, by studying and reviewing

Page 52687

 1     the same regulations, the Trial Chamber in the Hadzihasanovic and Kubura

 2     case, in paragraph 1061, concluded as follows:

 3             "The Chamber finds that the accused Hadzihasanovic was unable to

 4     carry out his own criminal investigation or to influence how the case was

 5     dealt with by Judge Mirsad Strika or the competent prosecutor.  Given

 6     that the 3rd Corps military police informed the investigating judge of

 7     the arrival of the bodies at the Zenica Morgue, thereby referring the

 8     matter to the appropriate military judicial authority, it cannot be

 9     concluded that the accused Hadzihasanovic did not take the necessary and

10     reasonable measures under Article 7(3) of the Statute."

11             Your Honours, in this case there is evidence that numerous

12     criminal reports were submitted against perpetrators of crimes, including

13     those crimes where the victims were Muslims.  By far, the largest

14     percentage of those were initiated by the military police by submitting

15     those very criminal reports.

16             Tomljanovich, who was a Prosecution expert, at pages 6368 and

17     6369 of the transcript, as well as the OTP Witness Biskic at transcript

18     pages 15277 and 15278, confirmed that the military police submitted over

19     1.000 criminal reports in 1992 alone.  It is also confirmed by document

20     P950.  The Defence Witness NO, in his testimony at page 51215 and 51216

21     of the transcript, stated that according to his knowledge, the military

22     police submitted over 2.000 criminal reports.

23             Valentin Coric's Defence would like to remind the Trial Chamber

24     that during our examination of Witness Vidovic at transcript

25     pages 51438 to 51535, and its examination of Witness Buntic at transcript

Page 52688

 1     pages 30516 to 30568, presented those witnesses a number of documents

 2     which had to do with around 40 criminal proceedings held against various

 3     perpetrators for crimes the victims of which were Muslims; inter alia, it

 4     included the crimes of murder, rape, theft, et cetera.

 5             Due to limited time, this Defence is not in a position to present

 6     all those documents yet again to the Trial Chamber.  Besides, in

 7     Exhibit 5D4288, that is to say, in the KTN prosecution registers, one can

 8     see that during the period of time relevant to this indictment, 296

 9     criminal reports were submitted in total for various crimes committed

10     against Muslims.  Most of them were submitted by the military police.

11             Your Honours, in their closing arguments at page 52132 of the

12     transcript, the Prosecution stated that they agree that in the Military

13     Police Administration, the various companies, and the 5th Military Police

14     Battalion, there were good men who were trying to perform their jobs

15     well.  The Prosecution also stated that they were trying to do something

16     against this widespread criminal behaviour in the field.  The Prosecution

17     also said that it was for that reason that they drafted all the reports

18     we watched, we saw.  Your Honours, the Coric Defence asserts that

19     evidence shows that the position to prosecute perpetrators of crimes, and

20     a general condemnation of unlawful conduct, was the only plan

21     Valentin Coric had as well as the only plan that existed within the

22     Military Police Administration and the military police of the HVO as a

23     whole.  It was not a position of a few good men.

24             I'd like to remind you of the words of Witness Andabak at

25     transcript pages 50953 to 50954:

Page 52689

 1             [In English] "Yes, I do know about that, and it was the position

 2     of the military police, from the top man, Mr. Coric, was that any such

 3     perpetrators should be persecuted and the criminal report filed, and for

 4     them to be dismissed from the unit.  And those who upset law and order,

 5     that disciplinary measures be taken against them and, if need be, to

 6     eliminate them from our units.  So at all briefings and all my contacts

 7     with the Military Police Administration also told us that anybody who

 8     besmirched the name of the military police on battlegrounds throughout

 9     Bosnia-Herzegovina, that they should be thrown out of the units."

10             [Interpretation] Your Honours, I'd also like to invite you to pay

11     your attention to document P3571.  Valentin Coric had the following to

12     say concerning a case of rape of two Muslim girls by military policemen:

13             "The named persons defamed the military police, and their further

14     retention in the unit would be detrimental."

15             The entire case file is handed over to the competent Military

16     Prosecutor's Office.

17             I'd like to move on to my next topic.

18             In their final brief, the Prosecution asserted that

19     Valentin Coric established and controlled check-points throughout

20     Herceg-Bosna, using them in order to control movement, and to render

21     delivery of international assistance, including humanitarian assistance,

22     impossible.  They seek to corroborate this thesis of theirs in paragraphs

23     1000 to 1015 of their final brief.  Your Honours, not a single document

24     the Prosecutor referred to in those paragraphs proves that Valentin Coric

25     in any way disrupted the movement of humanitarian organisations as well

Page 52690

 1     as their lending assistance.  Also, contrary to the Prosecution thesis,

 2     these documents show that Valentin Coric had no exclusive authority over

 3     check-points.  The military police didn't have any either.

 4             The Coric Defence, in our final brief in paragraphs 324 to 337,

 5     dealt with the topic of check-points.  Therefore, in this presentation I

 6     will simply briefly comment on certain allegations made by the

 7     Prosecutor.

 8             In paragraph 1000, the Prosecutor asserts that Petkovic, in his

 9     order number P1673, confirmed that the military police was responsible

10     for roads.  This document shows only that Petkovic did order the military

11     police without informing the Military Police Administration about this

12     order, as the assertion stands.  The Coric Defence asserts that the

13     check-points were not manned by military policemen and that the personnel

14     at those check-points were not under the control of the Military Police

15     Administration.  This is shown in document P1548, which shows that

16     operational zone commanders commanded the check-points through their

17     brigade commanders.  Also, in addition to military policemen, those

18     check-points were manned by soldiers.  Both were commanded by operational

19     zone commanders.

20             The Prosecutor puts forth document P1331 as a key example of

21     Coric's order, proving that Coric controlled entry to Mostar.  The only

22     thing you can see on the basis of that document is that it came about due

23     to a deteriorating security situation, and that because of that, searches

24     of persons, vehicles, and cargo were ordered.  There is no mention

25     whatsoever of any ban on movement of international assistance or

Page 52691

 1     international organisations.  This order was issued based on an order of

 2     the commander of the South-East Herzegovina Operational Zone, which is

 3     document P1272.  In the order, he clearly states that it was being issued

 4     because there were check-points formed inside the town without the

 5     knowledge of the Command of South-Eastern Herzegovina Operational Zone,

 6     and because armed groups appeared, threatening the security of all, as

 7     well as because of the attack on a police check-point in Grabovica.

 8             Document P1134, referred to by the Prosecutor in paragraph 1001,

 9     also has nothing to do with humanitarian assistance or with international

10     agencies.  It is specifically mentioned that Valentin Coric did not

11     personally sign the document, because at the time he was not in Bosnia

12     and Herzegovina.  This is something we discussed in our final brief in

13     paragraph 625.

14             The Prosecutor also refers to document P1654, P1654.  Your

15     Honours, this document also has nothing to do with humanitarian

16     assistance or with representatives of the international organisations.

17     It is clear from the document that its author focused his attention on

18     law and public order and the prevention of crime.  The last sentence of

19     the document clearly indicates that the operational zone commanded the

20     military police in the town of Mostar.

21             In order to corroborate their thesis, the Prosecution referred to

22     document P1868, the so-called plan of increased control of the town of

23     Mostar.  The Coric Defence, first and foremost, wishes to stress that it

24     is clear from the document that the plan was drafted jointly by some

25     other organs, including the command of the operational zone, and not the

Page 52692

 1     Military Police Administration or its head.  It is clear, on the basis of

 2     the document, that a dedicated task force was put together, on whose

 3     behalf Lavric signed the plan.  Therefore, Lavric did not sign the

 4     document about this plan as Coric's deputy.  It doesn't say that in the

 5     document either.  He signed this on his own behalf and on behalf of the

 6     task force.  All important telephone numbers are specified in the

 7     document, including the telephone numbers of the chief of the Main Staff,

 8     the commander of the operational zone, the deputy commander of the

 9     operational zone, as well as commanders of certain military police units.

10     However, Your Honours, there is no number that would be Valentin Coric's

11     number.

12             Also, at the end of the document, there is a list of people who

13     were supposed to receive the document.  Next to the name of each body

14     specified, we have a specific person that was to receive the plan; for

15     example, to the operational zone commander, to the Police Administration

16     and its head, to the head of the Department of Internal Affairs.  Your

17     Honours, there is nothing written next to the "Military Police

18     Administration," no functional title, no name.  The Coric Defence asserts

19     that there is no evidence that Coric was part of this plan or that he was

20     acquainted with it.  The Coric Defence furthermore asserts that a few

21     days following the document, Valentin Coric issued an order on the

22     establishment of joint police patrols between the Army of

23     Bosnia-Herzegovina and the HVO, following an order issued by the

24     commander of the South-Eastern Herzegovina Operational Zone commander.

25     This is indicated in documents P2030 and P2020.

Page 52693

 1             The documents referred to by the Prosecutor in paragraph 1004,

 2     there is no mention of the military police.

 3             In paragraph 1006, the Prosecution states that the military

 4     police, during the siege of Mostar, prevented international organisations

 5     from entering Mostar.  They refer to several documents, of which not one

 6     refers to the military police.  By the same token, they also invoke an

 7     adjudicated fact, which also makes no reference to the military police.

 8             Your Honours, the Coric Defence asserts that out of all of the

 9     evidence referred to by the Prosecutor, none of them show that Coric was

10     in any way controlling the check-points or that the military police was

11     the one preventing the distribution of humanitarian assistance.  This is

12     further corroborated by the evidence presented by this Defence.  The

13     Coric Defence asserts that the freedom of movement in a particular area

14     was decided upon solely by military commanders in their respective areas

15     of responsibility.

16             It is visible, from documents P2108, P2461, P2531, P2680, P4027,

17     and P4623 that various military commanders met from various levels,

18     starting with the chief of the Main Staff and other people from the

19     Main Staff, as well as different commanders from the Command of the

20     Operational Zone of South-East Herzegovina, as well as commanders of

21     local brigades.  They met 27 times in total in order to negotiate with

22     the international organisations or with their mediation concerning the

23     issue of the freedom of movement.  All these meetings and talks took

24     place between the 26th of April, 1993, and the 2nd of September, 1993.

25     All the documents I listed are documents of representatives of


Page 52694

 1     international organisations.  Your Honours, neither Valentin Coric nor

 2     anyone else from the Military Police Administration or military police

 3     was present at any of these negotiations.

 4             As for the freedom of movement, I direct your attention to the

 5     following documents:  P2421, P6825, P3923, P3895, P3835 and P5104.

 6             Your Honours, a protected witness testified here, a

 7     representative of an international organisations, DZ.  His statement is

 8     admitted as P10367.

 9             Just in case, I wish us to move to private session just for two

10     minutes.

11             JUDGE ANTONETTI: [Interpretation] I asked the secretary for us to

12     move to private session.

13                           [Private session]

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 52695

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9                           [Open session]

10             THE REGISTRAR:  We are in open session.

11             MS. TOMASEGOVIC TOMIC: [Interpretation] The Petkovic Defence, in

12     paragraph 387 of its final brief, deals with snipers in the Mostar area

13     in the relevant period, as they say, between the 30th of June until the

14     24th of July, and claims that the Prosecution failed to prove that in

15     this period, civilians were targeted by snipers who belonged to the

16     regular HVO forces.  It is noted in footnote 690 that the HVO military

17     police also had snipers in its units, thus insinuating that they were the

18     ones who may have targeted civilians.  In this, the Petkovic Defence

19     refers to the semi-annual report of the Military Police Administration

20     for the first half of 1993.  Your Honours, this semi-annual report for

21     the first half of 1993 is the sole document which connects the Military

22     Police Administration in any way whatsoever with snipers.  As for

23     snipers, the document only says that the Military Police Administration

24     organised sniper training and that the result of sniper combat after the

25     training is 6:1.


Page 52696

 1             Your Honours, there is nothing bad in training snipers,

 2     particularly not training which included the Geneva Conventions and which

 3     was organised and implemented by the Military Police Administration.  And

 4     likewise, Your Honours, sniper combat does not mean targeting civilians,

 5     but rather combat among the snipers.

 6             In response to the claims made by the Petkovic Defence, the Coric

 7     Defence, first of all, wishes to say that this document does not relate

 8     to the period for which the Petkovic Defence claims it is relevant, that

 9     is to say, the period between the 30th of June and the 24th of July, but

10     rather to an earlier period.  Further, the Coric Defence would like to

11     remind Your Honours that General Praljak, testifying before this

12     Tribunal, confirmed that the snipers in Mostar belonged to the

13     2nd Brigade of the HVO, which is recorded on the following transcript

14     pages:  42892 through to 42898.

15             The Coric Defence also invites Your Honours to examine document

16     P1307.  It is a document dated the 26th of January, 1993.  It is an order

17     from the chief of Main Staff, which says:

18             "Due to the newly-arisen situation, it is necessary to collect

19     urgently 40 sniper rifles as follows:  Citluk, 10; Grude, 10; Ljubuski,

20     10; Siroki Brijeg, 10.  The dead-line for carrying out this order is the

21     26th of January.  The rifles, with listed numbers, shall be submitted by

22     the said dead-line to the Main Staff of the Mostar HVO.  If necessary,

23     also engage military police for the collection of rifles."

24             The document was sent to the South-Eastern Herzegovina

25     Operational Zone, the 4th Brigade of the HVO in Ljubuski, the Citluk

Page 52697

 1     Battalion, Ljubuski, Grude, Siroki Brijeg Battalion.

 2             Your Honours, the Coric Defence claims that there is no evidence

 3     that Valentin Coric is responsible for incidents connected with civilians

 4     being targeted by snipers in Mostar.

 5             We'll now move to our next topic.

 6             In its closing arguments, the Prosecution alleges that the

 7     Military Police Administration participated in illegal moving in into the

 8     apartments from which the earlier tenants were previously evicted by

 9     force, and these tenants were ethnic Muslims, and refers to documents

10     P2879 and P6232.

11             Document P2879, which the Prosecution refers to, does not show

12     that these were Muslim apartments.  Likewise, it does not show what were

13     the dates at which members of military police moved into these

14     apartments, whether that happened in 1993 or whether it could have taken

15     place in 1992.  During 1992, many Serbs left Mostar, and they made up

16     almost 20 per cent of the population, and, therefore, they had at their

17     disposal a proportionate segment of the housing stock.  In addition to

18     that, there were also many apartments which used to belong to the JNA and

19     which, according to the decree, were placed at the disposal of the

20     municipal authorities, which is testified to by the document 1D03016.  In

21     addition to that, the document that the Prosecution refers to does not

22     show that the apartments were forcibly occupied.  Likewise, document

23     P62332 does not show that these were apartments from which their previous

24     users were forcibly evicted, nor can this be seen from any other

25     document.

Page 52698

 1             The Decree on the Use of Abandoned Apartments, dating from July

 2     1993, which is document P03089, Article 2 defines what is to be

 3     considered as an abandoned apartment, and Article 1 states when the right

 4     to use the apartment expires for the previous tenancy rights holder.

 5     Article 7 notes the conditions under which an apartment, for which it was

 6     established by a decision that it can be considered abandoned, can be

 7     given for use to a member of HVO or a person who, due to actions caused

 8     by war, was left without his or her apartment.  The temporary use of an

 9     apartment may last up to one year from the day of the termination of

10     immediate threat of war.  Article 9 of this decree says that the body of

11     the municipal HVO administration in charge of housing issues is the body

12     which gives an abandoned apartment for use.  Before this decree, the

13     municipal authorities would adopt regulations on their own by which they

14     established the manner of temporary use of apartments, as testified by

15     the documents 1D01127, 1D03016, 1D00435, 1D00717, and 1D1152.  The issue

16     of military apartments was regulated by a decree on the temporary use of

17     military apartments.

18             It follows from this that in both documents which the Prosecution

19     refers to in its closing arguments, the Military Police Administration

20     acted in accordance with the procedure as prescribed by the quoted

21     decree.  It would submit a request to the relevant body, and the subject

22     of the requests were the apartments which were covered by the conditions

23     noted in this decree.

24             Additionally, we note that Rade Lavric, for whom the Prosecution

25     also says that he signed the above two documents on behalf of the

Page 52699

 1     Military Police Administration, held the position of president for

 2     control and monitoring of the use of military apartments at the level of

 3     the South-Eastern Herzegovina Operational Zone, in which a housing

 4     commission was formed and chaired by Stipe Maric.  We note that the

 5     housing commission submitted reports to the commander of the

 6     South-Eastern Herzegovina Operational Zone.  An example of such a report

 7     is P6860.

 8             In the report, the chairman of the commission says that the

 9     military police shall evict all persons who illegally moved into such

10     apartments, that is to say, all those who do not have a decision

11     permitting them to use these apartments and which was issued to them by

12     the said commission.  We can see from all this that the Prosecution

13     claim, from the closing arguments, about the greediness of the military

14     police for Muslim apartments, is only insulting and nothing more.  The

15     existence of abandoned apartments is the subject of decreed laws, and the

16     fact that someone submitted a request to be issued a decision on

17     temporary use of those apartments, in accordance with the legal

18     regulations which were then in force, does not justify anyone to draw a

19     conclusion that the previous tenants were evicted by force from these

20     precise apartments and that these were automatically criminal acts.

21     Abandoned apartments were allocated to members of various HVO units; for

22     example, documents P2538 and P2608 talk about this.  Likewise, the

23     municipal HVO authorities allocated apartments to Muslims who met the

24     criteria set out in the decree; for example, P3444 and 1D641 show that.

25             Additionally, the Coric Defence notes that such practice of

Page 52700

 1     allocating abandoned apartments to certain categories of military

 2     officials and expellees and refugees, based on the same legal institutes

 3     using apartments which were abandoned by their previous users without a

 4     valid basis, was something that was also applied in the Army of Bosnia

 5     and Herzegovina, as seen from document 3D734.  The basis for acting in

 6     the organs of the Republic of Bosnia and Herzegovina was the relevant

 7     decree law on abandoned apartments, and that is document 1D530.  I still

 8     owe you the number of the decree on the temporary use of abandoned

 9     apartments.  That is P1384.  The decree was issued on the 1st of

10     February, 1993.

11             I'm moving on to a new topic.

12             In their closing argument, the Prosecution said that Mr. Coric

13     contributed to the joint criminal enterprise by approving and subscribing

14     to the administrative system of deportations, according to which

15     detainees could be released from prisons on a condition that together

16     with their families, they left Bosnia and Herzegovina.  The Coric Defence

17     already dealt with the matter in their final brief, so today I'm going to

18     refer only to what Mr. Stringer said in his closing argument.

19             Your Honours, most of the presentation from now on will be

20     concerning a protected witness, so can we go into private session to

21     protect the witness?

22             JUDGE ANTONETTI: [Interpretation] Madam Registrar, private

23     session.

24                           [Private session]

25   (redacted)


Page 52701











11 Pages 52701-52707 redacted. Private session.
















Page 52708

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5                           [Open session]

 6             THE REGISTRAR:  We're back in open session, Your Honours.

 7             JUDGE ANTONETTI: [Interpretation] Very well.

 8             Madam Tomic, you have about one hour after the break, according

 9     to my calculations.

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

11             JUDGE ANTONETTI: [Interpretation] Very well.  We are going to

12     take a 20-minute break.

13                           --- Recess taken at 3.42 p.m.

14                           --- On resuming at 4.04 p.m.

15             JUDGE ANTONETTI: [Interpretation] Very well.  We are continuing.

16             Ms. Tomic, you have the floor.

17             MS. TOMASEGOVIC TOMIC: [Interpretation] The Prosecution, in their

18     closing arguments, asserted that the Coric Defence, in our final brief,

19     disputed the authenticity of document P3220 solely based on the

20     allegation of a forged signature.  This is incorrect.  Your Honours, the

21     Valentin Coric Defence, in paragraph 699 to 702, disputes the

22     authenticity of documents P3220 and P3216.  In both these documents,

23     there's an alleged response by Valentin Coric to an order issued by

24     Colonel Nedjeljko Obradovic.  It is clear, on the basis of the document,

25     that it was sent to the prison wardens in Gabela, Dretelj, Heliodrom, and

Page 52709

 1     Ljubuski.

 2             The Coric Defence, in our final brief, put forth a number of

 3     reasons due to which we believe this document is a counterfeit.  I will

 4     only mention a few.  In order to be able to be more precise while doing

 5     that, I'm afraid we'll have to go back into closed or private session.

 6             JUDGE ANTONETTI: [Interpretation] Madam Registrar.

 7                           [Private session]

 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 52710

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8                           [Open session]

 9             THE REGISTRAR:  We're in open session, Your Honours.

10             MS. TOMASEGOVIC TOMIC: [Interpretation] The Prosecutor, in their

11     closing arguments, imply that Colonel Obradovic did not have real

12     authority at Heliodrom.  The Coric Defence dealt with Colonel Obradovic

13     and his authority over prisons in detail in our final brief.  Therefore,

14     I will specify but one example here.

15             On the 8th of July, 1993, Valentin Coric approved for UNHCR

16     representatives to visit the prisons of Dretelj, Ljubuski, and Heliodrom.

17     The document number is P3292.

18             On the 10th of July, UNHCR representatives, together with a

19     representative of the ODPR, visited the Heliodrom.  During the visit,

20     Mr. Herceg told the UNHCR representatives that the ODPR was responsible

21     for the civilians and that the HVO was responsible for the detainees.

22     During that visit, the UNHCR, together with the ODPR, visited the persons

23     accommodated in the gym and the school building.  As for the detainees,

24     they were told that they were in the prison building which was also at

25     the Heliodrom.  The ODPR representative, as well as the military


Page 52711

 1     officials present during that occasion, informed the UNHCR that the

 2     International Committee of the Red Cross had visited the prison building

 3     previously.  It was because of that and some other reasons that UNHCR did

 4     not insist on visiting the prison themselves.  Beside that, UNHCR was

 5     also told that no repeated visits were granted to the ICRC, following

 6     which UNHCR withdrew.  It is all seen in document P9843.

 7             Both documents were referred to by the Prosecution in their final

 8     brief, and the Prlic Defence also invited the Chamber to view the

 9     documents.

10             Your Honours, in the approval issued by Valentin Coric, there

11     were no restrictions contained.  He didn't specify which buildings were

12     open to access and which were not.  He simply approved that prison visit.

13     I'd like to draw your attention to document 5D3008 to that end.  It

14     concerns a meeting called by Colonel Obradovic on the 6th of July, 1993,

15     with his subordinates in attendance.  That was a few days before the

16     visit at the Heliodrom.  Among other people, there were also

17     representatives of the 3rd Brigade present at the meeting, and the

18     3rd Brigade was located at the Heliodrom.  The commander of the military

19     police company located in the barracks in Dretelj was also present.  On

20     that occasion, Colonel Obradovic provided instructions for the work in

21     prisons, and among other things, he prohibited access to all

22     international organisations to the Heliodrom.

23             Your Honours, as we could see in document P3292, Valentin Coric,

24     without restriction, approved the visit of the representatives of

25     international organisations in order to visit the detainees at the

Page 52712

 1     Heliodrom, in Dretelj, and in Ljubuski.  Still, at the Heliodrom, that

 2     approval was not taken into account.  Why not?  Because Obradovic, on the

 3     6th of July, prohibited any international organisations' visits.

 4             Your Honours, in paragraph 193 of the indictment, the OTP assert

 5     that until August, international organisations failed to enter Dretelj.

 6     Your Honour, Valentin Coric issued his approval to go to Dretelj as early

 7     as the 8th of July.  Only two conclusions can be drawn from this.  First,

 8     Valentin Coric in no way hindered access to international organisations

 9     to prisons and detainees.  Second, Valentin Coric was not a person of

10     authority, be it at Dretelj or at the Heliodrom.  The Coric Defence

11     submits that the de facto authority in all prisons in Sector South,

12     including the Heliodrom, lay with Colonel Obradovic, who was the sector

13     commander.

14             In paragraph 213 of their final brief, the Petkovic Defence

15     stated that any army obligations vis-a-vis the prisoners cease at the

16     moment of their hand-over to the Department of Defence, including the

17     military police.  The Coric Defence submit that military commanders never

18     handed over those prisoners to the Military Police Administration.  When

19     the military police take part in providing security of POWs or conducts

20     internal security of military prisons, such tasks fall under regular

21     daily tasks, and in such situations the military police is under the

22     command of the operational zone commander.  I discussed that and the

23     system of command for the military police.  Therefore, there is no need

24     for me to repeat myself today.

25             In addition to that, the Coric Defence submits that the military

Page 52713

 1     commanders never surrendered their authority to any other organ over the

 2     persons they had taken prisoner or arrested.  It was the military

 3     commanders who decided on their fate.

 4             Your Honours, if we look at the documents issued by international

 5     observers, P2108, P2461, P2512, P2531, P2547, P2675, and P2680 we see

 6     that various senior military commanders, in the periods between May and

 7     September 1993, participated in different talks and meetings 14 times.

 8     The release and exchanges of prisoners were discussed at those meetings.

 9     However, at those meetings, no one from the Military Police

10     Administration was present.  At those meetings, those commanders did not

11     declare themselves unauthorised or incompetent to negotiate.  The

12     military commanders decided on the exchanges and release of prisoners.

13     They had the lists of those who were taken prisoner, and they decided on

14     their fate.

15             Your Honour, I'd like to draw your attention to the document

16     P2108 issued by the international observers.  At page 38, it reads that

17     the lists of all detainees at the Heliodrom, as of the 18th of August,

18     1993, were handed over to that international organisation by Zarko Keza.

19     Your Honours, he is a member of the Military Intelligence Service of the

20     Main Staff.

21             While we're on the topic of prisoner lists:  The Prosecution, in

22     paragraph 1089 of their final brief, assert that Valentin Coric was

23     informed that on the 9th of May, at the Heliodrom, there were civilians

24     who had been arrested.  They refer to a list from that document.  It is

25     clear, by perusing the document, that the Military Police Administration


Page 52714

 1     received that document as late as the 22nd of June, 1993; that is to say,

 2     a full month after those persons had already left the Heliodrom.

 3     Valentin Coric and the Military Police Administration did not decide on

 4     the arrival and departure of those people to and from the Heliodrom.  Not

 5     only that, but the Military Police Administration received the list a

 6     full month later, after everything had been over.

 7             Regarding who took over prisoners after they were taken prisoner,

 8     and who were they handed over to de facto, I wish to quote the page

 9     transcript 51323 and 51324.  It is the testimony of Witness NO.  For that

10     person, I'd like to ask that we go into closed session briefly.

11             JUDGE ANTONETTI: [Interpretation] Madam Registrar.

12                           [Private session]

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 52715

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             THE REGISTRAR:  We are in open session, Your Honours.

 8             MS. TOMASEGOVIC TOMIC: [Interpretation] In connection with this

 9     topic, the Coric Defence directs Your Honours' attention to the following

10     documents:  P1959, in which the commander of the Main Staff orders that

11     the exchange of all prisoners begin at once, this order he addresses to

12     operational zones; document P1351, which shows that the commander of the

13     operational zone and the commander of the brigade have lists of those who

14     were taken prisoner and are deciding on the exchanges; document P3958 is

15     the number of prisoners in Dretelj, addressed to the brigade; document

16     4D347, order of the operational zone commander, addressed to all his

17     units, to release arrested civilians; document P1994, Main Staff

18     commander orders all operational zones how they are to treat arrested

19     civilians and soldiers, telling them that they must report the identity

20     of all prisoners to the ICRC and enable the ICRC to visit the prisoners;

21     P4156, the brigade commander issues an order relating to the

22     accommodation and living conditions for prisoners of war.

23             The Military Police Administration did not decide on the release

24     or exchange of prisoners.  At the request of relevant bodies, the

25     Military Police Crime Investigation Department provided information


Page 52716

 1     whether criminal proceedings were being conducted against the person or

 2     not.  Documents P4379, 6D169, and P4450 show this.

 3             Your Honours, the International Committee of the Red Cross

 4     addressed high-ranking military commanders on a number of occasions

 5     concerning the issue of treatment of prisoners of war, including forced

 6     labour.  They also addressed Mr. Petkovic among these.  None of them ever

 7     told the International Committee of the Red Cross to address the Military

 8     Police Administration, nor that the Military Police Administration was

 9     responsible for the treatment of prisoners.  In connection with this,

10     Your Honours, please review the following documents:  P284, P2950, P7629,

11     P7636, P7660, P5308, and P5967.

12             Why am I saying this?  Because in its final brief, the

13     Prosecution uses, as the only documents that connect the Military Police

14     Administration with forced labour, the following documents:  P4020 and

15     P4030.  The former is a document signed by Mr. Petkovic, which says that

16     the Military Police Administration is responsible for the use of

17     prisoners, and the latter document is a document from the Posusje

18     Brigade, which supposedly acts on Mr. Petkovic's instructions and

19     requests prisoners for labour from, as the document says, the VPHB Coric.

20             Document P4068 is a report of the brigade military police from

21     the very same Posusje Brigade, which says that they acted on the request

22     from the brigade and took the prisoners from the Otok Prison.

23             Your Honours, there is no evidence that Valentin Coric or anyone

24     else from the Military Police Administration ever received or saw any of

25     these three documents, nor that anyone from the Military Police

Page 52717

 1     Administration or Valentin Coric ever acted on this request.  Concerning

 2     these two documents which are connected with the Posusje Brigade, the

 3     Defence particularly points out something else that is illogical.  The

 4     Posusje Brigade is located in the North-Western Herzegovina

 5     Operational Zone.  The Otok Prison was located in the South-Eastern

 6     Herzegovina Operational Zone.  It is not logical that the

 7     Posusje Brigade, when the war operations were in full swing, should come

 8     to fetch prisoners for labour from the North-Western Herzegovina

 9     Operational Zone to another operational zone, particularly when, at the

10     same time in the area of the North-Western Herzegovina Operational Zone,

11     there were prisoners which were under the control of the Prozor Brigade

12     and the joint commander of all brigades in this area, Mr. Siljeg, from

13     the North-Western Herzegovina Operational Zone.  And there are documents

14     which show that.

15             Now I will just say a few short remarks on the subject of prison

16     from the Prosecution final brief.

17             In paragraph 1071, the Prosecution, in order to prove that

18     Valentin Coric established the rules of conduct at the Ljubuski Prison,

19     refers to document P234.  Your Honours, document P234 is a document from

20     a prison in Croatia, the Kerestinac Prison.  This document has really

21     nothing to do with Ljubuski, nor with the HVO military police, nor with

22     the HVO Military Police Administration, except that an unidentified

23     person scribbled on the document, crossed out words, and added other

24     words such as, for example, "Ljubuski" and "Valentin Coric."  The

25     document has not been shown to any witness, nor is there any other piece

Page 52718

 1     of evidence that would connect this document with the Ljubuski Prison.

 2             Paragraph 1161 of the Prosecution's final brief says that on the

 3     23rd of September, 1993, the Muslim civilians tried to prevent the

 4     transfer of prisoners who were being sent from Dretelj to Croatia.  The

 5     Prosecution refers to document P5322.  Your Honours, this document does

 6     not deal with Muslim civilians.  These were not the Muslim civilians who

 7     were protesting.  The Croats were protesting, Croats who tried to prevent

 8     the release of these prisoners from the prison.  This was confirmed by

 9     Prosecution Witness C.  In connection with this, the Defence refers Your

10     Honours to paragraphs 590 and 591 of its final brief.

11             The Coric Defence claims that Valentin Coric never, not even

12     after the incidents on the 30th of June, 1993, issued an order on

13     disarming, arresting, or isolating Muslim members of the HVO.  The Coric

14     Defence claims that according to the information which Valentin Coric had

15     at his disposal, he knew about the attack of the Army of Bosnia and

16     Herzegovina launched on the 30th of June, 1993, and the role of Muslim

17     members of the HVO in this attack.

18             After the 30th of June, 1993, within the military police, and due

19     to this security situation, a security check of military policemen of

20     Muslim ethnicity was carried out, and that was repeated in the fall of

21     1993, but not a single Muslim from the military police was arrested or

22     interned.  The Military Police Administration assessed that this was not

23     necessary.

24             According to the information that could have reached the Military

25     Police Administration, Valentin Coric could only have known that the

Page 52719

 1     military commanders in the Capljina and Stolac areas disarmed and

 2     isolated the Muslim members of their units and able-bodied Muslims.

 3     Valentin Coric had no reason to doubt the legitimacy of the decision of

 4     these military commanders because they were in the position to best know

 5     what the security situation in their units was, as well as in their zone

 6     of responsibility.  In addition to this, Valentin Coric believed, judging

 7     by himself and the Military Police Administration, that everyone else

 8     acted in the same manner.

 9             In particular, I direct Your Honours' attention to document

10     P3960.  The interpreters have it.  The Coric Defence a

11     few weeks ago requested the Prosecution to provide a corrected

12     translation of this document.  However, to this day we only received the

13     answer that this was in procedure.  We have provided the Croatian text to

14     the interpreter's booth from which I will read only one single sentence

15     which is underlined for the sake of the interpreters.  It's a report

16     personally to Valentin Coric, addressed by the commander of the 5th

17     Battalion of the Military Police, and the date is the 5th of August, 1993

18     :

19             "The order on arresting members of Muslim ethnicity for

20     preventive reasons made great difficulty and problems for us."

21             Your Honours, in the translation that the Coric Defence objected

22     against, which is the reason why we insisted that the translation be

23     corrected, lacked the word "preventive," and it is obvious that in the

24     Croatian text, this word exists.

25             Your Honours, at the moment when Valentin Coric learned what the

Page 52720

 1     actual situation in Dretelj was, according to the testimony of Witness C

 2     on transcript page 22381 and 22382, and that was a Prosecution witness,

 3     in July Valentin Coric brought Ivan Ancic, the then commander of the

 4     Military Police Company in Dretelj, to a government session so that he

 5     would inform the government about what was going on in Dretelj.  We know

 6     that the government session was held on the 19th of July, 1993, and we

 7     know that a commission which was to check the situation was sent to

 8     Capljina and Stolac.  Your Honours, in spite of all the effort made, the

 9     government was powerless here.  After that, in September 1993, at the

10     Collegium of the Defence Department, it was precisely Valentin Coric who

11     warned, once again, about poor practice in running prisons.

12             Eventually, on the 15th of September, 1993, Mate Boban issued an

13     order requesting that all norms of International Law and Geneva

14     Conventions should be observed in detention centres.  Mate Boban, in item

15     7 of this order, requests the Main Staff to inform all subordinate units

16     and commands with this order, and that the Main Staff should help all

17     these units to implement the order.  Mate Boban requested the Main Staff

18     to implement the order.  He did not request the Defence Department or the

19     Military Police Administration to do that.  The document in question is

20     P5104.

21             Your Honours, the Coric Defence, due to limitations of time, is

22     unable, in its closing arguments, to address all topics connected with

23     prisons.  What we have presented here is just a shorter version of what

24     is included in our final brief in paragraphs 338 through to 609.

25             Your Honours, the Coric Defence invites Your Honours to check

Page 52721

 1     very cautiously and with due attention every allegation of the

 2     Prosecution from their final brief and compare it with the evidence which

 3     are offered to corroborate these allegations.  There are good reasons,

 4     and the Coric Defence is not saying this just so.  So far through our

 5     presentation, we have showed documents which have been wrongly

 6     interpreted or contents was added to them which the documents do not

 7     include.  Unfortunately, the Defence does not have enough time to point

 8     out each and every one of such documents, but we direct Your Honours'

 9     attention, for example, to paragraph 1143 of the Prosecution final brief,

10     in which it is claimed that the military police participated in an

11     incident, whereas the quotation from the witness testimony that the

12     Prosecution refers to just says the HVO police.  Your Honours, it is a

13     well-known fact that the HVO had both military and civilian police.  The

14     witness was here, and the Prosecutor should have, could have, and indeed

15     had to ask the witness which police this was, but the Prosecution did not

16     do that, and it's their problem.

17             In paragraph 1150, the Prosecution claims that Witness BJ said

18     that the military police was involved in the mass transfer of Muslim

19     civilians from Grude to Ljubuski.  The Prosecution also refers to

20     document P3744.  Your Honours, the document does not say what the

21     Prosecution claims, and Witness BJ, on transcript pages 5819 and 5820

22     during cross-examination, said that he did not know at all which persons

23     these were or where these persons were going or why.  The witness was

24     unable to say whether these were Muslims, or Croats, or anything.

25             Your Honours, the Coric Defence claims that several documents in

Page 52722

 1     this case are forgeries.  It has claimed so during this presentation and

 2     also in its final brief.  In case of such arguments of Defence, the

 3     Prosecution took the stand which implies that such a situation is

 4     impossible, particularly if a document has the stamp from archives, and

 5     that the Defence makes such objections just because such documents do not

 6     fit its purpose.  The Prosecution takes this stand even though it claimed

 7     itself that it was facing the same problem a few years ago.  Even the

 8     book about the former Chief Prosecutor of this Tribunal deals with the

 9     same issue.

10             Your Honours, the Prosecution of this Tribunal submitted a

11     request for a reconsideration of judgement in Blaskic case.  This is to

12     be found in the judicial database of this Tribunal and can be accessed by

13     everyone.  In this request, the Prosecution claimed that the appeals

14     judgement in the Blaskic case was founded on an at least strange document

15     of a state organ of the Republic of Croatia; namely, there were two

16     versions of one-and-the-same document.  One of them had 20 pages, the

17     other one 40 pages.  The longer version contained the name of the source

18     from whom the information on incidents relating to Ahmici was obtained,

19     including information on the dual chain of command as regards military

20     police in Central Bosnia.  The source of all this information was

21     Mr. Blaskic's Defence attorney, Mr. Nobilo.  This is what the longer

22     version of the document says.

23             However, what was submitted to the Trial Chamber was the

24     abbreviated version, the shorter version, that had only 20 pages and from

25     which the information about the source of information was left out, so it


Page 52723

 1     turned out that the state organ learned everything through operative work

 2     from impartial sources.  It was precisely on the basis of the new

 3     information that the appeals judgement in the Blaskic case was passed.

 4     It was precisely on the basis of this information that the myth about the

 5     dual chain of command of military police came into being.

 6             Your Honours, Valentin Coric's Defence claims that Valentin Coric

 7     is not guilty and that the Prosecution has not proved beyond reasonable

 8     doubt that he's guilty, and, therefore, asks Your Honours to acquit

 9     Valentin Coric on all counts of the indictment.

10             I have finished.  Thank you.

11             JUDGE ANTONETTI: [Interpretation] Thank you, Madam.  You have

12     adhered to the time, and now we can move on to Mr. Pusic's Defence.

13             Mr. Pusic is absent due to illness.  He is represented by his

14     counsel.  I would like to give the floor to the first speaker who is

15     going to address the Trial Chamber on behalf of Mr. Berislav Pusic.

16             You have the floor, sir.

17                           [Pusic Defence Closing Statement]

18             JUDGE TRECHSEL:  I'm sorry.  You should approach considerably to

19     the microphone.  Otherwise, you are hard to understand.

20             MR. SAHOTA:  It may also help if I turn the microphone on, Your

21     Honour, which I have.

22             Your Honours, I'll start again.

23             Even in the most complicated and lengthy of criminal trials, of

24     which this is one, trials of this nature often turn on one or two

25     relatively narrow issues once all the other extraneous facts are stripped

Page 52724

 1     away.

 2             In this particular case, in respect of Mr. Pusic, we have

 3     identified two issues.  The first issue is whether, in a high-level

 4     leadership trial, such as this, where none of the accused are said to

 5     have directly participated in any crimes, the issue is whether the

 6     evidence proves beyond reasonable doubt that Mr. Pusic had any

 7     decision-making powers.  Our second issue follows from that.  Assuming

 8     that our first submission is accepted and that the Chamber find that

 9     Mr. Pusic is not a direct perpetrator of any crimes and that he had no

10     decision-making powers, then, Your Honours, should he be held criminally

11     responsible for any of the offences on the indictment?  We will frame our

12     submissions today around these two questions.

13             Your Honours, we hope that our Defence is crystal clear from the

14     very opening of our brief.  Our defence is that the Prosecution have

15     failed to prove that Mr. Pusic had any decision-making powers, they

16     failed to prove that beyond reasonable doubt, and that, accordingly, he

17     should be acquitted of all the charges on the indictment.

18             You have indicated, Your Honours, that the purpose of closing

19     submissions, as far as you are concerned, is for the parties to answer

20     the arguments that have been raised both in writing and orally.  I would

21     like to turn to some of the arguments that were advanced by the

22     Prosecution in the course of their closing submissions.

23             The Prosecution began their closing submissions in respect of

24     Mr. Pusic by stating that the Pusic Defence faced a number of dilemmas.

25             Madam Registrar, could I ask for the Sanction facility to be

Page 52725

 1     switched on.

 2             And, Your Honours, we have a PowerPoint presentation.  The first

 3     slide that we would like to present to you is an extract of the

 4     submissions made by Mr. Kruger.

 5             It appears we're having some technical problems.  I hope they can

 6     be resolved.

 7             So, Your Honours, during the course of submissions by the

 8     Prosecution, there were two assertions made.  The first, and I will

 9     quote, although I don't intend to quote from all the slides that I will

10     be presenting in the course of my address to you today, but I quote:

11             "And that brings us to the third dilemma.  Pusic's claim that he

12     had no power and authority is not based on any evidence, because he's put

13     none before the Court.  It is based only on the bare assertions of Pusic

14     in his final trial brief."

15             And at some point later in the Prosecution's submissions, it was

16     stated that:

17             "The Prosecution respectfully submits that Mr. Pusic's simple

18     assertions of his innocence, unsupported by any sworn testimony or

19     alternative evidence from him, is not sufficient to overcome these

20     dilemmas."

21             Your Honours, we submit that those remarks display a

22     misunderstanding of the burden of proof, and we will address you in due

23     course on that particular subject.

24             And, Your Honours, it is, of course, the case that Mr. Pusic did

25     not testify in this trial, that the Pusic Defence did not call any

Page 52726

 1     witnesses.  It is Mr. Pusic's right not to call witnesses, his right not

 2     to testify, a right that's enshrined in law, and we would ask you not to

 3     draw any adverse inferences from his exercise of that right.

 4             The point that we would like to emphasise is that our submissions

 5     on behalf of the Defence rests not just on bare assertions made by

 6     Mr. Pusic's lawyers, but they rest on an analysis of the evidence that

 7     has been called by the Prosecution.  Importantly, we say that this is a

 8     case where the Prosecution witnesses gave evidence that could be

 9     interpreted to support our defence.

10             And, Your Honours, I would like to begin by referring you to the

11     evidence of three of the witnesses called by the Prosecution, three

12     important witnesses.

13             The first witness, Marijan Biskic.  And may I apologise, Your

14     Honours, if I mispronounce any of the names in this case, and I do have

15     problems pronouncing the -- I'm sorry, I do have problems with the

16     pronunciation of the names in this region, Your Honour.  The lack of

17     vowels and preponderance of consonants does cause me sometimes to stumble

18     over the correct pronunciation.

19             But Mr. Biskic, he said that:

20             "He, Pusic, could not issue an order to me or to anybody else, I

21     believe."

22             Quite unequivocal.  Biskic is an important witness, somebody who

23     was familiar not only with Pusic's work, but also with the internal

24     mechanics of the HVO.  The Prosecution called him.  He was their witness.

25     They didn't challenge him on this or any other aspect of his evidence,


Page 52727

 1     and they called him as a witness of truth.  Your Honours, I will turn to

 2     the evidence of this particular witness in due course.

 3             The second important witness we would ask you to consider - and,

 4     Madam Registrar, perhaps we could just go into private session for a few

 5     moments -- is --

 6             JUDGE ANTONETTI: [Interpretation] Madam Registrar.

 7                           [Private session]

 8   (redacted)

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10   (redacted)

11   (redacted)

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13   (redacted)

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18   (redacted)

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20   (redacted)

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Page 52728











11 Page 52728 redacted. Private session.















Page 52729

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 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

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17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23                           [Open session]

24             THE REGISTRAR:  We are in open session, Your Honours.

25             MR. SAHOTA:  We submit that the analysis of these three witnesses


Page 52730

 1     can be fairly applied to every spear of activity that Mr. Pusic was

 2     involved in.

 3             Your Honours, and we don't need to remind you, as professional

 4     judges, that the Defence in this case don't have to prove anything.  All

 5     we have to show is that there is another reasonable inference available

 6     from the evidence.  And given the evidence of these three witnesses,

 7     given their testimony, we ask you to consider if the inference that Pusic

 8     had no unilateral decision-making power can be simply set aside and

 9     discarded.  We submit if you cannot set aside/discard the testimony of

10     these three witnesses, then it follows -- it follows that there must be a

11     reasonable inference that Pusic, in the words of Biskic, could not give

12     orders to him or to anyone else.

13             And, Your Honours, I also echo the words of Mr. Khan, who was

14     standing where I'm standing a few days ago, and remind him of what he

15     said to you, which is that, If there is any doubt in your minds, that

16     doubt must be exercised in favour of the accused.

17             Your Honour, we go further than just to say that we've raised a

18     reasonable doubt.  We submit that if you -- even if you are trying this

19     case on a different standard, if you are trying this case on a balance of

20     probabilities, we'd submit that you could find the facts, as interpreted

21     by us, as presented by the Prosecution, support an alternative theory,

22     and they support the theory that Pusic was a low-level civil servant who

23     had no decision-making authority.

24             Your Honours, given that the purpose of these closing addresses

25     at the end of a five-year trial are for all parties to refer to the

Page 52731

 1     relevant arguments advanced in written submissions, you may have found it

 2     surprising that the evidence of these three witnesses, which is fairly

 3     prominently highlighted in our final trial brief, was not extensively

 4     referred to by the Prosecution in the course of their oral submissions.

 5     We suggest that that is an omission -- a glaring omission that can only

 6     be explained in one way.  The Prosecution failed to address this evidence

 7     because they can't explain it, because they realise that these points

 8     represent an Achilles heel in their case, and that's why they seek either

 9     to evade or ignore it.

10             Your Honours, I hope you have before you an outline of our

11     submissions today.  In the remainder of my speech, I will move on to

12     consider what we suggest to be serious legal errors made by the

13     Prosecution in the course of their closing submissions to you.  We'll

14     then outline some general points in the nature of our defence before

15     dealing with the evidence against Mr. Pusic.  And I turn to deal with the

16     evidence related to Mr. Pusic within the framework of the two questions

17     that I outlined to you in the course of my introduction.  We'll then move

18     on, Your Honours, to look at the question of Article 7(3), command

19     responsibility, before examining issues of JCE liability, and then

20     sentencing remarks will follow.

21             In the course of the submissions made by the Prosecution last

22     week, one of the main accusations made was that the Defence had been

23     highly selective in their use of quotes.  Your Honours, my view on this

24     really originates, and my interest in this trial originates, on the

25     international criminal justice system, from my initial studies as a

Page 52732

 1     historian.  And my first degree was in history and politics, and one of

 2     the first texts that I was asked to read as a history student was a

 3     treatise on histography by a British author called E.H. Carr.  And he

 4     said, in a characteristically provocative way, that:

 5             "The belief in a hardcore of historical facts existing

 6     objectively and independently of the interpretation of the historian is a

 7     preposterous fallacy, but one which it is very hard to eradicate."

 8             Your Honours, I take the view that one can attempt to be

 9     objective, one can attempt to take the reasoned and fair view of the

10     evidence, while still coming to a firm conclusion, but it is inevitable

11     that in the course of any analysis, legal or historical, that there will

12     be some criticism that could be laid of selectivity.  Bearing this in

13     mind, it is apparent from our final trial brief that we have had the

14     luxury -- we have been in the position where we have had the luxury of

15     being able to quote extensively from the relevant witnesses.  And, Your

16     Honours, I would like to emphasise that we have done so for one simple

17     reason, and that is because we have endeavoured to make sure there can be

18     no doubt as to what was actually entered in the evidence during the

19     course of this trial.

20             And, Your Honours, the Pusic Defence does not accept the

21     Prosecution's criticism that we have simply ignored incriminating

22     material.  If you examine paragraphs 120 and 126 of our final trial

23     brief, you will see that we have addressed various aspects of the

24     testimony of Witness DZ that do not entirely advance the Pusic Defence,

25     and in due course, if there is a rebuttal, if the Prosecution do choose

Page 52733

 1     to address the points that we have raised today, it may well be that the

 2     Prosecutor chooses to highlight other remarks made by DZ to ridicule the

 3     submissions made by the Defence.  Well, that is part and parcel of

 4     adversarial proceedings.

 5             We would respectfully ask the Chamber to focus on DZ's evidence

 6     in the round, to take the rough with the smooth, because, in our

 7     submission, it's quite clear that if you do that, it's quite clear that

 8     Witness DZ considered Pusic not to be one of the main players in the HVO

 9     and not to have any decision-making powers.  In the same spirit, we would

10     ask the Chamber to examine the evidence of all the international experts

11     who testified against Mr. Pusic in the round, to look at their evidence

12     globally, because it's simply not possible to reconcile what certain

13     witnesses, Witness BB, BC and BD, say, to reconcile that with the

14     testimony of international witnesses DZ and DV.  And where there are

15     contradictions, we suggest that the Trial Chamber should give preference

16     and weight to those witnesses who had regular direct contact with

17     Mr. Pusic, whose evidence is based on their first-hand experience and not

18     on unattributed hearsay.  And, Your Honours, that is a submission that we

19     develop in more detail in paragraphs 110 to 112 of our final brief.

20             In summary, we also say this: that if you do come to the

21     conclusion that the Pusic Defence has misstated or misinterpreted the

22     evidence against Mr. Pusic, then please do not hold it against Mr. Pusic.

23             Ultimately, Your Honours, we recognise that it's up to you to

24     decide whether the conclusions that we've drawn from what we say is an

25     exhaustive and careful review of all the material, if those conclusions

Page 52734

 1     are fair, balanced, and justified, but we would ask, furthermore, that

 2     the Chamber treat the submissions that have been advanced by the

 3     Prosecution and the Defence to the same degree and level of scrutiny.

 4             We have tried to be transparent with the Trial Chamber.  We stand

 5     by every word of our final trial brief, and we say that we have presented

 6     you with a scenario that is far closer to the truth than that advanced by

 7     the Prosecution.

 8             Your Honours, at the beginning of my speech, I referred to an

 9     extract from the Prosecution's closing submissions concerning statements

10     misstating the law relating to the burden of proof.  And, Your Honours,

11     there are three legal errors in the Prosecution's opening submissions

12     that we would like to explore with you now.  The first relates to that

13     very issue, the burden of proof.

14             During the course of their closing argument, there were three

15     statements that were made that we take issue with.  The first:  The

16     Prosecution said, and I paraphrase, that the Pusic Defence has presented

17     no evidence whatsoever that could convince the Trial Chamber to come to a

18     different conclusion.  That's at transcript page 52140.  They went on to

19     say:

20             "Pusic put the Prosecution to proof and responded with a passive

21     and silent defence."

22             Transcript page 52161.  And then, and perhaps of most concern is

23     the following:

24             "The problem for Mr. Pusic is his silent and passive defence.  He

25     did not provide the Chamber with any evidence to support his

Page 52735

 1     interpretation.  The Trial Chamber has only his unsworn and untested word

 2     in the form of his final brief and perhaps his earlier 98 bis

 3     submissions."

 4             Your Honours, obvious point that arises from that, the Defence do

 5     not have to prove anything, and that's one point that the common law and

 6     civil law jurisdictions often have in common.  In France, it's recognised

 7     in Article 9 of the Declaration of the Rights of Man and of the Citizen,

 8     and in some national jurisdictions -- in the United States -- in parts of

 9     the United States, for instance, I understand that any criticism of the

10     Defence for not testifying, for not calling evidence, would be entirely

11     prohibited and would be immediate grounds for a mistrial on the basis

12     that it violates a citizen's 5th Amendment rights.

13             So, Your Honours, it's regrettable you can't trust the

14     Prosecution to accurately state and apply the law.  As far as it concerns

15     the Defence, these are basic principles of the Tribunal's jurisprudence.

16             Your Honours, the Prosecution also described another dilemma they

17     said faced the Pusic Defence, and it was stated thus :

18             "The first dilemma for the Pusic Defence, Your Honours, is that

19     the Pusic Defence has already presented all of their current arguments to

20     the Chamber previously during their 98 bis submissions in January 2008."

21             And that's transcript reference 52139.

22             Your Honours, that assertion is patently incorrect.  The

23     arguments that were presented on behalf of Mr. Pusic during the 98 bis

24     submission did not address the strengths and weaknesses of the evidence

25     against him in any respect.  In our 98 bis submissions, we simply

Page 52736

 1     asserted that there was no evidence linking Mr. Pusic to Counts 4, 5, and

 2     19 to 26 inclusive of the indictment, and there was no evidence linking

 3     him to other specified allegations within other individual counts.  And,

 4     Your Honour, this is a submission that you'll find developed in more

 5     detail in Part 2 of our final trial brief at paragraphs 32 to 36.  The

 6     remainder of our submissions focus on the law and, in particular, a

 7     discussion of JCE 3 liability.

 8             Your Honours, the third error made by the Prosecution during the

 9     course of their 98 bis submissions arises from what we say is a

10     fundamental misunderstanding of the test set out in Rule 98 bis.  The

11     Prosecution said that the Defence faced another dilemma because, as a

12     consequence of the Chamber's 98 bis finding -- Your Honour, I'll quote

13     directly:

14             "Since that time, Your Honours, the Pusic Defence has not placed

15     any alternative evidence before this court, no evidence whatsoever which

16     could convincingly persuade the Trial Chamber to come to a different

17     conclusion.

18             "The dilemma for the Pusic Defence is that the Trial Chamber must

19     therefore assess Pusic's criminal liability for the crimes he is charged

20     with on the basis of the very same evidence they have already previously

21     found sufficient beyond reasonable doubt."

22             Your Honours, I've read that extract on a number of occasions,

23     and I have to admit to you that I struggle to understand the logic behind

24     the assertion that's made.  It's an assertion that's based on the

25     following extract from the Chamber's 98 bis ruling, which states that:

Page 52737

 1             "Under Rule 98 bis, the Chamber needs only to determine whether

 2     there is evidence on the basis of which any reasonable trier of fact

 3     could enter a conviction beyond reasonable doubt.  The Trial Chamber

 4     believes that at this stage, the Trial Chamber is not to establish

 5     whether it would enter a conviction at the end of the trial, but whether

 6     it could do so."

 7             Your Honours, I don't intend to lecture you on the Tribunal's

 8     jurisprudence relating to Rule 98 bis.  We do have some slides prepared.

 9     I can summarise the position the Chamber took.  The Chamber emphasised

10     that it was not part of their duty to consider the probative value of the

11     evidence in the course of determining whether the 98 bis test had been

12     met.  The second point that was emphasised in your decision, Your

13     Honours, was that the Chamber only needs to find that there is evidence

14     supporting conviction on the basis of one mode of responsibility.  The

15     final point in respect of this particular submission is that, Your

16     Honours, in the course of your decision, it was also emphasised that

17     there is no contradiction between a decision to dismiss a 98 bis motion

18     and a judgement of acquittal, and reference is made to the decision of

19     the Appeals Chamber in Jelic - I'm grateful to Mr. Mulalic - Jelic in

20     that particular case.

21             In summary, Your Honours, we say that the decision that you took

22     in respect of our application under Rule 98 bis should have no bearing on

23     your deliberations at this particular stage of this trial.

24             Before we move on to embark on an analysis of the evidence in

25     this case insofar as it relates to Mr. Pusic, I would also like to make a

Page 52738

 1     number of preliminary points, the first of which is to clarify the

 2     general nature of our defence.

 3             Your Honours, this is not a case where we deny that Mr. Pusic

 4     signed documents or issued paperwork, and this is not a case where we

 5     challenge the authenticity of all the documents the Prosecution seek to

 6     rely on.  Where we do challenge the authenticity of any documents, we

 7     have tried to explain why it is that we object.  And, Your Honours, you

 8     will have heard how the Prosecution have attacked the other accused for

 9     often adopting what they describe as an unrealistic stance by claiming

10     that large volumes of documents were forgeries.  Well, we haven't taken

11     that approach, but it does seem, Your Honours, that the Prosecution is

12     determined to attack us nevertheless.

13             Furthermore, when we have questioned a witness's veracity, we

14     have made it clear what parts of a witness's testimony that we say are

15     unreliable.  So, for instance, in relation to witnesses Masovic,

16     Josip Praljak, or Cupina, Praljak being a case in point, is discussed at

17     paragraphs 131 to 136 of our final trial brief - we have said that there

18     are certain aspects of those individuals' testimony that we deem to be

19     unreliable, and we have explained why we take that position.  And, Your

20     Honours, as professional judges, you will know from your own experience

21     that an intelligent witness may not lie about everything because an

22     intelligent witness will know that a half lie is often more convincing

23     than an outright lie.

24             So in the case of Josip Praljak, while we don't accept the

25     veracity of everything he says, we do make it clear that when he's

Page 52739

 1     testifying about any matter that could potentially inculpate him or his

 2     colleague, Bozic, then his words should not be relied on.

 3             If I can turn now to the issue of documentary evidence.

 4             We ask you to look beyond a literal reading of the documents.  We

 5     ask you to look beyond blind acceptance of the assertions made by the

 6     Prosecution.  One of the chief distinguishing characteristics of this

 7     trial is the huge volume of documentation, and one of the striking

 8     characteristics of this particular conflict is the fact that both sides

 9     were armed with battalions of photocopiers, legions of secretaries, as

10     well as conventional weapons.  The documents that have been produced in

11     their thousands, as a consequence, don't tell the entire story without

12     further reference to the testimony of the witnesses that have been called

13     in the course of this trial.

14             It also follows, in our submission, that where there is no

15     witness testimony to corroborate the contents of a document, that that

16     document -- the contents of that document should not be taken at face

17     value.

18             So, Your Honours, we ask you to try and place the documentary

19     evidence against Mr. Pusic in the framework of the evidence, as a whole,

20     and against the background of the testimony of all the witnesses that

21     have appeared in this trial.

22             Your Honours, at paragraph 347 of our final trial brief, we alert

23     the Chamber to the fact that there are a number of other individuals who

24     feature in this case who share the same surname as Mr. Pusic, and at

25     paragraph 347 we develop that point in more detail.  Having considered

Page 52740

 1     the contents of the Prosecution's final trial brief, we have noted that

 2     on at least two instances, it appears that the Prosecution have confused

 3     Mr. Pusic with someone else.

 4             At paragraph 21 of the Prosecution's final trial brief, in an

 5     extract referring to a document P2293 regarding deportations, and at

 6     footnote 37, and also at paragraph 28 of the Prosecution's final trial

 7     brief, at footnote 51, Mr. Pusic is confused with another individual

 8     called Mile Pusic.  Another example of this can be found at paragraph 595

 9     of the Prosecution's final trial brief in connection with footnote 1389.

10     There is a mistaken reference to Mr. Pusic when it would appear that the

11     witness who is referred to therein is referring to another individual

12     called Berislav, Berislav Soldo.

13             Your Honours, these are, we suggest, important errors.  They are

14     significant because they indicate how willing the Prosecution are to make

15     assertions without checking the facts.  And they also indicate, in our

16     submission, how, in the course of this five-year marathon trial,

17     indicates how the Prosecution have lost sight of Mr. Pusic.  They have

18     been concentrating so hard on the other accused that the dot representing

19     Mr. Pusic has disappeared off the radar.

20             There was a clear example of this in October 2007.  Five months

21     after Witness BC had testified in this courtroom, the Prosecution were

22     moved to file a motion asking for that witness to be recalled, on the

23     basis that due to an oversight of counsel, an important document had not

24     been put.  And, Your Honours, you will find further information

25     concerning that particular instance in the Prosecution's motion to admit

Page 52741

 1     Exhibit P09848, dated the 23rd of October, 2007.

 2             So, Your Honours, in our submission, this is a case where the

 3     Chamber will need to subject every single assertion that the Prosecution

 4     make, in both their final brief and in their closing submissions, to a

 5     very detailed level of scrutiny.

 6             The final point in respect to this preliminary discussion.  Your

 7     Honours, we suggest that it is facile for the Prosecution to say that any

 8     defendant involved in these proceedings must have known what was going on

 9     at the time, and this is a point that was made in the course of the 98

10     submissions by the Prosecution.  And you'll find a reference at

11     transcript page 27148 to 9.  It's something that we suggest is facile

12     because obviously in a large-scale case, it's this:  Where essentially

13     the HZ-HB government and its policies are on trial.  Almost everyone in

14     the area would have known what was going on, but that shouldn't lead to

15     an assumption that everyone connected with the HVO must be guilty of war

16     crimes.

17             In essence, the Prosecution seem to be saying that, Where there

18     is smoke, there must be fire.  But in addition to smoke, there must also

19     be light.  And, Your Honours, it is our hope that our submissions shine

20     some light on the evidence and shine some light on Pusic's role in this

21     case.

22             Your Honours, I'm about to move on to another substantially

23     different part of my submissions and to begin dealing with the evidence

24     against Mr. Pusic, so perhaps this is a convenient time for us to take a

25     break.

Page 52742

 1             JUDGE ANTONETTI: [Interpretation] Very well.  This will be our

 2     last break for the day, and it will last 20 minutes.

 3                           --- Recess taken at 5.26 p.m.

 4                           --- On resuming at 5.47 p.m.

 5             JUDGE ANTONETTI: [Interpretation] We continue with our hearing.

 6             Please go ahead, Counsel.

 7             MR. SAHOTA:  Your Honours, I'd like to move on to consider the

 8     evidence relating to Mr. Pusic.  We have dealt with the evidence

 9     thematically in our brief.  However, in response to the arguments raised

10     by the Prosecution in their written arguments and in their oral

11     submissions, we propose to deal with those matters in a chronological

12     format.  And, Your Honours, we'd like to begin by examining the evidence

13     concerning the involvement of Mr. Pusic in this so-called JCE prior to

14     the 5th of July, 1993, which is an important date because, as you will be

15     aware, it's the date of his appointment as head of the Service of

16     Exchange.

17             During the course of the Prosecution's oral submissions, it was

18     stated that the Pusic Defence's submissions that the lack of any

19     evidence, the paucity of evidence concerning Mr. Pusic's contact with

20     other senior members of the so-called JCE, and the paucity of evidence

21     suggesting that he had any role in the genesis of the purported JCE

22     between 1991 and 1993, it was said by the Prosecution that those

23     submissions were irrelevant and amounted to an irrelevant red herring.

24     The words used by the Prosecution were that:

25             "The argument of not being in the JCE because he was unknown to

Page 52743

 1     some witnesses and an accused, it's an irrelevant red herring."

 2             We say that that statement is unsustainable.  You are entitled,

 3     Your Honours, to take into account the absence of any evidence of

 4     association with other alleged JCE members.  That is something that you

 5     may consider to be relevant when you decide if Mr. Pusic was a member of

 6     the JCE.  And, Your Honours, we say the fact that Mr. Pusic had no

 7     contact with Franjo Tudjman, the fact that Slobodan Praljak had never

 8     heard of him at the time the indictments were announced, and was indeed

 9     very surprised when he first heard that he had also been charged, that is

10     all relevant given the way the Prosecution put this case, because it

11     could potentially rebut any inference that Pusic was a leader or member

12     of the joint criminal enterprise.  And, Your Honours, that is an area of

13     our submissions that is described in more detail in our brief -- in our

14     final trial brief submissions at paragraphs 25 to 26 and paragraphs 15 to

15     16.

16             Moving on to take matters chronologically:  One of the earliest

17     references to Mr. Pusic is in a SIS report from late 1992, and that's

18     document P0663, dated the 28th of October, 1993.  Your Honours, you may

19     recall that that was a report of alleged misconduct involving Mr. Pusic.

20     We query if the contents of that document are relevant to the charges in

21     this particular indictment, given that the report refers to Pusic's

22     alleged activities with the Serbs, and note also, Your Honours, you may

23     recall that the Prosecution have also clarified, in the course of their

24     closing submissions, that Mr. Pusic didn't join the JCE until April 1993,

25     yet they're relying on documentation that dates back to a point far

Page 52744

 1     earlier in time in October of 1992.

 2             Your Honours, we are going to devote some time to this particular

 3     document simply because it's highlighted by the Prosecution in their

 4     closing brief at paragraphs 1026, 1193, 1247, and 1267.  Our position is

 5     that the assertions made by the Prosecution on the basis of this document

 6     are not reliable.

 7             Firstly, this document is a SIS report which is compiled on the

 8     basis of sources that are unknown.  And, Your Honours, I don't intend to

 9     belabour this point.  We have the same position that we adopted in the

10     joint Defence motion that was filed on the 7th of January, 2008, in

11     response to the documentary evidence motion filed by the Prosecution.

12             The second point that we would make in respect to this particular

13     exhibit is that this is a document that the Prosecution should have

14     tendered through a witness.  We submit the Prosecution should have

15     brought a witness to testify about these allegations, given that they now

16     form a central plank of their case against Mr. Pusic.

17             May I also clarify, Your Honours, that we do not accept any of

18     the allegations made in this document.  We say that no weight whatsoever

19     should be attached to them.  However, we will, in the course of my

20     submissions, highlight various contradictions that arise from the

21     Prosecution's reliance on this type of material.

22             One of the characteristics of the Prosecution's presentation of

23     their case, we submit, is that as with this particular document, P0663,

24     there are a number of other critical documents that were never put to

25     witnesses in this case, yet they are now given some prominence in the

Page 52745

 1     course of the final arguments, either written or oral.  It's a particular

 2     cause for concern for the Pusic Defence, given the relatively small

 3     amount of time that's been spent focusing on Mr. Pusic, and, Your Honour,

 4     it's a cause for concern that the Prosecution place so much emphasis on

 5     this type of material when it should have been, could have been, shown to

 6     a relevant witness.  And, Your Honours, the fact that it wasn't shown to

 7     a relevant witness reinforces our submissions to the effect that the

 8     Prosecution have failed to meet their evidential burden, that they have

 9     taken their eye off the ball when it comes to Mr. Pusic.  This is nothing

10     more, this document, than uncorroborated documentary hearsay.

11             And we do note that the Chamber has acknowledged in this

12     decision, in other decisions, to admit documentary evidence, that the

13     Chamber will determine how much weight to attach to this type of material

14     in its final deliberations.  At this juncture, Your Honours, we would

15     respectfully ask the Chamber to reflect on the approach taken by the

16     Trial Chamber in the case of Haradinaj.  And, Your Honours, you have on

17     the screens in front of you an extract from that trial judgement at

18     paragraph 18.  I don't intend to recite the entire contents of that

19     particular extract, save to highlight the last sentence:

20             "As a general rule, the less the Trial Chamber knew about a

21     document, the circumstances of its creation and usage, the less weight it

22     gave to it."

23             And, Your Honours, if I may also refer to the following

24     paragraph -- the next paragraph in that particular decision from the same

25     Trial Chamber, paragraph 19.  Once again, I don't intend to read out the

Page 52746

 1     entire extract, but, Your Honours, we would refer you to the approach

 2     taken by the Haradinaj Trial Chamber, where it was held that:

 3             "In general, the Trial Chamber clarified that it attached little,

 4     if any, weight to unexplained opinions and untested hearsay, and that an

 5     accumulation of such evidence did not necessarily make it stronger."

 6             The last point I wish to make about this particular document,

 7     P0663, is or relates to what you may consider, Your Honours, to be a lack

 8     of consistency in the Prosecution's approach to the weight to be attached

 9     to SIS documents in general.  We submit that when the Prosecution have

10     adduced a SIS document, when the contents of that document tends to

11     support their case, then it has followed that the Prosecution say that

12     that document is a reliable piece of evidence.  However, when, in similar

13     circumstances, the Defence have tried to rely on a SIS document, and

14     I can identify one particular instance when Mr. Karnavas presented a SIS

15     document to try and impeach the Witness Smajkic, and that's -- you will

16     find a reference to that in transcript at page 2882, there was an

17     objection raised by the Prosecution on the basis that that document may

18     have been manufactured and was not, therefore, prima facie reliable.

19     Your Honour, we say that this approach smacks of double standards.

20             Your Honours, we have no doubt that you are faced with a

21     formidable task in going through a mountain of material in the coming

22     months, and that you will go through this material and look at it with

23     great scrutiny, but we hope that you will not fall victim to the

24     Prosecution's suggestions that you find Mr. Pusic guilty based on the

25     assumption, conjecture, or speculation contained in uncorroborated

Page 52747

 1     documents such as these.  Moreover, whatever the scenario, Your Honours,

 2     I submit to you that this amounts to nothing more than a form of gossip,

 3     and gossip is too unreliable to use as a basis to convict.

 4             Your Honours, if I can pick up now the evidence in April 1993,

 5     which is a very important date, according to the Prosecution theory of

 6     the case, because it is the date when Mr. Pusic is said to enter the JCE.

 7     It's also claimed in the Prosecution's brief that in April 1993,

 8     Mr. Pusic held a commanding position with substantial authority in the

 9     Military Police Crime Prevention Department and that he was involved in

10     processing detainees and dealing with prisoners.  And, Your Honours, you

11     will find a reference to that at paragraph 1194 of the Prosecution's

12     final trial brief.  We do not dispute that the evidence shows that

13     Mr. Pusic was employed by the Military Police Crime Prevention Department

14     at that time.  However, we do submit that the Prosecution have failed to

15     show what position he held.  And we also would like to highlight the fact

16     that the documents that the Prosecution rely on to substantiate their

17     assertion that Mr. Pusic held a commanding position all pre-date -- or

18     generally pre-date April 1993, and I will comment on three of these

19     documents very briefly.

20             The first is P1605.  This is a document that we submit confirms

21     little more than the fact that Mr. Pusic was on the payroll of the

22     military police in March 1993.  It doesn't tell you what post he

23     occupied.  Furthermore, P1393 is a Crime Prevention Department report.

24     It's dated February 1993, and it merely shows that Mr. Pusic was one of

25     three military police personnel interviewing detainees held at the

Page 52748

 1     Ljubuski detention facility.  The third document is dated the 14th of

 2     October, 1992.  Your Honours, we will provide you with the reference to

 3     that document in due course.  We submit that this document does not

 4     establish, as the Prosecution allege -- does not establish that Pusic had

 5     any powers to order inmates to undertake forced labour assignments.  The

 6     document refers not to prisoners of war or to detainees in the course of

 7     the conflict, but to convicts that were held by the HVO.

 8             And, Your Honours, we also would like to put forward this

 9     proposition: that there are two recurring patterns in the Prosecution's

10     submissions that these documents highlight.  The first is that, again,

11     these three documents are now said to be very important, they are now

12     said to be central to the case against Mr. Pusic, yet they have never

13     been shown to a witness.  The second pattern that these documents reveal

14     is that they provide further evidence of the Prosecution making

15     assertions which do not stand up to any close scrutiny.

16             So, Your Honours, in respect to the evidence concerning

17     Mr. Pusic's role with the military police in April 1993 --

18             JUDGE ANTONETTI: [Interpretation] Please slow down, because the

19     French booth is lagging behind you.  So please slow down as much as

20     possible, and now please continue.

21             MR. SAHOTA:  I'll just recap, then, Your Honours, on the last

22     point that I was making, which is that:  We say that the evidence, at its

23     highest, insofar as it concerns Mr. Pusic's role and function in April

24     1993, goes to show that Mr. Pusic was employed by the military police as

25     a control officer of unspecified rank and responsibility; nothing more

Page 52749

 1     than that.

 2             Your Honours, in May 1993, the Prosecution alleged that Mr. Pusic

 3     acquired another hat, that he became a permanent liaison officer to

 4     UNPROFOR, and this is based on an order that is purportedly issued by

 5     Bruno Stojic on the 11th of May, 1993.  You'll find further particulars

 6     of that allegation at paragraph 13 of the indictment.  We submit that

 7     this assertion is patently incorrect and it has been flatly contradicted

 8     by the evidence of one of the Prosecution's own witnesses from SpaBat.

 9     That's Witness BJ.

10             Witness BJ testified that what has been described as an order

11     from Bruno Stojic did not appoint Mr. Pusic to be a permanent liaison

12     officer.  It simply put him in charge of contact with UNPROFOR in one

13     particular instance.  And, Your Honours, you can find further

14     elaboration/discussion of that point at paragraph 80 of the Pusic Defence

15     final trial brief, and we submit this is yet another instance where the

16     Chamber simply can't rely on the assertions made by the Prosecution.

17     And, Your Honours, despite the fact that this was highlighted in our

18     written final trial brief, this is not an assertion that's been retracted

19     by the Prosecution in their closing oral submissions.

20             This allegation is also a matter of concern because we submit,

21     Your Honours, that it provides an example of the Prosecution expanding

22     their case against Mr. Pusic because it's also claimed in the

23     Prosecution's final trial brief, at paragraph 1204, that Mr. Pusic's role

24     as a liaison officer was wider than that.  His dealings were restricted

25     not just to SpaBat.  Your Honours, that's an allegation that's not

Page 52750

 1     previously -- that has not been previously advanced in the Prosecution's

 2     pre-trial brief or in the course of their Rule 98 bis submissions.  So

 3     this allegation of a wider liaison role is not mentioned at all in the

 4     indictment.  Your Honours, we submit it's unfair to the accused that he

 5     should have to respond to what constitutes, in reality, a fresh

 6     allegation, an allegation that should have been particularised at an

 7     earlier point.  In summary, Your Honours, we submit that the Prosecution

 8     should not be allowed to use the indictment as a moving target.

 9             The next point in the chronology that we pick up on is the 22nd

10     of April, 1993.  That's another key date, as far as the Prosecution is

11     concerned, because they claim that from that point onwards, Mr. Pusic had

12     primary responsibility for exchanges.  And you'll find that assertion at

13     paragraph 1196 of the Prosecution's final trial brief.  That allegation

14     is based on a document, P02020, which you have before you on the

15     PowerPoint presentation, which states and relays an order from

16     Valentin Coric which states that:

17             "Mr. Pusic is charged with participating on behalf of the

18     Military Police Administration in the exchange of all arrested persons."

19             The critical word there, Your Honours, is "participating."  We

20     submit that that's a term that's entirely open to interpretation.  And,

21     Your Honours, we raise the question of whether it's reasonable to adduce

22     from this document that Pusic had primary responsibility for exchanges or

23     whether there's another reasonable inference that arises, which is that

24     Pusic was not conferred with any decision-making powers as a consequence

25     of this particular document.  Your Honours, we say that the Chamber would

Page 52751

 1     need to look at other corroborated evidence, if it exists, to see what

 2     the true significance of that order is.

 3             Your Honours, in reference to this particular allegation that

 4     Mr. Pusic had primary responsibility for exchanges, you'll note that at

 5     paragraph 288 of our final trial brief, we highlight the fact that there

 6     were a number of other HVO bodies who were also engaged in prisoner

 7     exchanges.  Most prominently and most importantly -- there were four

 8     bodies, but most importantly amongst those four bodies is the HVO

 9     Exchange Commission headed by Maric.  This is a commission - we have

10     labelled it the Maric Commission - that had been in operation and

11     existence since 1992, and it may be relevant, Your Honours, for you to

12     note that Maric was an individual, who was head of that commission,

13     attended far more sessions of the HZ-HB Cabinet than Mr. Pusic ever did.

14     And, Your Honours, that's a point that's further elaborated on in our

15     brief at paragraph 228.

16             Any examination of Mr. Pusic's role in releases and exchanges,

17     which also form one of the most important limbs of the Prosecution's

18     case, we submit, cannot be -- cannot take place without some

19     consideration of the political context at the time.  We take the position

20     that the -- that an examination of the facts reveals that decisions

21     regarding prisoner exchanges and prisoner releases, particularly

22     decisions regarding HVO policy in those areas, those decisions were taken

23     at a far higher level than Mr. Pusic's modest station.

24             And, Your Honours, we would like at this juncture to look at

25     Mr. Pusic's role in an exchange meeting that took place on the 4th of

Page 52752

 1     May, 1993, at Jablanica, because careful examination of Mr. Pusic's role

 2     in that particular event shows that his input was clearly insignificant.

 3     According to the Prosecution, this was a high-level meeting where

 4     Mr. Pusic played an important role.  And, Your Honours, we've examined

 5     this meeting.  Our submissions are outlined at paragraph 223 of our final

 6     trial brief.

 7             You may recall during the course of the Prosecution's final

 8     submissions that they played clips from two video-recordings, the first

 9     from a video, Exhibit P02187, where it was said that Mr. Pusic could be

10     seen sitting on the same table as other senior members of the BiH Army.

11     However, Your Honours, you may have noticed or you may recall that in the

12     course of that clip, there was no dispute -- there can be no dispute that

13     Pusic was only engaged in a discussion concerning the exchange of the

14     sick and wounded.  And this meeting is also important in respect of

15     Pusic's Defence because it does appear to be the first occasion when

16     Mr. Pusic comes across General Petkovic.  General Petkovic gave evidence

17     in regards to this meeting, and, Your Honours, you'll see from the

18     PowerPoint presentation screen in front of you that he made it clear, in

19     the course of his evidence, that the first time he came into direct

20     contact with Mr. Pusic was during the course of these talks.

21     General Petkovic also made it clear that his job was such that he didn't

22     have any further contact with Mr. Pusic.  And His Honour the

23     Presiding Judge, Judge Antonetti, went on to say:

24             "Very well.  Then there's no point in my asking you whether he

25     referred to Greater Croatia, et cetera, talking to you, because you said

Page 52753

 1     you hardly ever saw him, so the question doesn't arise."

 2             Your Honour, that extract from the trial record can be found at

 3     page 49799.

 4             Petkovic also gave further evidence about this meeting when he

 5     confirmed that Mr. Pusic's role was wholly insignificant, as Pusic's role

 6     was restricted to dealing with the sick and injured from Sovici and

 7     Doljani.  And, Your Honours, you'll find the reference to that would be

 8     transcript record page 49501.  Your Honours, we submit that

 9     General Petkovic had no reason to lie and no reason to minimise

10     Mr. Pusic's role at that particular meeting.

11             The Prosecution say that this was a high-level meeting, but, on

12     the contrary, General Petkovic makes it clear that Mr. Pusic's presence

13     was not considered significant by him.

14             The Chamber may also recall that the same footage from that

15     particular video also contains footage of a dispute between a

16     representative of the HVO, Bagaric, and General Halilovic.  There was a

17     heated discussion, and it's clear from that that Mr. Pusic does not

18     feature prominently in that exchange.  And, Your Honours, if you -- if

19     you were to examine the Exhibit P02187, between -- from 3:31 to 4:20 or

20     transcript pages 1 to 32 relating to the same exhibit, you would find

21     that there is very little, if no reference to Mr. Pusic in the contents

22     of that particular document.

23             The second video that the Prosecution relied in the course of

24     their submissions concerning the 4th of May meeting in Jablanica was

25     Exhibit P0999.  In the course of that video, you may recall that the

Page 52754

 1     Prosecution highlighted a reference to Mr. Pusic from a television

 2     journalist, where Mr. Pusic was described as a negotiator.  Now, Your

 3     Honours, we don't necessarily agree that Mr. Pusic was a HVO

 4     representative or negotiator, but even if it was -- even if he was, it

 5     does not follow that he necessarily had decision-making powers.

 6             Your Honours, it's up to the Trial Chamber to decide what the

 7     truth is beyond reasonable doubt, but we would ask you to take heed of

 8     the careful forensic approach taken by the Milutinovic Trial Chamber when

 9     determining the significance and weight to be attached to evidence

10     concerning Milutinovic's participation in numerous meetings.  I'm not

11     saying that there were any obvious parallels that can be drawn between

12     the case against Mr. Milutinovic and that against Mr. Pusic.  I would

13     only merely suggest that the forensic approach taken by the Milutinovic

14     Trial Chamber should be adopted in this case.

15             At paragraph 25 of the Milutinovic trial judgement, the

16     Trial Chamber noted that Mr. Milutinovic had given two morale-boosting

17     speeches at meetings that he'd attended.  However, in the Trial Chamber's

18     view, his conduct did not constitute a significant contribution to the

19     joint criminal enterprise.  Nor did the Milutinovic Trial Chamber take

20     the view that Milutinovic's conduct at other meetings had a substantial

21     effect on the commission of other crimes.  And, Your Honours, if I can

22     refer you to paragraph 281 of the Milutinovic trial judgement, there is

23     further reference to Milutinovic's conduct in providing a number of

24     morale-boosting speeches to officials, and the trial judgement reads

25     that:

Page 52755

 1             "These two factors on their own, however, in the context of such

 2     a large case with a multiplicity of players, cannot be said to have had a

 3     substantial effect on the commission of the crimes of displacement which

 4     were committed from late March 1999 onwards."

 5             I would like to turn now to discuss the evidence concerning the

 6     events in Mostar that took place between the 7th and 9th of May, 1993.

 7     The evidence indicates that Mr. Pusic was still employed by the military

 8     police at this time.  If we accept the testimony of Josip Praljak,

 9     Mr. Pusic's role in the arrest and detention of Muslim residents in

10     Mostar, and their delivery to the Heliodrom, was restricted to their

11     release or to the release of some of the detainees interned between those

12     dates and thereafter in the course of May.

13             Josip Praljak testified that Pusic would regularly telephone him

14     with lists of detainees to be released.  The Prosecution seek to draw the

15     inference from that testimony that Pusic had the power to decide who

16     could be released.  We question whether that is the only reasonable

17     inference that can be drawn from Josip Praljak's evidence, given that

18     Praljak had no knowledge of the internal procedures that Pusic had to

19     follow.  And we submit that even if this evidence is taken at its

20     highest, even if Praljak is accepted as credible on this issue, all the

21     evidence shows is that Pusic transmitted lists, lists containing names of

22     detainees to be released, from the military police to Mr. Praljak.  And,

23     in any event, even if you were to find that Mr. Pusic was involved in

24     expediting the release of these detainees, we submit that Mr. Pusic acted

25     entirely correctly in doing so.

Page 52756

 1             And if I may refer the Chamber to Josip Praljak's testimony on

 2     this point in relation to a document P02260.  This is a note prepared by

 3     Stanko Bozic, recording a call from Pusic, with a request for the release

 4     of detainees held at the Heliodrom.  In responses to questions from His

 5     Honour Judge Antonetti, Josip Praljak confirms that the people that had

 6     been detained at this time at the Heliodrom had no place there and should

 7     have been released.  To be more precise, he's asked:

 8             "What I'm saying is, if Mr. Pusic acted as is written down in the

 9     Official Note, was that the right decision when he said --"

10             JUDGE ANTONETTI: [Interpretation] Mr. Praljak, what is the

11     problem?

12             THE ACCUSED PRALJAK: [Interpretation] Your Honours, could

13     everyone please say "Josip Praljak," because later on a confusion might

14     arise, because there's Slobodan Praljak and there's Josip Praljak.

15             MR. SAHOTA:  I apologise to General Praljak.  I'll try and take

16     heed of his observation.

17             Josip Praljak testified, in response to the question from His

18     Honour Judge Antonetti, that:

19             "Well, not only those people, but none of the other people either

20     should have been there."

21             He was then asked:

22             "And then you testified that the people left Heliodrom very

23     quickly after that, these people?"

24             He answered:  "Yes."

25             Your Honours, the evidence shows that almost all those civilians

Page 52757

 1     that were detained between the 7th to the 9th of May, 1993, were released

 2     by the end of that month.  Subsequent to that, subsequent to the events

 3     of the 7th to the 9th of May, there were meetings, a number of

 4     negotiations between HVO and BiH representatives that continued until the

 5     end of June.  In our final brief, we have examined the evidence

 6     concerning Mr. Pusic's role at these meetings, and we submit that

 7     although Mr. Pusic may have been present at some of these exchange

 8     meetings, the facts of his involvement do not support the Prosecution's

 9     case that he had primary responsibility for prisoner exchanges.  Indeed,

10     the evidence indicates that at the high-level meetings that took place

11     after the 12th of May, 1993, meetings that were to arrange the release of

12     those Muslims arrested in Mostar and other issues such as humanitarian

13     aid, the evidence suggests that General Petkovic and Halilovic were the

14     main negotiators until Delic replaced Halilovic in June 1993.

15             Your Honours, we also submit that there is a valid distinction to

16     be made between high-level negotiations that were taking place at this

17     time and low-level talks that were also occurring, and the distinction is

18     one that is identified by the Prosecution Witness Watkins and also by

19     Prosecution Witness Masovic.  Our case is that Mr. Pusic was involved

20     primarily in low-level talks, where he dealt with lower-ranking BiH

21     officials such as Alikadic.  And, Your Honours, we have developed those

22     submissions in more detail at paragraphs 56 to 58 of our final trial

23     brief and also at paragraphs 74 to 81.  But there is one point that

24     highlights our submissions, and this is the fact that there is no

25     evidence that Mr. Pusic attended any of the highest-level talks in Geneva

Page 52758

 1     throughout 1993 or any of the highest-level talks in Sarajevo, talks that

 2     normally took place at Sarajevo Airport.

 3             Your Honours, any discussion of exchange negotiations in 1993

 4     must also include some reference to political machinations occurring at

 5     the various highest diplomatic and political levels.  We submit that

 6     there is very little evidence to link Mr. Pusic to key events and

 7     meetings at those levels throughout the entire indictment period.  There

 8     is, for instance, no link between Mr. Pusic and the talks that took place

 9     on the 20th of July, 1993, between Galbraith and Boban, and on the same

10     date, Izetbegovic issues a decision for the release of all captured

11     soldiers and civilians.  And, Your Honours, that's a point that is

12     developed at paragraph 243 of our final trial brief.  There's also no

13     link between Mr. Pusic and the joint agreement signed by Tudjman and

14     Izetbegovic on the 14th of September, 1993, one of the major milestones

15     in the course of the negotiations between the HVO and the ABiH during the

16     course of that summer.

17             It's also relevant to note, we submit, that on the following day,

18     on the 15th of September, 1993, Mate Boban issues an order to ensure that

19     the conditions at the detention centres run by the HVO are compatible

20     with the requirements of International Humanitarian Law.  The order also

21     requires ICRC to have access to all facilities.  What is particularly

22     relevant about this order is -- as far as the Pusic Defence is concerned,

23     is the fact that it's not circulated to Berislav Pusic.  And again, Your

24     Honours, we would refer you to paragraphs 240 and 243 of our final trial

25     brief.  The document in question is P5104.

Page 52759

 1             One of the Prosecution's main witnesses in relation to

 2     Mr. Pusic's role concerning prisoner release and exchanges is Cupina.

 3     Cupina claimed that Pusic was the Alpha and Omega of release and exchange

 4     matters, and that's a quote, Your Honours, that's cited in the

 5     Prosecution's final trial brief at paragraph 1209, and it's a quote that

 6     was repeated in the course of -- it's repeated in the course of their

 7     closing submissions, and that's transcript reference 44908.

 8             Cupina's evidence is dealt with in our trial brief at paragraphs

 9     188 to 197, and we've dealt with his evidence in some detail.  In

10     summary, we say that his testimony is incapable of belief.  And we note

11     that the Chamber has already recognised that they have reservations about

12     his credibility that may seriously affect the reliability of his

13     testimony, and we rely on a decision rendered by the Trial Chamber on the

14     3rd of November, 2006, in response to a request from the Defence for

15     General Praljak.  Your Honours, we suggest that no weight should be given

16     to the evidence of Mr. Cupina.

17             Your Honour, in relation to events before the 5th of July, the

18     last document that I want to refer to briefly is P02546.  This was

19     referred to in the course of the Prosecution's closing oral submissions,

20     and that reference can be found at transcript page 52148.  The document

21     is a report on the activities of the HVO military police, dated the 28th

22     of May, 1993.  It records that an order had been received from

23     Berislav Pusic and Coric to transfer the prisoners to the prisons on the

24     Heliodrom.  In their interpretation of this document in their closing

25     submissions, the Prosecution put Mr. Coric and Mr. Pusic on the same

Page 52760

 1     footing, and, Your Honours, we highlight that because we suggest and

 2     submit it's important for the Trial Chamber to know that there are

 3     contradictions in both the Prosecution's final brief and in their closing

 4     arguments in regard to what they claim the positions are taken by each of

 5     the co-accused, and we raise the question of whether the only inference

 6     that can be drawn from this document is the inference that Mr. Pusic had

 7     decision-making authority, or whether there is any other reasonable

 8     inference available from this material; namely, that Mr. Pusic's role was

 9     restricted to that of a messenger in this scenario.

10             I would now like to move on to the second phase of our

11     submissions, which deals with the evidence concerning events after the

12     5th of July, 1993, which is the date that Mr. Pusic is appointed head of

13     the Service of Exchange.  Your Honours, if I could briefly make a general

14     observation about the Service of Exchange and also the 6th of August,

15     1993, commission.

16             Our position is that Mr. Pusic had no de jure or de facto powers

17     arising as a consequence of either appointment.  The titles that he was

18     given may sound grand, but we would remind you of a quote from

19     George McGovern, the American politician, who said that:

20             "The longer the job title, the less important the job."

21             Your Honour, the Service for Exchange was conceived on the 5th of

22     July, 1993, and we submit that from that very moment onwards, there is no

23     evidence that Mr. Pusic was conferred with any de jure authority over any

24     limb of the HVO military apparatus, that he had no de jure authority over

25     any military personnel as a consequence of that appointment, and, Your

Page 52761

 1     Honours, we also submit that the evidence suggests that the Service for

 2     Exchange was not part of the civilian structure either.  The evidence

 3     does not show that the Service for Exchange was required to report to the

 4     HVO HZ-HB Cabinet, and that's a point that we have outlined at

 5     paragraph 85 of our closing submissions.  The evidence does not show

 6     that, as a consequence of his appointment to the Service for Exchange,

 7     Mr. Pusic was subordinated and required to report to Jadranko Prlic.  The

 8     evidence suggests that the Service for Exchange was a stand-alone body,

 9     and we say that that conclusion is entirely consistent with its role as a

10     service providing technical advice.

11             It was the Prosecution's expert, Tomljanovich, who confirmed that

12     the Service for Exchange's remit was strictly defined at the time it was

13     created, and it was strictly defined, in his words, so that the service

14     was:

15             "... charged with providing the technical support for the HVO

16     HZ-HB, in particular the Commission for Exchange of Prisoners and Other

17     Persons ."

18             Your Honours, it's up to you to decide if you consider our use of

19     a selective quote from the Prosecution's own expert to be unfair.

20             Turning now to the 6th of August, 1993, commission, this is

21     another important moment in the Prosecution's case.  The Prosecution

22     allege that as a consequence of this appointment, Mr. Pusic began

23     releasing detainees.  And, Your Honours, you'll find a reference to that

24     at paragraph 595 of the Prosecution's final trial brief.  The Prosecution

25     also contend that Mr. Pusic's appointment amounts to a natural expansion

Page 52762

 1     of his role.  Further elaboration of that can be found at paragraph 1202

 2     of the Prosecution's final trial brief.  During their oral closing

 3     submissions, the Prosecution said as follows:

 4             "Bruno Stojic, he placed the responsibility and power to release

 5     and exchange prisoners upon Mr. Pusic's shoulders when he set up the

 6     commission on the 6th of August, 1993.  And that's Exhibit P03995.

 7     Mr. Pusic exercised this responsibility throughout the rest of 1993.  He

 8     often did this without following the outlined procedures, as we have

 9     seen, of engaging with the SIS and military police concurrence or

10     involving other commission members."

11             Your Honours, that's transcript reference 52156.

12             Your Honours, we submit that the evidence of Josip Praljak points

13     to the fact that the commission never took effect and existed only on

14     paper.  Josip Praljak gave evidence about his role in the commission,

15     because he was appointed as one of its five members, and said as follows.

16     He was asked:

17             "But let me go back.  When you received this order," this is an

18     order notifying him of his appointment to the commission, "you said that

19     you talked to Mr. Pusic over the telephone about the work of that

20     commission and that Mr. Pusic said, 'We'll do the work.'"

21             He answered:  "Yes."

22             "After that, had you no further contact with Mr. Pusic in respect

23     to this commission, did you, nor do you mention this in your diary at

24     all?  I find no entry to that effect."

25             He answered:  "No, we never had a meeting."

Page 52763

 1             And that's transcript reference 14974.

 2             Josip Praljak went on to say that he had no further contact with

 3     Mr. Pusic regarding the work of the commission and that Mr. Pusic never

 4     wrote to him concerning the commission.  Praljak continued and confirmed

 5     that he never spoke to or met with any other members of the commission in

 6     an official capacity.  And, Your Honours, that's a point that we've

 7     explored in further detail at paragraph 96 of our final trial brief.

 8             Other factors that the Trial Chamber may wish to take into

 9     account when considering what weight to attach to this evidence

10     concerning the commission relates to the absence of any documentation

11     produced by it and to the fact that the commission is never referred to

12     in any HVO HZ-HB Cabinet meetings.  And, Your Honours, that is a point

13     that we have outlined at paragraphs 100 to 103 of our final trial brief.

14             It's also interesting to note that the Prosecution's position on

15     the 6th of August commission seems to be somewhat contradictory.  At

16     paragraph 319 of the final trial brief, the Prosecution assert that:

17             "In fact, Pusic's commission never convened, a fact commission

18     member made known to Stojic."

19             Your Honours, it's not clear, in light of that reference, whether

20     the Prosecution agree with the submissions advanced by the Defence, that

21     the commission never functioned at all, or whether they don't.  It's also

22     correct to say that the Prosecution never challenged the evidence of

23     Josip Praljak on this point.  We submit the Prosecution can't have it

24     both ways and that this evidence goes to show, once again, that the

25     Prosecution have failed to discharge their evidential burden, that they

Page 52764

 1     have taken their eye off their ball when they're dealing with Mr. Pusic.

 2             On the 12th of August, 1993, the Prosecution allege that

 3     Mr. Pusic prepared a proposal concerning the work of the commission, and

 4     this document is Exhibit P04141, and it's a document that's referred to

 5     in the indictment at paragraph 17.6(G).  Your Honours, we don't intend to

 6     dwell on this particular document, because we say that far too much

 7     significance has been given to it by the Prosecution.  It is just a

 8     proposal.  There is no evidence that proposal was ever acted on.  This

 9     document does not, in our submission, establish that Pusic had any

10     decision-making powers.  And, Your Honours, a review of the evidence

11     concerning, for instance, the categorising and cataloging of prisoners

12     suggests that there were other HVO bodies that were actually responsible

13     for those tasks.

14             Concerning prisoner exchanges in the latter half of 1993, there

15     are two inter-connected limbs of the Prosecution's case that we would

16     like to address.

17             At paragraph 1249 of the Prosecution's final trial brief, it said

18     that Mr. Pusic obstructed and frustrated exchanges, and one of the ways

19     he is alleged to have achieved this is through advocating -- insisting on

20     "one for one" exchanges.  We will deal with the wider allegation of

21     obstruction first.

22             And, Your Honours, may I ask that we go into private session.

23             JUDGE ANTONETTI: [Interpretation] Yes, Madam Registrar.

24                           [Private session]

25   (redacted)


Page 52765











11 Page 52765 redacted. Private session.
















Page 52766

 1                           [Open session]

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

 3             MR. SAHOTA:  Our submissions in respect of "one for one"

 4     exchanges are outlined in detail in our final trial brief at paragraphs

 5     62 to 70.  In short, we say that the evidence demonstrates that both

 6     sides had fluid negotiating positions when it came to discussing the

 7     terms of prisoner exchanges.  And this is a submission that we haven't

 8     ventilated in our final trial brief, but our argument, Your Honours, is

 9     that both sides in these negotiations contributed to their failure, and

10     thus it is, therefore, unfair to attribute responsibility to Mr. Pusic,

11     particularly in light of evidence that suggests that he had no unilateral

12     powers, that he was simply passing on instructions from above.  Your

13     Honours, in this respect we refer you to the approach taken by the

14     Milutinovic Trial Chamber when considering Milutinovic's responsibility

15     for the collapse of negotiations.  Again, I'm not drawing any parallels

16     between the two cases, but respectfully drawing your attention to an

17     approach that was taken when examining evidence by another Trial Chamber.

18     The judgement states:

19             "Addressing his contribution first, the Chamber is of the view

20     that a number of examples of Milutinovic's participation in the joint

21     criminal enterprise alleged by the Prosecution have not been proved

22     beyond reasonable doubt.  For example, the Chamber found that, during the

23     negotiations between Kosovo Albanians and the FRY/Serbian authorities,

24     all sides contributed to their failure.  As a result, the Chamber was

25     unable to find that Milutinovic obstructed the negotiating process."

Page 52767

 1             And that's paragraph 274.

 2             The Prosecution try and link Mr. Pusic's role in prisoner

 3     exchanges and releases with their claim that at the heart of the JCE lay

 4     the desire to ethnically cleanse parts of Bosnia-Herzegovina.  And, Your

 5     Honours, they make this allegation a number of different ways, using very

 6     imaginative and fluid language.  In paragraph 1231 of the Prosecution's

 7     final trial brief, it said that Mr. Pusic is a demographic engineer who

 8     had the power to give permission for people to depart.  At paragraph 1243

 9     of the final trial brief, it said that Mr. Pusic launched a deportation

10     scheme with Valentin Coric.  And there are a number of other variations

11     on this theme, as if reformulation and repetition will improve the

12     Prosecution's case.

13             Our position is that while Mr. Pusic may have had some

14     involvement in issuing discharge letters for some, but not all, detainees

15     in this time-frame in the latter half of 1993, the evidence does not show

16     that Mr. Pusic had any say in determining where those detainees went

17     after they left custody.  In particular, we submit that the Prosecution

18     has failed to prove beyond reasonable doubt that Mr. Pusic had any

19     involvement in issuing letters of guarantees or transit visas for those

20     leaving HVO detention.

21             In our final trial brief at paragraphs 151 to 154, we have

22     examined the evidence as to who was actually responsible for issuing

23     transit visas and letters of guarantee, and I do not intend to rehash

24     those submissions here.  I will, however, refer the Chamber to the

25     evidence of Josip Praljak which we submit shows that Mr. Pusic's role was

Page 52768

 1     strictly limited to checking whether a detainee had the approval of SIS

 2     and the CPD before he could issue a discharge letter.

 3             At transcript reference 14713, and unfortunately we don't have a

 4     slide for this quote, Josip Praljak was asked:

 5             "What approvals were required, to your knowledge, to have a

 6     prisoner release from the Heliodrom in July/August 1993?  You can just

 7     walk us through whatever steps were taken, if you can help us, please."

 8             "The document that would reach us in the prison was formulated

 9     like this, approximately.  There is no reason to hold the prisoner of war

10     such and such, and it would be signed by Miroslav Music on behalf of the

11     SIS and Vidovic on behalf of the Crime Investigation Service.  They would

12     issue approvals enabling Mr. Pusic to release somebody.  I believe

13     without these two signatures above, Mr. Pusic would have been unable to

14     release anyone."

15             Your Honours, that's a transcript reference that can be found at

16     paragraph 303 of our final trial brief.

17             You may also recall, Your Honours, that you heard from another

18     witness, Vidovic, who confirmed that the Crime Prevention Department had

19     to issue a certificate certifying that they had no objection to the

20     release of a detainee.  And, Your Honours, that reference can be found at

21     transcript pages 51690.

22             Your Honours, in the course of their closing submissions, the

23     Prosecution referred to a number of documents emanating from the SIS

24     service that they claim prove that Mr. Pusic had the power to order

25     releases unilaterally without obtaining consent from SIS and the CID.


Page 52769

 1     I'd like to consider one of these documents.  The first document is

 2     P6170.  This is a document that doesn't emanate from SIS.  It's a report

 3     from Josip Praljak, where he acknowledged that he was mistaken in his

 4     evidence concerning Pusic's role in the release of a number of detainees.

 5     Your Honours, Josip Praljak's evidence can be found at transcript

 6     reference 14980, and our submissions are outlined in our final trial

 7     brief at paragraph 312.

 8             The second document the Prosecution referred to, again, is not a

 9     SIS document.  It's a newspaper article dated the 19th of October, 1993,

10     and that's Exhibit reference P5945.  In the course of this article, Pusic

11     is said to contrast his powers to make decisions on prisoner exchanges

12     with that of his BiH counterparts, who had no such powers.  Your Honours,

13     you may find it interesting to contrast, yourselves, what Pusic says

14     about the extent of his own influence in that interview, P5945, with what

15     another witness says.

16             If I may ask, Your Honours, for the Chamber to go into private

17     session.

18             JUDGE ANTONETTI: [Interpretation] Yes.  Madam Registrar.

19                           [Private session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 52770

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 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16                           [Open session]

17             JUDGE ANTONETTI: [Interpretation] I'd like to thank Madam

18     Registrar.

19             We will continue with Mr. Pusic's closing arguments tomorrow

20     morning.  We begin at 9.00.

21             Until then, I wish you all a nice evening.

22                           --- Whereupon the hearing adjourned at 6.57 p.m.,

23                           to be reconvened on Thursday, the 24th day of

24                           February, 2011, at 9.00 a.m.