1 Tuesday, 4 December 2012
2 [Appeals Judgement]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 3.00 p.m.
6 JUDGE GUNEY: [Interpretation] Good afternoon, everyone.
7 Mr. Registrar, could you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case
9 number IT-98-32/1-A, the Prosecutor versus Milan Lukic and Sredoje Lukic.
10 JUDGE GUNEY: [Interpretation] Thank you.
11 Milan Lukic, can you follow the proceedings in a language you
13 THE APPELLANT M. LUKIC: [Interpretation] Yes, I can.
14 JUDGE GUNEY: [Interpretation] Thank you.
15 Mr. Sredoje Lukic, can you follow the proceedings in a language
16 you understand?
17 THE APPELLANT S. LUKIC: [Interpretation] I can, Your Honour. I
18 can follow perfectly well.
19 JUDGE GUNEY: [Interpretation] Thank you very much. Sit down.
20 I would now like to ask the parties to identify themselves,
21 starting with the counsel for the Prosecution.
22 MS. MONCHY: Good afternoon, Your Honours. Virginie Monchy
23 appearing today for the Prosecution, together with Kyle Wood,
24 Matthew Gillett, and Matthew Cross, and our case manager, Colin Nawrot.
25 Unfortunately, Peter Kremer, the chief of the Prosecution appeals
1 division, is not able to be present this afternoon, as he's currently
2 recovering from heart surgery. And Mr. Kremer has asked me to convey his
3 apologies to Your Honours. Thank you.
4 JUDGE GUNEY: [Interpretation] Thank you.
5 Could now the counsel for Mr. Milan Lukic identify themselves.
6 MR. VISNJIC: Good afternoon, Your Honours. Tomislav Visnjic and
7 Dan Ivetic on behalf of Mr. Milan Lukic.
8 JUDGE GUNEY: [Interpretation] Thank you.
9 I turn now to counsel for Mr. Sredoje Lukic.
10 MR. CEPIC: Good afternoon, Your Honours. On behalf of the
11 Sredoje Lukic Defence team, myself, Djuro Cepic, as lead counsel; on my
12 left-hand side is Mr. Jens Dieckmann as co-counsel; and on my right-hand
13 side is Professor Knoops as our legal consultant. Thank you very much.
14 JUDGE GUNEY: [Interpretation] Thank you very much.
15 As indicated in the Scheduling Order of 12 November 2012, the
16 Appeals Chamber will deliver its judgement in this case today. Following
17 the practice of the Tribunal, I will not read out the text of the
18 judgement, except for the disposition. Instead, I will summarise the
19 issues on appeal and the findings of the Appeals Chamber. This summary
20 also does not constitute any part of the official and authoritative
21 judgement of the Appeals Chamber, which will be distributed to the
22 parties at the close of this session.
23 The events underlying this appeal took place in the region of
24 Visegrad in Bosnia-Herzegovina between 1992 and 1993. For a period in
25 1992, Milan Lukic lived in Visegrad town; Sredoje Lukic, his cousin, was
1 a police officer assigned to the town of Visegrad. In its judgement of
2 20th July 2009, the Trial Chamber found Milan Lukic guilty of committing
3 persecution, murder, extermination, and other inhumane acts as crimes
4 against humanity, as well as murder and cruel treatment as violation of
5 the laws or customs of war in relation to six distinct incidents: In the
6 Drina River incident, Milan Lukic was found guilty of having shot at
7 seven Muslim civilians, killing five of them; in the Varda factory
8 incident, Milan Lukic was convicted for having executed seven Muslim
9 civilians; in the Pionirska Street incident, he was found guilty of
10 having sequestered at least 66 Muslim civilians in the house of
11 Adem Omeragic on Pionirska Street and setting it ablaze, killing 59
12 people; in the Bikavac incident, he was found criminally responsible for
13 having sequestered approximately 60 Muslim civilians in a house in
14 Bikavac and set it ablaze, killing at least 60 people and seriously
15 injuring the sole survivor; he was also found guilty of having shot and
16 killed Hajra Koric, a Bosnian Muslim civilian, and for having regularly
17 beaten detainees at Uzamnica camp from June 1992 until the beginning of
18 1993. He was sentenced to life imprisonment.
19 The Trial Chamber convicted Sredoje Lukic of aiding and abetting
20 the crimes committed during the Pionirska Street incident, except for
21 extermination, and for having beaten detainees at Uzamnica camp. He was
22 sentenced to 30 years' imprisonment.
23 Milan Lukic set forth eight grounds of appeal, seeking the
24 reversal of all his convictions or alternatively a reduction of his
1 Sredoje Lukic presents 15 grounds of appeal, seeking the reversal
2 of all of his convictions or, alternatively, a reduction of his sentence.
3 The Prosecution raises two grounds of appeal in relation to the
4 convictions of Sredoje Lukic and requests that his sentence be increased.
5 The Appeals Chamber heard oral submissions of the parties on 14
6 and 15 September 2011. I start with the appeals of Milan Lukic followed
7 by the appeals of Sredoje Lukic and then the ones of the Prosecution.
8 In relation to ground seven of Milan Lukic's appeal regarding
9 alleged fair trial rights violations, the Appeals Chamber finds that
10 Milan Lukic has failed to demonstrate that the Trial Chamber erred in
11 concluding that he had adequate time and facilities to prepare his
12 defence before trial and that it unduly restricted his defence. However,
13 the Appeals Chamber finds that the Trial Chamber did not adequately
14 assess any impact of some of the Prosecution witnesses' involvement with
15 the Women Victims of War Association on their credibility, and
16 accordingly finds that it failed to provide a reasoned opinion in this
17 respect. The Appeals Chamber has evaluated any impact of the witnesses'
18 involvement with this association when addressing other challenges
19 related to these witnesses.
20 In relation to grounds one and two of his appeal, the Appeals
21 Chamber rejects Milan Lukic's challenges to the Trial Chamber's finding
22 that his alleged alibi for the Drina River and Varda factory incidents
23 was not reasonably possibly true. Further, the Appeals Chamber considers
24 that the Trial Chamber did not err in allowing in-court identification
25 per se. However, the Appeals Chamber recalls that little or no weight
1 should be given to this evidence.
2 With regard to the identification of Milan Lukic at the
3 Drina River and Varda factory incidents, the Appeals Chamber notes that
4 the Trial Chamber mainly relied on the witnesses' prior knowledge of
5 Milan Lukic and that the inconsistencies in their accounts are minor. In
6 relation to Milan Lukic's challenges to the Trial Chamber's finding
7 regarding the victims, the Appeals Chamber finds that Milan Lukic has
8 failed to show that the Trial Chamber erred in finding that the only
9 reasonable inference was that the victims were dead. As for his
10 convictions for committing the murders of five persons at the Drina
11 River, Milan Lukic -- the Appeals Chamber finds that by participating
12 physically in the material elements of the crime of murder, Milan Lukic
13 is criminally responsible for the murders. Milan Lukic's convictions are
14 therefore upheld.
15 In relation to Milan Lukic's fifth ground of appeal, the Appeals
16 Chamber finds that any inconsistencies in the identification evidence
17 were minor and that the Trial Chamber did not err in identifying
18 Milan Lukic as the perpetrator of the murder of Hajra Koric. This ground
19 of appeal is dismissed.
20 With respect to Milan Lukic's third ground of appeal on the
21 Pionirska Street incident, the Appeals Chamber finds that the
22 Trial Chamber correctly held that the alibi was not reasonably possibly
23 true, that the witnesses identified him during the incident, and that
24 Milan Lukic started the fire at the Omeragic house. However, the Appeals
25 Chamber finds that the Trial Chamber erred in concluding that 59 persons
1 died in the fire and finds instead that 53 persons were killed.
2 In relation to ground four of Milan Lukic's appeal brief, the
3 Appeals Chamber finds that the Trial Chamber did not err in finding that
4 the fire during that Bikavac incident occurred, that Milan Lukic was
5 identified during this incident, and that at least 60 victims died in the
6 fire. This ground of appeal is dismissed in its entirety.
7 In relation to the crime of extermination, the Appeals Chamber is
8 satisfied that the Trial Chamber did not err in finding that the killings
9 at the Pionirska Street incident and of at least 60 victims at the
10 Bikavac incidents met the massiveness requirement of extermination. The
11 limited reduction by the Appeals Chamber of the number of victims does
12 not affect this conclusion. Furthermore, the Appeals Chamber finds,
13 Judge Morrison dissenting, that the Trial Chamber did not err in taking
14 into consideration the type of victims and population density of their
15 area of origin when assessing the requirement of massiveness.
16 Consequently, the Appeals Chamber upholds Milan Lukic's convictions of
17 committing extermination as a crime against humanity during the
18 Pionirska Street and Bikavac incidents.
19 In his sixth ground of appeal, Milan Lukic argues that the
20 Trial Chamber erred in the assessment of his partial alibi for crimes
21 committed in Uzamnica camp, claiming that he was imprisoned in Serbia
22 from April 1993 until late 1994. However, even if the alibi documents
23 show that Milan Lukic was imprisoned in Serbia during that period, they
24 do not undermine his conviction since the time-period covered does not
25 overlap with his convictions for beatings of detainees in the Uzamnica
1 camp between June 1992 and early 1993. Therefore, the Appeals Chamber
2 upholds his conviction for other inhumane acts and persecutions as crimes
3 against humanity and cruel treatment as a violation of the laws or
4 customs of war in relation to the events that occurred at the Uzamnica
6 Finally, the Appeals Chamber dismisses Milan Lukic's submissions
7 relating to sentencing.
8 I will now address Sredoje Lukic's and the Prosecution's appeals.
9 The Trial Chamber found Sredoje Lukic guilty in relation to
10 crimes committed at the Uzamnica camp and the Pionirska Street incident.
11 With regard to the Pionirska Street incident, it specifically found that
12 on or about 14 June 1992, Sredoje Lukic was among a group of armed men
13 present at the house of Jusuf Memic, or the Memic house, where at least
14 66 civilians from the village of Koritnik were held, robbed at gunpoint,
15 and subjected to other criminal acts. Subsequently, Sredoje Lukic came
16 back with a group of armed men and transferred the civilians from the
17 Memic house to the nearby Omeragic house, which was later set on fire by
18 Milan Lukic, killing a large majority of those detained in it.
19 Sredoje Lukic was found to have been armed and present at the Memic house
20 and during the transfer of the victims. The Trial Chamber found
21 Sredoje Lukic guilty of aiding and abetting persecutions and other
22 inhumane acts as crimes against humanity, and cruel treatment as a
23 violation of the laws or customs of war. It further found him guilty, by
24 majority, of murders both as crimes against humanity and violations of
25 the laws or customs of war.
1 In grounds one through six of his appeal, Sredoje Lukic
2 challenges the Trial Chamber's assessment of the witnesses who testified
3 that he was present at the Memic house and during the transfer of the
4 victims to the Omeragic house. In relation to Sredoje Lukic's presence
5 at the Memic house, the Appeals Chamber, Judge Morrison dissenting, finds
6 no error and upholds his convictions for aiding and abetting persecutions
7 and other inhumane acts as crimes against humanity and cruel treatment as
8 a violation of the laws or customs of war.
9 In relation to his presence at the transfer to the Omeragic
10 house, the Appeals Chamber, Judges Guney and Morrison dissenting, also
11 finds that the Trial Chamber did not err in finding him present and in
12 holding that by his armed presence at the Memic house and his
13 participation in the transfer, Sredoje Lukic aided and abetted the
14 murders at the Omeragic house by providing practical assistance. While
15 the Trial Chamber erroneously failed to make a finding as to whether
16 Sredoje Lukic's acts had a substantial effect on the commission of the
17 crimes, the Appeals Chamber finds that this error does not invalidate the
18 trial judgement.
19 In relation to his eighth ground of appeal regarding Uzamnica
20 camp, Sredoje Lukic submits that the Trial Chamber erred in finding that
21 witnesses identified him in the camp. The Appeals Chamber finds,
22 Judges Pocar and Liu dissenting, that in light of the Trial Chamber's own
23 findings and the inconsistencies in Kustura evidence, a reasonable
24 Trial Chamber could not have based a conviction on his testimony absent
25 corroboration. The Appeals Chamber also concluded, Judges Pocar and Liu
1 dissenting, that the Trial Chamber failed to provide reasons for
2 preferring Witness Nurko Dervisevic's prior statements over his oral
3 testimony. Consequently, the Appeals Chamber, Judges Pocar and Liu
4 dissenting, finds that the Trial Chamber erred in finding that
5 Sredoje Lukic beat detainees on several occasions.
6 The Appeals Chamber finds that Sredoje Lukic beat
7 Nurko Dervisevic on one occasion. With respect to this incident, the
8 Appeals Chamber finds, Judges Pocar and Liu dissenting, that no
9 reasonable trier of fact could have found that it caused serious bodily
10 and mental harm and that Sredoje Lukic thereby aided and abetted
11 persecutions and inhumane acts as a crime against humanity and cruel
12 treatment as a violation of the laws or customs of war. The Appeals
13 Chamber, Judges Pocar and Liu dissenting, therefore overturns all of
14 Sredoje Lukic's convictions related to Uzamnica camp.
15 Consequently, the Appeals Chamber, Judges Pocar and Liu
16 dissenting, considers moot the Prosecution's second ground of appeal in
17 which the Prosecution argues that the Trial Chamber erred in failing to
18 convict Sredoje Lukic for committing persecutions in the Uzamnica camp.
19 As to the Prosecution's first ground of appeal, the Trial Chamber
20 found that there was no majority to enter a conviction against
21 Sredoje Lukic for aiding and abetting extermination on Pionirska Street.
22 The Appeals Chamber notes that Rule 87(A) of the Rules states that a
23 majority of Judges must be satisfied that the guilt of the accused has
24 been proved beyond reasonable doubt. Since neither
25 Judge Van Den Wyngaert nor Judge Robinson were satisfied that
1 Sredoje Lukic should be convicted of this offence, the Prosecution failed
2 to prove any error on the part of the Trial Chamber.
3 And finally, the Appeals Chamber has dismissed Sredoje Lukic's
4 submissions relating to sentences.
5 I will now read out the disposition of the appeal judgement.
6 Mr. Milan Lukic and Mr. Sredoje Lukic, will you please rise.
7 [The appellants stand]
8 JUDGE GUNEY: [Interpretation] Thank you.
9 For the foregoing reasons, the Appeals Chamber, pursuant to
10 Article 25 of the Statute and Rules 117 and 118 of the Rules;
11 Noting the respective written submissions of the parties and the
12 arguments they presented at the appeal hearing on the 14th and 15th
13 September 2011; sitting in open session; grants, in part, Milan Lukic's
14 subgrounds 7(D) and 3(A) and replaces the Trial Chamber's finding that 59
15 victims died at the Pionirska Street incident with the finding that 53
16 victims died; dismisses the remainder of Milan Lukic's appeal; dismisses,
17 Judge Morrison dissenting, Sredoje Lukic's first ground of appeal;
18 dismisses, Judge Guney and Judge Morrison dissenting, Sredoje Lukic's
19 second ground of appeal; dismisses, Judge Morrison dissenting,
20 Sredoje Lukic 5th, 6th, 11th, and 12th grounds of appeal insofar as they
21 relate to his convictions for aiding and abetting the crimes of cruel
22 treatment as a violation of the laws or customs of war as well as
23 persecutions and other inhumane acts as crimes against humanity, all
24 committed at the Memic house; dismisses, Judge Guney and Judge Morrison
25 dissenting, Sredoje Lukic's 3rd, 4th, 5th, 6th, 11th, and 12th grounds of
1 appeal insofar as they relate to his convictions for aiding and abetting
2 the crimes of murder and cruel treatment as violation of the laws or
3 customs of war, as well as murder, persecutions, and other inhumane acts
4 as crimes against humanity, all committed at the Omeragic house;
5 Grants, in part, Judge Pocar and Judge Liu dissenting,
6 Sredoje Lukic's 8th ground of appeal and reverses, Judge Pocar and Judge
7 Liu dissenting, his convictions for the beatings of Kustura, Dervisevic,
8 and other detainees; grants in part, Judge Pocar and Judge Liu
9 dissenting, Sredoje Lukic's 9th ground of appeal and reverses, Judge
10 Pocar and Liu dissenting, his convictions for having aided and abetted
11 the crimes of cruel treatment as a violation of the laws or customs of
12 war, as well as persecutions and other inhumane acts as crimes against
13 humanity, all in relation to beatings in the Uzamnica camp; and declares
14 moot, Judge Pocar and Judge Liu dissenting, the remainder of his 9th
15 ground of appeal and his 10th ground of appeal, as well as his 11th and
16 12th grounds of appeal in as far as they relate to the beatings at the
17 Uzamnica camp; dismisses Sredoje Lukic's appeal in all other respects;
18 dismisses the Prosecution's first ground of appeal; and declares moot the
19 Prosecution's second ground of appeal; affirms Milan Lukic's sentence of
20 life imprisonment, subject to credit being given under Rule 101(C) of the
21 Rules for the period already spent in detention;
22 Reduces, Judge Pocar and Judge Liu dissenting, Sredoje Lukic's
23 sentence of 30 years' imprisonment to a sentence of 27 years'
24 imprisonment subject to credit being given under Rule 101(C) of the Rules
25 for the period already spent in detention;
1 Orders, in accordance with Rule 103(C) and 107 of the Rules, that
2 Milan Lukic and Sredoje Lukic are to remain in the custody of the
3 Tribunal pending the finalisation of arrangements for their transfer to
4 the state where their sentences will be served.
5 Judge Guney appends separate and partially dissenting opinions.
6 Judge Agius appends a separate opinion. Judges Pocar and Liu append a
7 joint dissenting opinion. Judge Morrison appends separate and dissenting
9 Mr. Milan Lukic, Mr. Sredoje Lukic, you may be seated.
10 [The Appellants sit down]
11 JUDGE GUNEY: [Interpretation] Thank you.
12 Registrar, would you please distribute copies of the judgement to
13 the parties.
14 [In English] There is nothing left to deal with.
15 [Interpretation] We are adjourned.
16 --- Whereupon the hearing adjourned at 3.38 p.m.