1 Wednesday, 22 November 2000

2 [Open session]

3 [Defence Closing Arguments]

4 [The accused entered court]

5 --- Upon commencing at 9.30 a.m.

6 JUDGE MUMBA: Please call the case, Madam Registrar.

7 THE REGISTRAR: [Interpretation] Case IT-96-23-T, IT-96-23/1-T, the

8 Prosecutor versus Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic.

9 JUDGE MUMBA: We are continuing with closing arguments now by

10 Mr. Kolesar for Mr. Radomir Kovac.

11 MR. KOLESAR: [Interpretation] Thank you very much, Your Honour.

12 Yesterday towards the end of our session in my closing argument, I

13 said that I shall first present an evaluation of witnesses, Prosecution

14 witnesses who mentioned the accused Radomir Kovac during the proceedings,

15 so let us do this in order.

16 Witness 87 gave a statement before the investigators of the

17 Tribunal on the 19th and 20th of January, 1996. That is Defence Exhibit

18 D32. On this occasion she mentioned that among the group of soldiers

19 present was also the accused Radomir Kovac, and she described him as tall,

20 average build, with short, dark hair and a receding hairline, with a beret

21 on his head, except that something was wrong with his eye, but that could

22 be noticed only from a close distance. Also, she did not remember which

23 eye it was, and she said that he was around 35 years old.

24 In relation to the stay in the accused Kovac's apartment, she

25 mentions that they, the four girls, were brought to the apartment in the

1 Lepa Brena building by the accused Radomir Kovac and Jagos Kostic, and

2 that during their stay in the apartment, on one occasion they forced all

3 four girls to undress and to dance on the table to Muslim music, and that

4 the accused Radomir Kovac on one occasion forced her alone to dance on the

5 table but not the other girls. Witness AB and 75 stated that they were

6 taken away by some soldiers, whereas AS and she remained in the apartment

7 until the 25th of February, 1993.

8 The witness then stated that sometime before the 25th of February,

9 1993, two Montenegrins came, and she heard that in the hallway they were

10 talking with the accused Kovac and Kostic. AS and she were told to go to

11 the kitchen, but they managed to sneak up to the door of the living room

12 and they eavesdropped on this conversation. She remembered that AS was

13 afraid that they would be caught eavesdropping. She heard the

14 conversation, and she knew that these two Montenegrins bought them for 500

15 Deutschmark each. She did not see the exchange of money because she could

16 not manage to, but as soon as she heard them setting out, they ran back to

17 the kitchen.

18 In the statement made to the investigators of the Tribunal on the

19 4th and 5th of May, 1998, Defence Exhibit D33, the witness does not

20 mention the accused Radomir Kovac at all. During the examination-in-chief

21 by the Prosecutor before the Trial Chamber, the witness did not mention

22 the presence of the accused Radomir Kovac on the 3rd of July, 1992, in

23 relation to the events that occurred in the villages of Mjesaja and

24 Trosanj.

25 In terms of being forced to strip naked, the witness stated that

1 they were forced by the accused Kovac and Kostic in the apartment that

2 they were staying at to strip naked and to stand one next to the other.

3 She does not remember whether they were standing on the bed or on the

4 floor, and she does not remember whether the music was on; and that the

5 accused Kovac once again in the apartment in Gornje Polje forced them to

6 strip naked and stand on the table, and he said that he would take them

7 naked through the town to the river in order to kill them, but that they

8 got dressed and walked to the river. And after a period of time, he

9 returned them to the apartment. The accused Kovac once again forced her

10 alone in the apartment to strip naked, to climb on the table and dance to

11 Bosnian music.

12 Furthermore, she stated that after a brief stay in the apartment,

13 AB and 75 were taken away, that she does not remember particularly well

14 under which circumstances. She simply says that they came and picked up

15 the two of them and took them away. That is page 1717 from the trial

16 itself.

17 She testified that the accused Kovac did not beat her. As for the

18 sale to the Montenegrins of Witness AS and herself, she stated that she

19 heard negotiations, although not everything, because they were not in the

20 same room, but she and AS heard part of the conversation and that they

21 were both sold for 500 Deutschmarks respectively.

22 During the cross-examination by the Defence counsel of the accused

23 Radomir Kovac in relation to their stay in the apartment, she stated that

24 the apartment was made available to them in its entirety for their use;

25 that they could maintain personal hygiene to the extent possible, due to

1 the shortages because of the war; that they prepared food for the accused

2 Kovac and Kostic and themselves together; that they watched TV together

3 when there was electricity; and that girls AB and 75 were taken away after

4 a brief stay in the apartment.

5 She also does not remember whether they went into the

6 neighbourhood in order to borrow something or to cook coffee when there

7 was no electricity, and she did not remember whether the relative of the

8 accused Radomir Kovac would give them food every now and then. She did

9 not remember whether Kovac's mother sometimes came to the apartment and

10 brought food. She also did not remember whether she went to visit,

11 together with Radomir Kovac, whether she went to visit his friends and

12 relatives, and she did not remember the Jojic family. Also, she did not

13 remember the name of the coffee bar where she went out with the accused

14 Radomir Kovac.

15 JUDGE MUMBA: Mr. Kolesar, please slow down. You are going too

16 fast.

17 MR. KOLESAR: Yes.

18 JUDGE MUMBA: And also your system of repeating the whole evidence

19 will take us too long, because what you should have done, if it's the

20 discrepancies you want to point out, is simply go to the discrepancies

21 instead of reading out more or less the whole evidence of each witness.

22 It will take us quite long.

23 MR. KOLESAR: [Interpretation] Your Honour, the concept of my

24 closing argument is to present portions of testimonies of Prosecution

25 witnesses that testified against the accused Radomir Kovac, but only

1 relevant portions, and in order to do so, I will have to present some of

2 their testimony. And since this is a closing argument, I would kindly ask

3 for permission to do so.

4 I'm sorry to say this, but I was interrupted and hindered during

5 the examination of Witness 75, a witness that was of key importance to the

6 accused Radomir Kovac. I was also asked to abbreviate my introductory

7 statement. With all due respect to the time of this Court, I shall make

8 every effort not to abuse the Court's time, but I would like to complete

9 my closing argument.

10 JUDGE MUMBA: All right, Mr. Kolesar.

11 JUDGE HUNT: I don't think we should let that remark about being

12 interrupted go passed unanswered. You have raised it in your submissions,

13 but if you look at the page references that are relevant to that

14 particular matter, you'll see that you were invited to continue, and then

15 you said, "I have finished my cross-examination." So let there be no

16 doubt about it. Your suggestion that you were interrupted is quite

17 wrong. There was an interruption to your cross-examination, but there was

18 no stopping you from continuing it.

19 MR. KOLESAR: [Interpretation] Precisely, Your Honour. I did not

20 say I was stopped all together. I said that I was interrupted, but I did

21 not say that I was stopped all together. These are two different things,

22 to my mind.

23 May I proceed now?

24 JUDGE MUMBA: Yes, Mr. Kolesar. You can go ahead.

25 MR. KOLESAR: [Interpretation] The same witness was heard on

1 another occasion during the rebuttal case in line with Rule 85(A)(iii) of

2 the Rules of Procedure and Evidence on the 23rd of October, 2000. During

3 the examination-in-chief, now she did remember that once she was in the

4 apartment of Kovac's relative, together with AS, the relative who lived at

5 the same entranceway, and she remembered that on several occasions she

6 gave them food. She also remembered the incident concerning one soldier

7 who broke into the apartment, and she said that the accused Radomir Kovac

8 threw him out of the apartment. She did not remember that through this

9 relative she called Kovac. Perhaps it was AS who did this.

10 Now she explicitly denied that she knew Kovac's mother and

11 relatives, including the Jojic family. She also stated that she did not

12 know Witness 191 from before, that she did not remember her from Foca, and

13 that she did not remember having seen her in Kovac's apartment.

14 In response to the Prosecutor's explicit question whether she ever

15 sent a postcard or a thank-you letter to Kovac, the witness said, "No."

16 This is page 6117, lines 4 to 5.

17 In response to a question put by the Defence counsel of the

18 accused Radomir Kovac during the cross-examination, she gave "no" as an

19 answer to those questions that she previously answered by, "I don't

20 remember." She testified that she was at a party in the Cafe Linea. She

21 does not know on which occasion, and she does not know whether it was Serb

22 New Year's Eve or something else, but she knew that it was wintertime.

23 The witness said that at the time when Kovac was wounded and when

24 he was in bed in the apartment, the other two girls were not in the

25 apartment. It was only AS and her who were in the apartment.

1 She confirmed her statement, and this witness shows that she is a

2 person who consciously and intentionally evades giving answers to

3 questions that could in a way help the accused, that this is a witness who

4 was instructed as to what she should say before the Court; and also during

5 the cross-examination by the Defence counsel for the accused Radomir Kovac

6 on the 5th of April, 2000, in response to questions put by Defence

7 counsel, 49 times she answered, "I do not remember," whereas during the

8 cross-examination on the 23rd of October, 2000, she gave this same answer

9 16 times.

10 During cross-examination on the 23rd of October, 2000, this

11 witness, which is the same thing she did during the examination-in-chief,

12 in response to all questions that were put to her during the

13 cross-examination on the 5th of April, 2000, that she had answered, "I do

14 not remember," now she said, "No." Asked to explain why during the

15 cross-examination the witness gave answers saying that she did not

16 remember and now during the cross-examination, as was during the

17 examination-in-chief, she gave answers that amounted to "no", the witness

18 said that she did not know how to explain this, having said, "This

19 difference I don't know. I don't know what to say." That is page 6123,

20 row six to nine. And then later when having gone back to that she said,

21 "We keep going back to this same thing. I simply cannot explain this. I

22 don't know." That is page 6134, row six to nine.

23 So this is conscious and intentional evasion of giving truthful

24 answers which was discussed by the expert witness Dr. Sanda

25 Raskovic-Ivic. This is a witness who does not wish to state the truth.

1 The reason is not important, but with this kind of position, such a

2 witness discredits herself to such an extent that she cannot be trusted,

3 and on the basis of her statement, no verdict of not guilty

4 [as translated] can be pronounced.

5 The situation is similar with Witness 75. In her statement given

6 to the Agency for Investigations and Documentation in Bosnia and

7 Herzegovina -- so the situation is the same with Witness 75. In her

8 statement given to the Agency for Investigation and Documentation in

9 Bosnia-Herzegovina from the 22nd of August, 1996, Defence Exhibit D25, she

10 describes the accused Radomir Kovac in relation to the events from the 3rd

11 of July, 1992, and she says that among the soldiers present was also the

12 accused Radomir Kovac, and that he had a leather jacket, camouflage

13 trousers, spectacles with one dark glass and the other glass was missing.

14 In relation to the same incident in her statement given to the

15 investigators of the International Tribunal from the 15th to the 18th of

16 November, 1995, Defence Exhibit D24, she said that on the meadow amongst

17 the soldiers, the -- amongst the soldiers who were wearing camouflage

18 uniforms was also the accused Radomir Kovac. She described him as tall

19 and skinny, with short, dark hair, about 32 or 33 years old, ugly,

20 clean-shaven, and that she did not know him before the war.

21 Before the Trial Chamber, the witness in relation to the same

22 event during cross-examination about this same event says that the accused

23 Radomir Kovac had a black cap, black eyes, black bandana, explaining that

24 this was actually a black-eye patch that he had over one eye.

25 In response to the counsel of the accused Radomir Kovac, it was

1 put explicitly that when taking into account all the circumstances

2 involved, that is to say, fog, fear, the fact that she did not know these

3 persons earlier, that she did not see them before, would it be possible

4 for this to have been Micko, the man who stood together with the group of

5 soldiers on the 3rd of July, 1992, the witness answered, "I don't know."

6 That is page 1573, line 25, and page 1574, lines 1 through 7.

7 When explaining what happened later when they were taken to Buk

8 Bijela and when explaining what happened there or in her other statements,

9 this witness did not mention the accused Radomir Kovac, including in her

10 testimony before this Court.

11 The same witness in her statement given to the Agency For

12 Investigations and Documentation that I already mentioned a few minutes

13 ago does not mention anywhere that during her stay in the apartment of the

14 accused Radomir Kovac, that Slavo Ivanovic or any other soldier came to

15 the apartment, or that the accused Radomir Kovac asked her to go to a room

16 together with them.

17 If her statement given to the investigators of the Tribunal,

18 though, dated the 15th to the 18th of November, 1995, she mentioned that

19 the accused Radomir Kovac one evening brought Slavo Ivanovic to the

20 apartment and ordered her to have sex with him, that she cried and

21 refused, and that the accused Kovac slapped her, but did not force her to

22 go with Slavo.

23 When heard before this Court in relation to this incident, the

24 witness repeated what she had stated to the investigators of the Tribunal,

25 but she added that the accused Kovac forced her on yet another occasion to

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1 go to the kitchen with the accused Zoran Vukovic.

2 In relation to the sale of Witness AB to Dragan Stankovic for 200

3 Deutschmark, she describes this incident in her statement given to the

4 Agency for Documentation and Investigation of Bosnia and Herzegovina, and

5 first she describes events related to standing on the table, and then

6 taken to -- being taken to the confluence of the Cehotina and Drina

7 Rivers, and then the sale to Dragan Stankovic the next day. After that,

8 AB left with Dragan Stankovic.

9 In the statement given to the investigators of the Tribunal in

10 terms of the same event, she mentioned that she spent 20 days in Kovac's

11 apartment, after which she and AB moved to a house near the Zelengora

12 Hotel in which they stayed 20 days; and then they were taken away to an

13 apartment in the neighbourhood Pod Masala where they spent 15 days, when

14 one night they took her to Kovac's apartment, and that night Kovac sold AB

15 to Dragan Stankovic for 200 Deutschmark.

16 And then a soldier named Zeljko took her to the apartment in the

17 neighbourhood Pod Masala, and the next day in the apartment in the

18 neighbourhood Pod Masala he ordered them to strip and to stand naked on

19 the table for about one hour, and then forced them to go to the Drina

20 River and the confluence of the Cehotina and Drina Rivers without having

21 mentioned that he forced them to walk naked through town.

22 Before the Trial Chamber there was yet a new story saying -- she

23 said that in the neighbourhood -- in the apartment in the neighbourhood

24 Pod Masala, they were forced to trip naked. She, 87, and AB, while AS was

25 in the apartment in Donje Polje, and that he forced them to go to town

1 naked. She just -- they just took their clothes into their hands. They

2 took only their own things. He forced them to go out and walk in the

3 direction of the municipal building.

4 The next day AB was fold for 200 Deutschmark in the following

5 way. The doorbell rang, the accused Radomir Kovac looked through the peep

6 hole on the door, laughed and said, "Look at him counting the money."

7 Then Dragan Stankovic walked in, and he saw him giving the accused Radomir

8 Kovac 200 Deutschmark, and then he took girl AB and left.

9 The same witness when heard before the Trial Chamber during the

10 examination-in-chief by the Prosecutor stated that the accused raped her

11 and Witness 87 together in the same bed while music from Swan Lake was

12 playing, and he said that he had done such things and that he would kill

13 her brother.

14 When carefully reading the statements of this witness, it is easy

15 to note an inconsistency in these statements with regard to very important

16 facts. It is not all the same when identifying the accused, whether he

17 had a black-eye patch or dark glasses without one glass.

18 It is very unlikely that the accused had a black leather jacket

19 on. This incident occurred on the 3rd of July, 1992. July is the hottest

20 month, and that year both day and night temperatures were high, so there

21 was no need to wear a leather jacket.

22 Bearing all this in mind, it should also be taken into account

23 that Witness 75 did not know the accused Radomir Kovac from before, and in

24 her statement she is trying to place him where he was not. And I shall go

25 back to that a bit later as well.

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1 The statement of this witness given before the Trial Chamber is

2 confused. The witness notably during cross-examination often replies by

3 saying, "I do not recall," evading to give answers to concrete questions

4 related to important facts concerning events in which she took part

5 herself.

6 Also unconvincing are her answers to questions as to why she did

7 not speak about certain incidents earlier; for example, the stay of Zoran

8 Vukovic in the apartment and the attempt to have sex with him, and also

9 the alleged sex that the accused Kovac had with her and the other girl.

10 The witness was particularly confused and unconvincing and, which

11 is most important, contradictory per se, when testifying before the Trial

12 Chamber about the alleged sale of AB and coercion to undress and go to the

13 Drina River and then to the confluence of the Cehotina and Drina Rivers.

14 As for the reliability of the statement of this witness, we shall

15 go back to that when we juxtapose it to the statements of some other

16 witnesses of the Prosecution, especially the Defence witness statements.

17 Witness AS did not make any statements prior to her testimony

18 before the Trial Chamber. During the examination-in-chief, she stated she

19 did not remember Witness FWS-75 being in the flat with them. She said

20 that she did not know the accused Radomir Kovac and Jagos Kostic from

21 before the war and that she saw them for the first time in a flat in

22 Ribarsko.

23 During the stay in the apartment, the accused Radomir Kovac did

24 not beat, abuse, or rape her. She did not remember that other soldiers

25 came to the flat. She knew that the accused Kovac had been wounded, but

1 she did not know when or how long he spent in hospital. And she learned

2 this because someone came to the door and brought Kovac's clothes, and it

3 was a soldier.

4 In connection with the alleged stripping, she said that they,

5 Radomir Kovac and Jagos Kostic, ordered them to take their clothes off and

6 to do a striptease; and that AB, 87, and she were present, but that she

7 did not remember that 75 was also there; and that this took place in

8 Kovac's apartment and that they were told after they had stripped to

9 dance. On that occasion, she did not mention going to the River Drina and

10 the confluence between the River Cehotina and the River Drina.

11 During the examination-in-chief, when asked by the Prosecutor

12 whether she could describe the circumstances under which they were taken

13 from the flat, Witness AS answered, "At first we didn't know. Later we

14 heard we had been sold for 500 Deutschmarks and a truckload of washing

15 powder," page 2024, line 4 to 8. And when they were asked how they found

16 this out, she replied, "They were laughing among themselves and saying,

17 `See how much you are worth,'" page 2024, lines 21 to 24. And by "they,"

18 she meant the two Montenegrins.

19 Witness AS, during her cross-examination, stated that when they

20 arrived in the apartment they only had the clothes they were wearing.

21 Later on she said that during their stay in the flat they did not go to

22 visit the neighbours, nor did the neighbours come to see them, not even

23 the cousin of the accused Kovac, who lived in the same building, except

24 that once when she was ill she handed her food by means of a rope over the

25 balcony.

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1 She also said that there was an incident when a soldier tried to

2 break in. And in connection with the sale, she said they had been sold

3 for 500 Deutschmarks and that they, the Montenegrins, laughed and said,

4 "You see how much you're worth. You're worth 500 Deutschmarks and the

5 truckload of detergent," and that this took place when they were driving

6 from Foca and when they sat down to take a rest.

7 This witness' testimony is also confused, and in answering

8 questions to Defence counsel, she evaded giving answers because she had

9 learned to use the system of saying, "I don't remember." To questions by

10 the Prosecution, she answered she did not remember 15 times, but during

11 the cross-examination as many as 32 times, which evidently points to the

12 fact that the witness was consciously evading giving proper answers to the

13 questions put to her, which casts doubt on the credibility of this

14 witness.

15 When her testimony is compared to the testimony of other

16 witnesses, which we shall do, the conclusion has to be reached that she is

17 not trustworthy and that a condemnation or, rather, a finding of guilty

18 cannot be based upon her testimony.

19 During the cross-examination of this witness, the Defence, page

20 2050, drew attention to the witness' avoiding answering certain questions,

21 and he said that what was in question was not her not remembering but

22 rather her conscious evasion, and this is also referred to by the expert

23 witness, Dr. Sanda Raskovic-Ivic.

24 Witness 132 made a statement in which she mentions a certain Mirko

25 Kovac, also known as Klanfa. And during her examination before the Trial

1 Chamber, when asked by the Prosecutor, she mentioned a person named Mirko

2 Kovac, also known as Klanfa, and said that people said that he was an

3 influential man, that he did not allow her to leave to be exchanged at the

4 same time as her father.

5 During the cross-examination, she stated that this Kovac was a man

6 of high rank; that he wore a black beret, a camouflage uniform; that he

7 was short, thin; that he was about 45 years old; and she wanted to stress

8 that his last name was Kovac but that she may have been mistaken about his

9 Christian name. She was, however, certain of his last name and his rank.

10 She knew that his rank was very high but that she may have made a mistake

11 about his first name.

12 In view of the description given by this witness, it is evident

13 that she was not referring to the accused Radomir Kovac, and for this

14 reason we shall not go further into an analysis of this witness'

15 testimony.

16 Only two witnesses remain. One of them is Witness 190, who, in

17 her statement made to employees of the Ministry of the Interior of the

18 Republic of Bosnia and Herzegovina and to investigators of the Tribunal on

19 the 7th and 8th of June, 1998, also testified before the Trial Chamber.

20 In her --

21 JUDGE MUMBA: Mr. Kolesar, can we have the exhibit numbers of

22 those statements, please?

23 MR. KOLESAR: [Interpretation] The statement given to employees of

24 the Ministry of the Interior of Bosnia and Herzegovina was made on the 9th

25 of November, 1993, and it's Prosecution Exhibits 218 and 218A. And the

1 statement made to investigators of the Tribunal on the 7th and 8th of

2 June, 1998 is Defence Exhibit 61 and 61A.

3 I apologise for my omission.

4 JUDGE MUMBA: Thank you.

5 MR. KOLESAR: [Interpretation] In her statement made to

6 investigators of the Tribunal, in relation to the accused Radomir Kovac,

7 she stated that she only knew him and that he was under the command of

8 DB1, that he was tall, thin, brown-haired, and about 30 years old.

9 When questioned before the Trial Chamber during her

10 examination-in-chief, she repeated that she knew the accused Radomir Kovac

11 because he used to come to the apartment of Witness DB1, and that on the

12 arrival of the girls, she was in the flat and that they spent the night

13 there.

14 During the cross-examination by the Defence counsel for the

15 accused, however, she described where she had lived with DB1 and repeated

16 that she had visited the girls while they were in Kovac's apartment and

17 that it was the girls who opened the front door to her. She repeated that

18 the girls had come to visit her also and that they had spent a night in

19 her flat; and that when she had visited the girls, they had told her that

20 Kovac and Kostic allowed other soldiers to come to the apartment; and that

21 the accused had told her on one occasion that he had taken the girls in

22 the direction of Montenegro, but she did not say under what circumstances.

23 The Defence of the accused Kovac finds that the testimony of this

24 witness cannot be accepted and that a finding of guilty cannot be based on

25 it because it is confused, contradictory, bearing in mind what the witness

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1 told investigators of the Tribunal and what the witness told the Trial

2 Chamber.

3 This witness' testimony runs counter to the testimony of other

4 Prosecution witnesses, and it is the conclusion of the Defence of the

5 accused Radomir Kovac that this witness was never in the flat of the

6 accused Radomir Kovac while the girls were staying there, because, in

7 addition to other things, she was unable to point out Kovac's flat on

8 photographs; she mistakenly said that the entrance to the building was

9 from the courtyard, and so on.

10 Also, the witness was unable to explain to the Defence counsel the

11 illogical parts and the contradictory parts of her testimony. The

12 statements of Witnesses 87 and AS are decisive, and they said that during

13 their stay in the flat, none of the girls visited them, nor did they go to

14 visit them, and this supports the conclusion of the Defence counsel that

15 this witness was not in the flat while Witnesses 87 and AS were staying

16 there, and that the witness is not speaking the truth in this part of her

17 testimony.

18 Finally, Witness 191 made a statement to investigators of the

19 Tribunal, and she said that on the 22nd and 23rd of September, 1998,

20 Defence Exhibit D58 and D58A, and she was also heard by the Trial Chamber

21 on the 16th of May, 2000, and again during the rebuttal case according to

22 Rule 85(a)(iii) of the Rules of Procedure and Evidence. In her statement

23 made to investigators of the Tribunal, she said that she recognised the

24 name of Radomir Kovac, that he belonged to Cosa's group, and that was all

25 she said about the accused Radomir Kovac.

1 In the view of the Defence, what is characteristic of this

2 statement is the statement that she made to the effect that her husband

3 did not talk to her about the things that he had seen and that he knew

4 because he said, "The less you know, the better for you." Her husband was

5 a member of the same unit as the accused Radomir Kovac.

6 In a statement made to the Trial Chamber on the 16th of May, 2000,

7 this witness, referring to the accused Radomir Kovac, stated that she knew

8 him; that he belonged to Cosa's units which at the beginning of the war

9 was a military police unit; and that while the girls were in the flat used

10 by the accused Radomir Kovac, she had gone there to take some things of

11 hers, and that this was in October 1993 when she was no longer with Zaga;

12 that she entered the flat with DP1 [Realtime transcript read in error

13 "DB1"]; and at the time she was living with DP1's [Realtime transcript

14 read in error "DB1"] aunt, she found three girls there, but that she did

15 not stay in the flat for more than five to ten minutes.

16 Witness FWS-191 was heard again on the 23rd October, 2000, during

17 the rebuttal case under Rule 85(a)(iii) of the Rules of Procedure and

18 Evidence, on which occasion she reiterated that she had been in the flat,

19 that she had seen Witness 87 once again when DP1 brought her to the flat

20 where she stayed for half an hour, but that she had never seen her in a

21 cafe with the accused Radomir Kovac.

22 During the cross-examination by the Defence counsel, she stated

23 that she had been in Kovac's flat in mid-October, and that she did not

24 think it was at the end of October, that she had come with DP1 during the

25 time that she was using DP1's aunt's flat, and she claimed that the girls

1 had taken her things, and that on that occasion she took them back and

2 that there were three girls in the flat at the time.

3 Analysing the statement of this witness, what strikes one is that

4 in her first statement made to investigators of the Tribunal, she said

5 that she only knew the name of Radomir Kovac, and that he belonged to

6 Cosa's group, while later on she said before the Trial Chamber that she

7 had been in the flat used by Radomir Kovac while the girls were there and

8 that this was in mid-October. The girls were not in the flat in

9 mid-October 1992 because at that time they were in Karaman's House, nor

10 were they in mid-October 1993 because they had long left the flat by then.

11 JUDGE MUMBA: Yes, Ms. Lopicic.

12 MS. LOPICIC: [Interpretation] Your Honours, I'm sorry for

13 interrupting. I would like to inform you that in my transcript, it says

14 "DB1" instead of "DP1." For example, on page 18, row 5, row 17.

15 JUDGE MUMBA: Yes.

16 MS. LOPICIC: [Interpretation] It's just an example, but there I

17 see it a few times the mistake.

18 JUDGE MUMBA: Yes, it should be DP1.

19 MS. LOPICIC: Yes.

20 JUDGE MUMBA: Thank you for being such a good editor.

21 Mr. Kolesar, please.

22 MR. KOLESAR: [Interpretation] Thank you, Your Honour.

23 Bearing in mind the statements of these two witnesses, witnesses

24 AS and 87, that no one visited them, that they were -- they had only the

25 clothes they were wearing when they arrived in the flat, that they came

1 only in what they had on; and especially the statement of Witness 87 of

2 the 23rd of October, 2000, that she did not know this witness from before,

3 that she did not remember her from Foca, and that she did not remember

4 having seen her in the flat; it is evident that this witness is not

5 telling the truth and that a judgement cannot be passed based on her

6 decision.

7 If we analyse the statements of these witnesses with reference to

8 some facts mentioned by the witnesses, and if we compare these, we shall

9 see how we can arrive at the truth, and how we can conclude whether any of

10 these witnesses are credible.

11 Witness 75 testified that the accused Kovac sold AB to Dragan

12 Stankovic for 200 Deutschmarks in the flat of the accused Kovac. On one

13 occasion she said this was done before he forced them to strip, Defence

14 Exhibit D24, and on another occasion on the following day, the day after

15 he had forced them to strip, and in any case, on the 25th of December,

16 1992. And the Prosecution bases its indictment on the testimony of this

17 witness. However, Witnesses 87 and AS in their testimonies claimed that

18 girls 75 and AB spent only a short time in Kovac's flat after which they

19 were taken away and did not go back to the flat, while Witness 87 added

20 that at the time when Kovac was wounded, she and AS were in the flat.

21 It follows from the written evidence of the Defence, D110 and 111,

22 beyond any doubt that the accused Radomir Kovac was away on a military

23 assignment from the 19th of December, 1992, that on the 24th of December,

24 1992 he was wounded, and that he was in hospital from the 25th to the 29th

25 of December, 1992.

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1 In view of these facts which no one has yet denied, it follows

2 that the accused Radomir Kovac did not on the 25th of December, 1992, or

3 about that date, as the Prosecutor states in the indictment, sell girl AB

4 to Dragan Stankovic for 200 Deutschmarks because at that time, Witness 75

5 and the girl AB were not in the flat used by the accused Radomir Kovac,

6 and that the testimony of Witness 75 is nothing but a lie.

7 Furthermore, Witness 75 testified that the accused Radomir Kovac

8 during her stay in the flat used by the accused Radomir Kovac, brought

9 Slavo Ivanovic there and asked her to go to a room with him, and since she

10 refused, the accused slapped her; and that on one occasion, he forced her

11 to go to the kitchen with Zoran Vukovic. However, Witnesses 87 and AS in

12 their testimonies stated categorically that while they were in the flat,

13 no other soldiers came there. The only thing that is certain is that had

14 some soldiers or some other people come there, these witnesses would have

15 had to see them.

16 Finally, referring to Witness 75, special attention should be paid

17 to the part of her testimony referring to the events of the 3rd of July,

18 1992. The witness did not know the accused Radomir Kovac from before.

19 There was a sudden attack at dawn. The morning was misty. No one was in

20 an ordinary state of mind. And these were not circumstances in which --

21 or seeing a group of unknown persons dressed in military uniforms would

22 make a recognition even more difficult, one could remember all the people

23 she listed, although she did not know any of them from before. The

24 witness is uncertain in this part of her testimony because on one occasion

25 she said he had a patch over his eye; on another occasion she said he was

1 wearing dark glasses with one glass missing. And when asked directly by

2 the Defence counsel who asked whether this could not have been his brother

3 Micko, the witness answered she didn't know, which also shows great

4 uncertainty as regard to who it was.

5 We wish to point out that in these proceedings a large number of

6 witnesses were heard in connection with the events of that day, and no one

7 except for Witness 75 stated that on that day, the accused Radomir Kovac

8 was in the place in question and later in Buk Bijela in the bus, taking

9 people from Buk Bijela to the school in Foca, or in the school itself,

10 including Witness 87. This part of the testimony of Witness 75 is also

11 nothing but a lie.

12 It is true that at that time the accused Radomir Kovac was ill,

13 and he was on sick leave from the army, as Witness DV testified

14 unambiguously and as can be seen from the logbook that this witness

15 presented to the Tribunal which no one has challenged. The only thing

16 that is certain is that the accused Radomir Kovac on the 3rd of July,

17 1992, participated in fighting around the villages of Mjesaja and Trosanj,

18 but had he participated in this fighting, at least some of the witnesses

19 would have recognised and identified him.

20 Witness FWS-87 in her testimony about how she and AS were sold

21 states that sometime before the 25th of February, 1993, two Montenegrins

22 came, and she heard them talking to Kovac in the hallway. She and AS had

23 been told to go to the kitchen, and then followed the events I have

24 already described.

25 Witness AS describes this same event completely differently, and

1 she says when asked by the Prosecutor, "First we didn't know. Later we

2 heard that we had been sold for 500 Deutschmark and a lorry full of

3 detergent." And when asked how they found out, she said, "They were

4 laughing and saying, `See how much you're worth,'" and that was when they

5 sat down to have a rest while they were driving out of Foca. Therefore we

6 have two diametrically opposed testimonies on the same incident. One

7 witness says that they found out in the apartment itself, and that on that

8 occasion AS was afraid of being caught, while another witness, AS, says

9 they found out only later when they were resting on the way out of Foca.

10 These witnesses do not agree on the price, either. Witness 87

11 mentions 500 Deutschmarks each, while Witness AS says 500 Deutschmarks

12 each plus a lorry full of detergent. The difference is really drastic,

13 just as the disparity between the statements of these two witnesses as to

14 how they found out they were going to be sold. No less significant is the

15 fact that Witness 87 stated that she had not heard the entire

16 conversation, and that she could not say with any degree of certainty that

17 they had been sold.

18 With such testimonies, the Defence of the accused Radomir Kovac

19 concludes that it has not been proven beyond a reasonable doubt that the

20 accused Radomir Kovac sold Witnesses 87 and AS to two Montenegrins for 500

21 Deutschmarks as alleged by the Prosecutor in the indictment. Add to this

22 the testimonies of Defence witnesses before this Trial Chamber to the

23 effect that precisely the opposite had been the case, that the accused

24 Radomir Kovac had sold his own things, such as a TV set -- but not the one

25 from his own apartment, rather the one that had been in the flat of his

1 parents -- and his keys [as interpreted] to pay the two Montenegrins to

2 take Witness 87 and AS to Montenegro, which they did after receiving the

3 money they had required; because it is a well known fact that at that time

4 under those circumstances, it was the Muslims who paid to be taken out of

5 Foca and not those who kept them there.

6 The testimonies of Witnesses 87 and 75 and AS are even more

7 dissonant and contradictory when they relate the incident in which the

8 accused Radomir Kovac and Jagos Kostic allegedly made them strip naked.

9 The Defence has already analysed the testimonies of these witnesses taken

10 individually and pointed out numerous contradictions in these confused

11 testimonies. The Defence now intends to interrelate these testimonies and

12 prove that there are such large differences among the statements of these

13 witnesses that they cannot serve as a basis for a conviction.

14 Witness 87, in her statement dated 19th and 20th of January, 1996,

15 which is Defence Exhibit D32, says that the accused Radomir Kovac and

16 Jagos Kostic forced them, all the four girls, on one occasion to strip

17 naked and to dance on the table to Muslim music, and also that the accused

18 Radomir Kovac made her dance on the table alone on one other occasion.

19 She does not mention being taken out to the Drina River and the confluence

20 of Cehotina into the Drina, but she testifies before the Trial Chamber

21 that Kovac and Kostic made them strip naked and stand on the bed or on the

22 floor; that she does not remember whether music was playing, adding that

23 Kovac once again, in Gornje Polje, made them strip naked and stand on the

24 table, and that on that occasion he took them to the river and shortly

25 brought them back to the apartment.

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1 Witness 75 stated that the accused Kovac ordered them to strip

2 naked in a flat in Pod Masala neighbourhood; that they, Witness 87 and AB,

3 were present on that occasion, while AS was not there because she was in

4 Donje Polje, in an apartment. She says they stood there naked about one

5 hour, after which he forced them to go to the -- to walk to the Drina

6 River and to the confluence of the Cehotina into the Drina. He forced

7 them to walk through the town naked. They only picked up their clothes

8 and carried them. He made them go towards the town hall, and that on that

9 occasion he beat her and Witness 87.

10 Thus, she speaks about one incident involving her and 87 and AB,

11 while AS was in a different apartment, and says that only the accused

12 Radomir Kovac was present. That is opposed to the statement of Witness

13 87, who speaks about two incidents involving Radomir Kovac, Jagos Kostic,

14 and all the four girls. This witness does not mention that the accused

15 Kovac beat them while they were walking to the Drina River. Moreover,

16 this witness stated, when questioned, she stated that the accused Kovac

17 never hit her, and she also failed to mention that they had been forced to

18 walk through town naked carrying their clothes in their arms.

19 Finally, Witness AS, heard before this Trial Chamber, stated that

20 in an apartment where they were staying, accused Kovac and Jagos Kostic

21 ordered them to strip naked and to perform a striptease. She says that

22 87, AB, and herself were present, and on that occasion she did not mention

23 their walk to the Drina River and the confluence of Cehotina into the

24 Drina.

25 Such huge disparities in the testimonies of these witnesses on the

1 alleged occurrence of this incident clearly indicate that this thing never

2 happened, that Radomir Kovac never asked the girls to strip naked, as

3 alleged in the indictment, but rather the whole event was fabricated in

4 order to vilify the accused Radomir Kovac. But the witnesses gave a very

5 poor interpretation of this fabricated incident and will surely not

6 succeed in convincing the Court that it had indeed happened, because their

7 statements, both separate and combined, fail to prove beyond a reasonable

8 doubt the truthfulness and validity of this part of the indictment.

9 In their closing argument, the Prosecutor claimed that the

10 statements of their witnesses were convincing, that the witnesses had not

11 been coached, that they coincide with respect to important facts; if there

12 are any divergences, they are due to the passage of time, because with

13 time, memory fades, and the differences which appeared between the

14 statements of witnesses heard before the Court are only variations

15 resulting from repetition and recounting of events to which the witnesses

16 testified.

17 With regard to this part of the closing argument of the Prosecutor

18 regarding the Prosecution witnesses who testified about events involving

19 Radomir Kovac, the Defence of the accused Radomir Kovac can agree on only

20 one point, and that is that regardless of whether something was

21 experienced under traumatic or any other circumstances, events do fade.

22 However, with these witnesses, this is not the case. On the contrary; as

23 time passes, these witnesses seem to remember new incidents. They recall

24 things they had not spoken about before.

25 Witness 87 adds another incident when they were made to undress.

1 With respect to all the things that she testified to, that she testified

2 she could not remember on the 5th of April, 2000, when cross-examined by

3 the Defence, she answered "no" when examined on the 23rd of October 2000

4 in the rebuttal case.

5 Witness 75, if we compare her statement given to investigators of

6 the Tribunal on the 15th through 18th of November, 1995, and her statement

7 given to the Agency for Investigation and Documentation of Bosnia and

8 Herzegovina dated 22nd of August, 1996, it does not mention Zoran

9 Vukovic. But before the Trial Chamber, she adds a rape by Zoran Vukovic

10 in the apartment of the accused Radomir Kovac. She also adds they were

11 forced to walk naked through the city, and also that the accused Radomir

12 Kovac on one occasion raped her and Witness 87 at the same time, in the

13 same bed, to the music of Swan Lake.

14 It is obvious that with these witnesses of the Prosecution,

15 memories do not fade. Instead, new memories surface, memories of events

16 they had not mentioned before. The Defence cannot agree with the

17 Prosecutor that these new memories are variations. They are not

18 variations; they are statements of entirely new incidents, with the clear

19 aim of vilifying the accused Radomir Kovac before this Court.

20 We shall now analyse the testimonies of Defence witnesses. It is

21 to be expected that the Prosecutor will, in their closing argument,

22 analyse them in greater detail, but in any event, these witnesses, with

23 their testimonies, put in doubt the validity and viability of the

24 indictment.

25 Defence witnesses testified that they had seen accused Radomir

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1 Kovac in cafes with Witness 87 on numerous occasions; that they had

2 received food from certain witnesses on several occasions; that the

3 accused Kovac had been wounded and spent a few days in hospital; that

4 there had been an incident involving a soldier who had broken into the

5 apartment when the accused was away, and that was on the Orthodox

6 Christmas Eve; that Witness 87 had been with the accused Radomir Kovac at

7 a celebration of the Orthodox New Year's Eve 1993. Therefore, these

8 witnesses testified to all the things that the Prosecution witnesses

9 testified to. These witnesses also testified to the relationship of the

10 accused Radomir Kovac and Witness 87, in the majority of cases based on

11 the words of the accused himself.

12 Defence witnesses also testified to the personality and character

13 of the accused Radomir Kovac, his participation in this war as well. The

14 statements of these witnesses are fully corroborated by the written

15 evidence introduced by the Defence of the accused Kovac, Exhibits D109

16 through 912, and D132 to 135.

17 Bearing all this in mind, in the opinion of the Defence, it is, to

18 say the least, inappropriate and unfair on the part of the Prosecutor to

19 conclude that the Defence had brought numerous witnesses to lie for him

20 and to deny that Kovac had mercilessly raped and psychologically abused

21 Witness 87, that he had reduced the witness to his slave, and that this

22 had been an attempt by the Defence to perpetuate the outrage against the

23 personal dignity of Witness 87 and that it constituted contempt of the

24 Court before this Tribunal.

25 The Defence of the accused Radomir Kovac brought before the Trial

1 Chamber a certain number of witnesses who testified to facts of which they

2 had knowledge. As we have already mentioned, they testified or supported

3 the majority of the facts testified to by Prosecution witnesses and to

4 facts which follow from the written evidence introduced.

5 Witnesses also testified to what the accused Radomir Kovac said at

6 the time when the events in question took place, when no one yet knew that

7 all of this would happen, that these proceedings would come about. Why

8 does the Prosecutor believe that the witnesses had lied if they testified

9 that the accused Radomir Kovac had told them that he was in love with 87

10 and would like to marry her? Why would Witnesses DM and DK lie that

11 Witness 87 told them that she was in love with the accused and wished to

12 marry him? Is it because Witness 87 is now denying it?

13 It is logical that she would be unwilling to admit to that now,

14 because of the new circumstances which arose and maybe for some other

15 reason as well. Witness 191 says about Witness DV that this is a person

16 who helped her a lot while she was in Foca and they were good friends.

17 Does the Prosecutor insist that this witness is lying too?

18 I will remind you that I see nothing unnatural in this, because

19 there were cases in Foca -- there was love and there were marriages in

20 that whirlwind of war between members of different ethnic groups,

21 including also Witness 191.

22 We have heard Prosecution witnesses and Defence witnesses when

23 they told about how the girls lived in the apartment and how the accused

24 Radomir Kovac cared for them, and especially --

25 JUDGE MUMBA: Mr. Kolesar, having made the submission that it was

1 natural for people to fall in love even during that time, what is your

2 comment to the evidence of the Defence witness who described the fact that

3 Kovac could have Muslims as girlfriends as crazy? One Defence witness

4 said that it was crazy during that time to have a Muslim for a

5 girlfriend. What is your comment? Because that's a Defence witness who

6 said that.

7 MR. KOLESAR: [Interpretation] That is true, Your Honour. I don't

8 know whether she said it was crazy or she --

9 JUDGE MUMBA: [Previous translation continues] ... the Defence

10 witness who said that. It was your Defence witness, actually. It was a

11 man.

12 MR. KOLESAR: [Interpretation] Why not, Your Honour? We don't all

13 have the same opinions. In my view, there is nothing strange about that,

14 and it is not only due to the war circumstances. Love between a Serb man

15 and a Muslim girl was something quite usual, even before. It --

16 JUDGE MUMBA: Yes. What I'm saying is this Defence witness -- can

17 you wait? This Defence described it as crazy. He felt that that was his

18 view, that at that time, for Kovac to have a girlfriend who was Muslim,

19 according to him, that was crazy.

20 MR. KOLESAR: [Interpretation] Yes. That was his comment and that

21 was reflecting his opinion. But objective reality tells us the opposite.

22 During the war in Foca, according to reliable information -- we have this

23 in case -- there has been a marriage between a Serb man and a Muslim

24 woman, and we are talking about one of the witnesses, 191. And it is not

25 unusual for people to differ on such matters. It was the witness'

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1 opinion, and Kovac's feelings are quite another matter. Your Honour, love

2 is blind.

3 JUDGE MUMBA: Not sensible love. [Realtime transcript read in

4 error "That's sensible."] Go ahead, Mr. Kolesar.

5 The transcript is wrong. I didn't say, "That's sensible." I

6 said, "Not sensible love." You know, you said, "Love is blind," and my

7 response was "Not sensible love." Sensible love is not blind.

8 Go ahead. Go ahead, Mr. Kolesar.

9 MR. KOLESAR: [Interpretation] Thanks, in any case.

10 We have heard Prosecution and Defence witnesses both about how the

11 girls lived in the apartment and how the accused Radomir cared for them,

12 and especially about the relationship of the accused and Witness 87. We

13 heard what they had to say about the way they lived, their life in the

14 apartment, their going out to cafes, the organisation of the departure of

15 Witnesses 87 and AS to Montenegro, and we analysed those testimonies. And

16 after all of that, it is the conclusion of the Defence of the accused

17 Radomir Kovac that if there are any witnesses who are not telling the

18 truth, that it is more likely that these are Prosecution witnesses rather

19 than Defence witnesses.

20 One cannot but wonder why the Prosecutor is labelling Defence

21 witnesses so harshly and claiming they are -- they lied for the accused

22 Radomir Kovac. The Defence can think of only one reason. The Prosecutor

23 is labelling Defence witnesses as liars because they have no stronger

24 arguments with which to cast a doubt on their testimonies because Defence

25 witnesses with their testimonies seriously jeopardise the viability of the

1 indictment.

2 The Defence regrets to note that from day one of the proceedings,

3 the Prosecutor has targeted the accused Radomir Kovac with a special fury.

4 The Defence of the accused really cannot explain this. I would like to

5 believe I'm wrong. Add to this the statement of Witness 87 who stated

6 that the accused Radomir Kovac had never beaten her and had never

7 misbehaved towards her.

8 That would be the end of this part of my argument, and now I would

9 like to deal with the indictment itself.

10 The amended indictment of the 13th September 1999, the accused

11 Radomir Kovac is charged with the following: In Count 22, enslavement,

12 which constitutes a crime against humanity punishable under Article 5(c)

13 of the Statute of the International Tribunal. In Count 23, rape, which

14 constitutes a crime against humanity punishable under Article 5(g) of the

15 Statute of the International Tribunal. In Count 25, rape, which

16 constitutes a violation of the laws and customs of war, punishable under

17 Article 3 of the Statute of the International Tribunal. In fact, the

18 previous was Count 24. And Count 25, outrage upon personal dignity, which

19 is a violation of the laws and customs of war punishable under Article 3

20 of the Statute of the International Tribunal.

21 In this indictment the chapter referring to the actions of the

22 accused Radomir Kovac titled Counts 22, 25, with a subtitle enslavement

23 and rape of FWS-75 and FWS-87 in an apartment in the Brena Block, followed

24 by description of actions from items 11.1 to 11.6.

25 The Defence of the accused Radomir Kovac, exercising its right

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1 which follows from Rule 72(a)(ii), submitted a motion on the form of the

2 indictment emphasising that the indictment was unclear and imprecise and

3 also unspecific, and gave certain proposals. Reviewing this motion of the

4 Defence, the Trial Chamber partly approved it as indicated in paragraphs

5 17, 18, 19, 21, 22, 24, and 25 of their decision, and instructed the

6 Prosecutor's Office to amend the amended indictment.

7 In the amended indictment of 8th December 1999, it only partially

8 followed the instructions of the Trial Chamber and introduced only

9 insignificant modifications so that all the unclarities pointed out by the

10 Defence of accused Radomir Kovac in this indictment remained. If one is

11 to judge by the title in the indictment dated 8th December 1999, then the

12 accused Kovac, and we would have to do this if we take a strict view of

13 the indictment, is charged with enslavement and rape of Witnesses 75 and

14 87 in an apartment in the Brena Block, which actions are punishable as

15 specified in Counts 22 through 25 of the indictment. If this is so, then

16 the accused Radomir Kovac can only be charged with acts involving

17 Witnesses 75 and 87. Anything beyond that would mean overstepping the

18 indictment.

19 The Prosecutor gives himself the right to dispose of his

20 indictment the way he deems is best for him and disregarding the Rules of

21 Procedure and Evidence. He also took it upon himself to ask in his

22 closing argument that a sentence be pronounced to the accused Radomir

23 Kovac for torture, despite the fact that the accused Radomir Kovac was

24 never accused of this act, either in the indictment or at a later stage,

25 and there has never been any examination in the proceedings in that

1 direction. We also pointed that out in the motion.

2 The Defence of the accused Radomir Kovac expects that the Trial

3 Chamber will make a comprehensive review of all these remarks and

4 objections of the Defence to the indictment itself, bearing in mind other

5 comments both from the motion and from our closing argument, and reach an

6 appropriate decision.

7 When embarking upon an analysis of the indictment dated the 8th of

8 December, 1992, the Defence of the accused Radomir Kovac wishes to state

9 that it fully abides by all the positions and conclusions from the final

10 brief submitted to the Court and the Office of the Prosecutor marked LB1

11 through 30, noting the following: The accused Radomir Kovac joined the

12 Serb self-organised forces on the 17th of April, 1992, that is to say,

13 when the fighting in the town of Foca had already stopped.

14 During proceedings before the Trial Chamber, a large number of

15 witnesses were heard, inhabitants of the village of Mjesaja and the hamlet

16 of Trosanj. None of them mentioned the presence of the accused Radomir

17 Kovac, either in the village itself or in Buk Bijela, or in the bus that

18 transported these civilians to Foca, or in the school in Foca itself on

19 that day. As we already said, had the accused Radomir Kovac been present,

20 at least some of the witnesses heard would have recognised him during

21 their testimony in the courtroom. Even Witness 87, who was heard before

22 the Trial Chamber, did not mention that the accused Radomir Kovac was

23 present in the village of Mjesaja that day. The presence of Jagos Kostic

24 is mentioned, though, page 1666, lines 20 to 25 of the transcript. The

25 only thing that is certain is that had the accused Radomir Kovac been

1 present, she would have said so since she spent about four months in the

2 apartment he used.

3 The Prosecutor bases his claims in the indictment on a statement

4 of a false witness, Witness 75, whose statement in that part was already

5 analysed by the Defence of the accused Radomir Kovac, and we have also

6 presented our position and conclusion concerning that.

7 As for the enumeration of other places where the Serb forces

8 allegedly participated in attacks on surrounding villages as mentioned by

9 the Prosecutor in his closing argument, this was already discussed by my

10 learned colleague Slavisa Prodanovic. I should like to add the

11 following: The attack on Mjesaja and Trosanj was a purely military action

12 in order to deblock the road between Foca and Tjentiste, and also the

13 waterworks from Bijelava to Drina, that is, where it flows into the Drina

14 by Buk Bijela. This area was mined, and this area was taken by strong

15 Muslim forces.

16 By way of an illustration, in the book "The Shadow Over Igman" of

17 Mirsad Catic, nicknamed Cuperik, who was the superior officer of Husein

18 Alic, nicknamed Sokol, who was a Prosecution witness in this case, the

19 Battalion Sutjeska is mentioned under the command of Zaim Besovic who was

20 stationed in the region of the village of Zelengora and all the way up to

21 January 1993. Trebova is part of Mount Zelengora; it is just above the

22 village of Trosanj. So the Prosecutor's thesis is unfounded that this was

23 an attack on unarmed Muslim population. This battalion, according to this

24 book, had 600 armed soldiers and 120-millimetre motars. Otherwise, the

25 unit of the accused Radomir Kovac did not take part in this attack. The

1 order dated 7th of July, 1992, which was signed by Colonel Marko Kovac,

2 that is Exhibit No. 2 with the Prosecution, D2, one can see that this unit

3 was within the 1st Battalion, and at that time it was in the region of the

4 delineation line facing Gorazde.

5 As for the other claims that Serb forces allegedly attacked Serb

6 [as interpreted] villages as the Prosecutor has now said in his closing

7 argument, the Defence of the accused Radomir Kovac wishes to point out

8 that the Prosecutor did not mention any other villages during the

9 proceedings except for Mjesaja and Trosanj, and it was not ascertained

10 whether such attacks did take place and whether the accused Radomir Kovac

11 or his unit took part in this.

12 The accused Radomir Kovac, not only he but everybody else, can be

13 held accountable only for his own acts and within his own intent, and not

14 for everything that took place in the territory of Bosnia-Herzegovina, not

15 everything that took place during this unfortunate war. Now in his

16 powerlessness, the Prosecutor is trying to prove an all-out, systematic

17 attack against the unarmed Muslim population by stating in his closing

18 arguments something that he did not seek to prove during the proceedings.

19 If the Prosecutor wanted to prove this, as he said in his closing

20 argument, then he was duty-bound during the proceedings before this Trial

21 Chamber to present evidence that there was an attack against the villages

22 that are mentioned in the Prosecutor's closing arguments, and that the

23 accused, or at least their units, took part in these attacks and this was

24 an attack -- and that this was an attack against the civilian Muslim

25 population. In this way, in the deep conviction of the Defence, all of

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1 this is just empty talk.

2 As we've said, a subject of interest and presentation of evidence

3 was only the establishment of facts related to the events on the territory

4 of the municipality of Foca, and the Defence believes that in the

5 proceedings before this Trial Chamber, it is only these incidents that

6 were discussed.

7 Your Honours, I think that the time has come to take a break.

8 JUDGE MUMBA: Yes, Mr. Kolesar. We shall take a break and resume

9 at 11.30 hours.

10 --- Recess taken at 11.00 a.m.

11 --- On resuming at 11.28 a.m.

12 JUDGE MUMBA: Yes, Mr. Kolesar. You can continue.

13 MR. KOLESAR: [Interpretation] Thank you, Your Honour. I would

14 like to continue from where I broke off.

15 The accused Radomir Kovac was an ordinary soldier of the army of

16 Republika Srpska, and in that capacity participated in war operations that

17 were carried out by his military unit. These were combat operations that

18 took place against Muslim combat units in the territory of the

19 municipality of Foca and somewhat beyond. Fighting did not only take

20 place around the Muslim villages but also around the Serb villages.

21 Combat operations, that is to say, war operations against enemy

22 forces are one thing, whereas an attack against Muslim villages and Muslim

23 civilian population is something completely different. During the

24 proceedings, the Prosecutor did not prove beyond any reasonable doubt that

25 the accused Radomir Kovac participated in attacks against Muslim villages

1 and the Muslim civilian population.

2 The Defence of the accused Radomir Kovac believes that today it

3 should say a few words about the Dragan Nikolic Independent Detachment.

4 This is a unit that came into being through the self-organisation of the

5 Serb population in Foca. This unit later came to join the Foca Tactical

6 Group and was named after a killed soldier of that unit. The name is the

7 Independent Detachment Dragan Nikolic, by no means the 1st Independent

8 Detachment, as the Prosecutor said in his closing argument. This unit was

9 not the only unit in Foca; there were a few others as well.

10 The Defence of the accused Radomir Kovac does not deny that the

11 accused Radomir Kovac was a member of that unit. That was a regular

12 military formation directly subordinated to the commander of the Tactical

13 Group, which can be concluded on the basis of the combat order dated the

14 7th of July, 1992, which was signed by Colonel Marko Kovac. This is

15 Prosecutor's Exhibit number 2.

16 We also heard about the composition of this unit from Witness DO,

17 with a comment that in this unit, which numbered approximately 40 men,

18 during the war 21 soldiers were killed and many were wounded, some of them

19 several times. In military terms, such losses among the soldiers clearly

20 shows that this was not a unit that attacked Muslim villages and the

21 Muslim civilian population; this shows that it waged bloody battles

22 against Muslim armed forces.

23 During the proceedings, the Prosecutor did not deal with this

24 unit, and therefore it is quite unfounded for the Prosecutor to say that

25 all persons mentioned in these proceedings are members of that unit. If

1 something was not being established, then it is not correct to state

2 something in that regard, namely, in this particular case, about the

3 nature of this unit and the members of that unit. That unit never

4 belonged to the military police. It is absurd for the Prosecutor to claim

5 that in the Partizan Sports Hall an unknown soldier shot into the ceiling

6 and that he was a member of the Dragan Nikolic Unit. It is incorrect that

7 this unit took part in the attack against Muslim villages and the civilian

8 Muslim population, because during the proceedings this was not proven in

9 any way.

10 The Defence did not intend to speak about this, and perhaps it is

11 tiring the Court for no reason whatsoever; however, the Defence deems it

12 is necessary to respond to unfounded accusations levelled by the

13 Prosecutor. Not at a single moment did the Prosecutor ask who was a

14 member of which unit, and is directly or indirectly charging this unit

15 with everything that happened in Foca, and in some way it in this way

16 gives a bad name to this unit.

17 The Defence also believes that the stay of Witness 87 and AS in

18 Kovac's apartment has nothing to do with his military membership to that

19 unit. The girls stated that Kovac spent quite a bit of time in the field,

20 that is to say, outside the town of Foca. So the Prosecutor's thesis is

21 absurd, namely, that he intentionally enslaved these girls in his capacity

22 as a member of this unit.

23 The Defence of the accused Radomir Kovac continues to challenge

24 that the Prosecutor has proven the acts alleged in Count 4, acts and

25 omissions committed by the accused Radomir Kovac. This could be qualified

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1 as a crime if they were part of widespread, massive, and systematic

2 attacks against the civilian Muslim population in the municipalities of

3 Foca and Kalinovik. In this way, the accused Radomir Kovac had not

4 committed any crime for which he should be held accountable before this

5 International Tribunal because even if his criminal responsibility were to

6 be established for certain deeds, basic elements of a crime are lacking in

7 these deeds, that is to say, those that constitute serious violations of

8 international humanitarian law, that is to say, that he could not be held

9 responsible for war crimes.

10 The Defence of the accused Radomir Kovac as regards allegations

11 from the indictment under items 11.1 and 11.2, fully abides by the

12 positions and conclusions presented in the written final brief submitted

13 to the Court and Office of the Prosecutor under items Le1 to Le23.

14 The Defence of the accused Radomir Kovac wishes to add that at the

15 time when the accused Kovac took in these girls, in Foca there was no

16 organised collective accommodation for refugees from the Muslim entity.

17 He had acquaintances in Montenegro through which he could have the girls

18 transferred to Montenegro, which is confirmed by Witness 75, which he did

19 when the opportunity arose for that.

20 Furthermore, although we already mentioned this in our written

21 final brief and irrespective of what the witnesses stated, objectively

22 speaking, there is an enormous difference in their general position and

23 status viewed in terms of their position and situation, viewed in general

24 in relation to the high school, Partizan, and Karaman's House, and all of

25 this in an apartment in the Lepa Brena building.

1 The accommodation conditions, the maintenance, the personal

2 hygiene, and food, may I remind you that they ate the same food that the

3 accused Kovac and Jagos Kostic ate when they were there. The possibility

4 of watching television and listening to the radio, going out to cafes,

5 either with the accused or on their own, objectively constitute much

6 better conditions than the conditions that prevailed in collective,

7 temporary accommodation facilities.

8 Let us add to all of this the statement of Witness 87 who, in

9 response to the question of the Defence counsel of the accused Radomir

10 Kovac as to whether she thinks that the fact that they cleaned the

11 apartment, that they cooked for themselves and for them when they were not

12 there, does she think that this is not normal, or rather, does she think

13 that something is wrong about that, the witness replied, "I do not think

14 that this is not normal. We were not engaged in any hard physical

15 labour. This was regular housework. That is normal."

16 THE INTERPRETER: Could counsel please speak into the microphone.

17 MR. KOLESAR: [Interpretation] This is page --

18 THE INTERPRETER: The interpreter didn't get the page number of

19 the transcript.

20 JUDGE MUMBA: The interpreters can't get you clearly. Please

21 speak into the microphone. The page number?

22 JUDGE HUNT: You started to give a page number, and the

23 interpreters said they could not hear it.

24 MR. KOLESAR: [Interpretation] The page number is 6126 of the

25 transcript, and I do apologise to the interpreters.

1 Defence of the accused Radomir Kovac in relation to allegations

2 made in the indictment under item 11.3 also abides by all its positions

3 and conclusions presented in its written final brief submitted to the

4 Court and the office of the Prosecutor. On this occasion, the Defence

5 wishes to highlight and emphasise the following: The allegation in the

6 indictment that the accused Radomir Kovac brought Slavo Ivanovic into his

7 apartment and ordered Witness 75 to have sex with him and that he beat her

8 up when she refused that is unfounded.

9 With regard to this event, Witness 75 herself, as we have said so

10 many times, has given contradictory statements. In her statement given on

11 November 15th to 18th, 1995, Defence Exhibit 24A, she said that one

12 evening the accused Kovac brought Slavo Ivanovic into the apartment and

13 ordered her to have sex with him, that she refused this, and that the

14 accused Kovac beat her up. However, before the Trial Chamber she

15 considerably expanded on this statement. Then she also said that Zoran

16 Vukovic appeared there, and that she was ordered to go to the kitchen with

17 him.

18 With such statements which considerably differ, the witness

19 herself showed that her statements are not trustworthy and that her

20 credibility as a witness has been brought into question to such an extent

21 that no decision to be made by this Court can be based on her statement.

22 This conclusion of the Defence is based on the fact that Witness

23 87 on page 1831 of the transcript on the trial in response to a repeated

24 question put by the Prosecutor as to whether there were men who came to

25 the apartment of the accused Kovac and whether someone could come into the

1 apartment without her seeing this, this witness replied that she did not

2 think that this could take place.

3 Witness 87 and Witness AS, who were both in the apartment

4 mentioned also during the period when 75 was in the apartment, did not

5 mention any soldier coming in, let alone Slavo Ivanovic. It is quite

6 clear that no one else could have come or did come to the apartment of the

7 accused Kovac, nor did he have any contact with the mentioned witnesses.

8 When all of this is brought together with the evidence presented

9 by the Defence, especially the statement made by Witness DK, who recounted

10 the events of Christmas Eve -- that is to say, January 6th, 1993, when the

11 accused Kovac intervened and drove away from the door a soldier who was

12 disturbing the witnesses, and this account was confirmed by Witness 87 as

13 well -- then it is quite clear that the Defence position is well-founded

14 and that no soldiers came to the apartment. Namely, if Witness 87

15 remembers this event, that is to say, just an attempt made by a soldier

16 unknown to her to enter the apartment, then she certainly would have

17 remembered if some other soldier had come into the apartment at a

18 particular time and that such a witness [as interpreted] would rape

19 Witness 75 or take her somewhere.

20 The allegation made in the indictment that on the occasion when

21 Witness 75 allegedly refused to have sex with Slavo Ivanovic and that the

22 accused Kovac beat her up was not proven; namely, such a thing does not

23 stem from the testimony of 75 herself, who describes the event as follows,

24 that the accused Kovac only slapped her, and there is a major difference

25 between a slap and beating up. Therefore, the Defence believes that this

1 fact was not proven by the Prosecutor.

2 In this regard, the Defence of the accused Radomir Kovac points to

3 the analysis of part of the statement made by Witness 75, presented today

4 in the oral closing arguments and which pertains to the alleged event

5 concerning Slavo Ivanovic and the accused Zoran Vukovic. The Prosecutor,

6 in the opinion of the Defence, for want of true and proper arguments and

7 evidence that the accused Radomir Kovac brought into the apartment other

8 soldiers so that they could have sex with the girls in the apartment,

9 through the false testimony of Witness 75, attempts to present the

10 existence of these events, notably, in the written final brief presented

11 by the Prosecutor in paragraphs 250 to 252. It is more than sure that

12 these events did not take place as represented by Witness 75, that neither

13 Slavo Ivanovic nor Zoran Vukovic came to Kovac's apartment during the time

14 while Witness 75 was staying there very briefly.

15 In all fairness, the accused Zoran Vukovic was there on one

16 occasion, only at the door, namely, when he brought the uniform and

17 clothes of the accused Radomir Kovac after he had been wounded. At that

18 time, Witness 75 was no longer staying at the apartment and the accused

19 Radomir Kovac was in hospital.

20 For the Defence of Radomir Kovac, it is inexplicable why the

21 accused Zoran Vukovic was brought into all of this. The allegation made

22 by the Prosecutor cannot be understood or explained, that is, that in

23 connection with this incident, Zoran Vukovic is not being accused because

24 the Prosecutor did not know anything about this incident before the trial

25 started. The Defence of the accused Radomir Kovac is not interested in

1 why there was no accusation, but it believes that it is inappropriate and

2 unfair by the Prosecutor to bring in this alleged event so that the

3 accused Radomir Kovac would be accused of bringing other soldiers into his

4 apartment so that they could have sex with the girls in the apartment and

5 in order to paint as bad a picture of him as possible. They asked in

6 their brief that this be taken into account as an aggravating

7 circumstance. I am referring to the alleged coming of Zoran Vukovic.

8 The Defence, in its written final brief submitted to the Court and

9 the Office of the Prosecutor, and also at the beginning of its closing

10 arguments today, analysed the statement of Witness 75. The Defence

11 continues to claim that this statement is not truthful and that on the

12 basis of this statement, there cannot be any conviction beyond any

13 reasonable doubt.

14 Witnesses 87 and AS, as we mentioned, on several occasions claimed

15 that throughout their stay in the apartment, no other soldiers came to the

16 apartment in order to have sex with the girls and that no one in the

17 apartment had contact with the witnesses. Witness 87 stated that she saw

18 the accused Zoran Vukovic twice: once outside the apartment and once in

19 the apartment that was used by the accused Radomir Kovac, that is to say,

20 when he brought his uniform after the accused Radomir Kovac was wounded.

21 Statements of Witness 87 and AS were certainly the reason why Zoran

22 Vukovic was not accused of this, rather than the Prosecutor's unawareness

23 of this alleged incident before the beginning of the trial, bearing in

24 mind, by all means, Rule 50 of the Rules of Procedure and Evidence.

25 The accused [as interpreted] of the accused Radomir Kovac once

1 again looks at this inappropriate move made by the Prosecutor with regret

2 and surprise. The Prosecutor involves an alleged incident with the

3 accused Zoran Vukovic into all of this, although this does not exist in

4 the counts in the indictment for which the accused Radomir Kovac is being

5 charged.

6 THE INTERPRETER: Could counsel please slow down.

7 JUDGE MUMBA: Mr. Kolesar, please slow down. The interpreters

8 can't keep up.

9 MR. KOLESAR: [Interpretation] In the opinion of the Defence, there

10 is no reason why this event should not be mentioned. The Prosecutor

11 attempted to make the same kind of trick with the accused Zoran Vukovic

12 when not indicting him and brought into the story the event with the

13 cousin of Witness 75 in Buk Bijela; and then at the suggestion of His

14 Honour Judge Hunt, this section was struck from the indictment. We

15 believe that the situation is identical and that this part of the closing

16 argument of the Prosecutor should not be taken into account at all.

17 The Defence of the accused Kovac, in relation to allegations in

18 the indictment under items 11.4, analysed, in the written final brief that

19 was submitted to the Trial Chamber and the Office of the Prosecutor, all

20 relevant facts under item Le25; and the allegations from the indictment

21 under item 11.5 were considered in the same final brief under item Le26,

22 along with an analysis of the witness statements presented at the

23 beginning of its arguments presented today. The Defence fully abides by

24 all the positions and conclusions presented.

25 With reference to Count 11.6 of the indictment, the Defence of the

1 accused Radomir Kovac again abides by all its statements and conclusions

2 presented in its closing brief under paragraphs Le27 and the analysis made

3 today of the witness testimonies of 87 and AS.

4 To repeat, Witness 87, if she did hear a discussion, could not

5 have heard the entire course of the conversation, as she herself

6 confirmed; she could only have heard that part of the discussion which

7 concerned the amount of money Kovac would pay for the Montenegrins to take

8 her and Witness AS to Montenegro.

9 Based on this analysis, the Defence maintains that the Prosecutor

10 has not proved beyond reasonable doubt that the accused committed the acts

11 described in Counts 11.1 to 11.6 of the indictment, nor has he proved any

12 facts on the basis of which the accused Kovac could be found guilty of any

13 of the crimes alleged against him in Counts 22 to 25 of the indictment.

14 Before we embark upon an analysis of the legal issues and

15 circumstances significant for sentencing, we shall dwell briefly on a

16 question connected to the motion of the Defence of the accused Radomir

17 Kovac for rejoinder of the 25th of October, 2000, submitted under

18 Rule 85 (a)(iv) of the Rules of Evidence and Procedure.

19 The Defence of the accused Radomir Kovac on the 25th of October,

20 2000, submitted to the Trial Chamber a motion for the presentation of

21 evidence by the Defence in the form of a rejoinder, asking the Trial

22 Chamber to call three witnesses under Rule 85(a)(iv). The Prosecutor

23 objected.

24 JUDGE MUMBA: Mr. Kolesar, your submission on this matter is

25 uncalled for because after the decision of the Trial Chamber, the Defence

1 of Radomir Kovac did not appeal. So you cannot make submissions on it now

2 because once you did not appeal during the period that you are supposed to

3 appeal, the legal position is that you accepted the decision of the Trial

4 Chamber. So you cannot raise it in your closing arguments. Please move

5 on.

6 MR. KOLESAR: [Interpretation] Thank you, Your Honour. In that

7 case, I shall proceed to consider the legal issues pertaining to the

8 accused Radomir Kovac. [Technical difficulty]

9 JUDGE MUMBA: We aren't getting translation, please.

10 THE INTERPRETER: The interpreter apologises. The microphone was

11 not switched on.

12 MR. KOLESAR: [Interpretation] As in the amended indictment, in

13 paragraphs 11.1 to 11.6, the accused Kovac is charged with actions

14 described as enslavement.

15 As in the amended indictment, in paragraphs 11.1 to 11.6, the

16 accused Kovac is charged with actions described as enslavement in item 22;

17 rape, punishable under Article 5(g) of the Statute, Count 23; rape,

18 punishable under Article 3 of the Statute, Count 24; outrages upon

19 personal dignity, Count 25. The Defence of the accused Kovac will present

20 briefly its understanding of the legal issues in relation to these counts,

21 bearing in mind everything that the Defence has put forward as part of the

22 joint closing brief in paragraph 3N.

23 In Count 22 of the amended indictment, the actions described in

24 the above-mentioned paragraphs are described as enslavement, punishable

25 under Article 5(c) of the Statute of the International Tribunal. The

1 actions that are described and that could be described in this manner are

2 the ones referring to the imprisonment of Witnesses 87, 75, AS, and AB in

3 the apartment of Kovac in the Lepa Brena building where the witnesses were

4 forced to perform household chores and sexually satisfy soldiers. This

5 action could also include the taking of these witnesses in that time

6 period to other apartments, to the Zelengora Hotel and to the Pod Masala

7 neighbourhood. At least, this is what transpires from the description of

8 the actions given in Counts 11.2 to 11.6, because as we have already said,

9 the Prosecutor does not treat the actions for each criminal offence

10 separately, thus making possible a broad interpretation of the elements of

11 particular criminal offences which certainly affects the possibility of

12 preparing an adequate defence for the accused.

13 The Defence has put forward its joint position on enslavement

14 under N3, and the Prosecution has failed to prove beyond any reasonable

15 doubt that elements of enslavement, the criminal act of enslavement,

16 existed which has to contain the elements we drew attention to in the

17 joint part under N3.

18 In relation to the accused Kovac in the opinion of the Defence, no

19 witnesses have testified that they were denied freedom of movement.

20 During their stay in the flat, Witnesses 87 and AS, who spent somewhat

21 longer there than Witnesses 75 or AB, moved freely.

22 The Defence submits that the Prosecution has failed to prove

23 beyond any reasonable doubt that witnesses 87, 75, AS, or AB were taken to

24 the apartment of the accused Kovac in order to be used to perform

25 household duties and to sexually satisfy soldiers. None of the witnesses

1 confirmed that other soldiers came to that flat, except for the accused

2 Kovac and Jagos, during the time Witnesses 87 and AS were in the flat.

3 The fact that these witnesses were able to leave the flat freely

4 and that they did not complain to anyone that they were imprisoned, and

5 that they did not take any action to change the situation, any action that

6 would amount to an attempt to leave or to flee from that flat, all this

7 points to the fact that they themselves did not consider their stay in the

8 accused Kovac's flat to amount to imprisonment.

9 The actions they performed in the flat, such as doing laundry or

10 cleaning or preparing food, could not be considered forced labour and

11 imprisonment because this was work that they normally did for themselves

12 and only in some cases for the accused Kovac when he stayed in the flat

13 for brief periods of time.

14 Therefore, these actions cannot be thought to constitute the

15 criminal offence of enslavement because none of the girls confirmed that

16 they did those jobs under duress or coercion.

17 For the criminal offence of enslavement to exist, it has to be

18 proved that the perpetrator intended for any reason to enslave a person

19 permanently, or at least for a prolonged period of time, certainly for

20 longer than a few months. The time period --

21 JUDGE MUMBA: Mr. Kolesar, what would be an appropriate length?

22 What would be an appropriate period of enslavement for you?

23 MR. KOLESAR: [Interpretation] The time period of a few months in

24 which a person could be, conditionally speaking, imprisoned, which would

25 have to completely exclude any freedom of movement, which did not happen

1 in this case, cannot mean that the conditions have been met for this

2 situation to be considered as enslavement.

3 Have I answered your question, Your Honour?

4 JUDGE MUMBA: Not exactly. I was asking about the time period,

5 because you did say this was just for a few months. Now you are talking

6 about exclusion of freedom. That's not the point.

7 If according to your own definition of enslavement there is

8 whatever you think enslavement amounts to, I'm asking about the time

9 period. What time period would be the relevant element of enslavement to

10 you?

11 MR. KOLESAR: [Interpretation] In any case, not a few months, but

12 longer. More than five months. Five months or more.

13 JUDGE MUMBA: Thank you.

14 MR. KOLESAR: [Interpretation] As Witnesses 75 and AB were in the

15 said flat of the accused Kovac for only a few days, the application of

16 Article 5(c) of the Statute has to be absolutely excluded in relation to

17 these witnesses because there are no elements of the criminal offence of

18 enslavement in relation to them.

19 The Defence maintains this because the accused Kovac, after the

20 departure of Witnesses 75 and AB from his flat, had nothing further to do

21 with their further movements in connection with the flat at the Zelengora

22 Hotel or the other one, Pod Masala, and he knew nothing about when or

23 where these witnesses left the territory of Foca.

24 Witnesses 87 and AS were taken from the flat without the knowledge

25 of the accused at the time when he was not there but was out on the ground

1 carrying out his battle tasks. Since Witnesses 87 and AS spent somewhat

2 more time in that flat, the question might be raised as to whether this

3 could be considered imprisonment in view of the length of time. However,

4 the Defence maintains that this period that the witnesses mentioned, that

5 is, the time spent in Kovac's apartment, is not long enough for it to be

6 thought that there was an intention of enslaving these two, especially as

7 there was a special relationship between the accused Kovac and Witness 87.

8 Therefore, the Defence maintains that the Prosecutor has failed to

9 prove that the accused committed the criminal offence of enslavement under

10 Count 22 of the amended indictment.

11 JUDGE MUMBA: [Previous translation continues] ... Mr. Kolesar,

12 having submitted that a period of five months or more is what would be

13 accepted to you as enslavement, is there any legal source for this, any

14 international instrument, any piece of legislation, any case law? Only on

15 the period, five months or more.

16 MR. KOLESAR: [Interpretation] Your Honour, that is my assessment.

17 As far as I know, in legal practice and theory there is no precise

18 definition of the time period required for there to be a criminal offence,

19 because in my humble opinion, it is not only the period of time that is

20 the decisive factor which can lead to a conclusion as to whether there was

21 enslavement or not. It is just one of the factors that have to be

22 considered.

23 JUDGE MUMBA: Yes. That is the point I was trying to make. Thank

24 you. You may proceed.

25 MR. KOLESAR: [Interpretation] Therefore, accepting the submissions

1 put forward in the closing brief under N1 with reference to the criminal

2 offence of rape, the Defence submits that the Prosecution, in relation to

3 the accused Kovac, could not describe under Article 5(g) of the Statute

4 and under Article 3 of the Statute this offence, because if an offence is

5 provided for in a special provision, as has been done in Article 5(g) of

6 the Statute, then only that provision must apply, and the provision of

7 Article 3 of the Statute, as a kind of general provision, cannot be

8 applied.

9 The provision of Article 3 of the Statute, which is held to

10 represent a general provision -- and the Defence does not accept this, for

11 the reasons put forward in the closing brief under N1 -- cannot be applied

12 in relation to the accused Kovac or in relation to the accused Kunarac and

13 Vukovic, as the Defence counsel have put forward.

14 The Defence holds that the Prosecution has not proved beyond

15 reasonable doubt even the most basic elements of the criminal offence of

16 rape in the actions of the accused Kovac. The Prosecutor has not proved

17 that the sexual relations the accused Kovac had with Witness 87 had

18 anything to do with the armed conflict or some other goal apart from the

19 goal of sexual satisfaction or, rather, of satisfying one's sexual

20 instinct, all the more so as Defence witnesses speak of a special

21 relationship between the accused Kovac and the witness. It is evident

22 that the accused Kovac had very positive feelings, evidently positive

23 feelings, towards Witness 87.

24 In view of these facts, the Defence finds that due to lack of

25 evidence that would prove that the accused entered into these sexual

1 relations as part of a widespread or systematic attack on the civilian

2 population, there are no elements of rape or of crimes against humanity or

3 of violations of the laws and customs of war, and that the accused did not

4 commit the criminal offences described in Counts 23 and 24 of the amended

5 indictment.

6 In Count 25 of the amended indictment, the accused Radomir Kovac

7 is charged with committing the criminal offence of outrages upon personal

8 dignity by the actions described in paragraphs 11.1 to 11.6 of the amended

9 indictment. The Prosecutor again has failed to pinpoint the actions

10 described as the crime of outrages upon personal dignity, as the

11 Prosecutor states in Count 25 that the accused Kovac has perpetrated the

12 crime of outrages upon personal dignity, which is a violation of the laws

13 or customs of war punishable under paragraph 3 of the Statute.

14 The Defence, in the joint part of its closing brief under N4 has

15 put forward its legal understanding of the possibility of incrimination in

16 terms of this particular crime. The Defence of the accused Kovac, relying

17 on the above-mentioned joint standpoint of the Defence, considers that the

18 accused Kovac cannot be accused cumulatively of this act and of the

19 criminal offence of rape because the consequences --

20 THE INTERPRETER: Would the counsel please slow down.

21 MR. KOLESAR: [Interpretation] Because the consequences of this

22 criminal --

23 JUDGE MUMBA: [Previous translation continues] ... slow down for

24 the interpreters.

25 MR. KOLESAR: [Interpretation] -- offence is on outrage upon the

1 personal dignity of the victim.

2 Your Honour, I wish to take as little time as possible, and that

3 is probably why I keep going too fast.

4 JUDGE MUMBA: The best way to take as little time as possible is

5 simply to refer the Trial Chamber to the pages of your written

6 submissions, because they are already here; they are already on record.

7 JUDGE HUNT: May I add to that. Mr. Kolesar, I assume that you

8 and Mr. Jovanovic have somehow divided up today so that Mr. Jovanovic gets

9 a fair go, because the submissions have to finish today, as was pointed

10 out to you.

11 MR. KOLESAR: [Interpretation] Your Honour, I had all this in mind

12 and I agreed on this with my colleague Mr. Jovanovic, but at your

13 suggestion and recommendation and insistence, I shall now shorten my

14 closing statement. And I will now begin to consider the circumstances

15 relevant for sentencing, and I will say only one thing.

16 What has been -- to what has been said so far, I will add the

17 following, and this refers to the personality of the accused. The accused

18 Radomir Kovac was born and grew up in Foca, in a city inhabited by

19 Muslims, Serbs, and Croats, as well as other national minorities. He was,

20 as we heard, an excellent student. He graduated from the secondary school

21 in Foca with honours and enrolled in the architecture faculty in Sarajevo,

22 which he did not graduate from due to lack of means. He lived and worked

23 in Sarajevo, a town with a mixed population, for about ten years. He

24 consorted with both Serbs and Muslims. In Sarajevo he lived for a long

25 time, together with a schoolmate who was a Muslim. He never

1 discriminated. He never believed in the possibility that the war would

2 break out. By a combination of circumstances, he took part in that war in

3 one of the warring sides.

4 You will remember that Defence witnesses have told you that the

5 accused would often console them by saying that all that would not last

6 long and that the war would end and everybody would continue living

7 together as before. He was never interested in politics and he never

8 believed in the crazy ideas of lunatic politicians. We have presented

9 evidence to prove that he was never a member of any political party.

10 In the war itself, to the extent possible, he tried to protect

11 persons of Muslim ethnicity. He fell in love with one of them, and when

12 in December of 1992 he was wounded in fighting with Muslim forces, his

13 attitude towards that girl had not changed. On the contrary; he continued

14 to take care of her and Witness AS and made it possible for them to be

15 transferred to Montenegro, away from the hell of war.

16 Among other mitigating circumstances, which have been stated in

17 the final brief, are these circumstances as well, which should be given

18 proper weight as well. We find it therefore odd on the part of the

19 Prosecution that they say the accused Kovac was a cynic who caused

20 suffering to members of other ethnicities just because they were Muslims.

21 And to conclude, I would add only a couple of more sentences.

22 The Defence of the accused Kovac must say that they -- we are very

23 surprised by the unfounded proposal of the Prosecution regarding the

24 sentence which should be handed down to the accused Kovac, namely, not

25 less than 30 years of imprisonment. The Defence of the accused Kovac

1 shall reiterate its position that the maximum sentence for the most

2 serious criminal acts of rape with legal outcome under Yugoslav law, and

3 that is in keeping with Article 24 paragraph 1 of the Statute, must be

4 applied. This was discussed in detail and eloquently by my colleague,

5 counsel Slavisa Prodanovic, in his closing argument. I subscribe to that

6 completely and will not take more of your time dealing with this.

7 Reiterating the position that the Prosecution has not proven

8 elements of criminal acts with which the accused Kovac is charged, the

9 Defence believes -- the Defence must point out that claims of the

10 Prosecution to the effect that Witnesses 87 and 75 said that Kovac had

11 beaten them are inadmissible. If we take -- allow that the accused Kovac

12 raped these witnesses, which the Defence believes has not been proven,

13 then the threats or the force used, if any, can by no means be an

14 aggravating circumstance. The allegations of the Prosecution that among

15 the aggravating circumstances are keeping Witness 75 as a sex slave or the

16 requirement of Witness 75 and 87 and AB to stand naked and dance on the

17 table at gunpoint cannot be mitigating [as interpreted] circumstances

18 because they are elements of the same criminal act, so they cannot at the

19 same time be both elements of the criminal act and aggravating

20 circumstances in the general behaviour of the accused.

21 As the Prosecutor has not proven before the court in Martial and

22 Makassar in case Takeuchi Hiroe, who was convicted to five years of

23 imprisonment for raping a woman who was at his place -- who was from

24 November 1943 until October 1944, and he did not answer for her

25 enslavement, that is, sexual enslavement. The Prosecutor in this case

1 asked for ten years' imprisonment. In that case, the forenamed Takeuchi

2 Hiroe was convicted to five years imprisonment for raping a woman who was

3 kept by him from November 1943 to October 1944 without answering for

4 enslavement, and the Prosecutor in this case asked for ten years.

5 I also reviewed other judgements which could be relevant, but I

6 think they cannot be -- they cannot apply to the case of the accused

7 Kovac, because other cases involved superior officers, whereas Kovac was a

8 simple soldier.

9 The evidence produced in this case showed that Kovac protected

10 witnesses, who were at his apartment, from third parties, which was

11 confirmed by the witnesses themselves. And repetition of descriptions of

12 actions with which the accused Kovac is charged as actions constituting a

13 criminal act and calling them aggravating circumstances means that the

14 Prosecution is practically displaying their impotence to prove any serious

15 fact which could be considered as an aggravating circumstance.

16 The only new fact put forward by the Prosecution as an aggravating

17 circumstance is the allegedly untruthful defence of the accused Kovac

18 which fact cannot under any legal system be considered an aggravating

19 circumstance; namely, if we see the decision in the statute of the

20 so-called Roman court, it is completely clear that this statute prescribes

21 the right to defence of the accused as this right is guaranteed by the

22 international convention on the right to defence, and that means that the

23 accused himself is allowed not to speak the truth when defending himself

24 without that being taken as an aggravating circumstance.

25 In this case, in these proceedings, the accused Kovac did not

1 testify at all, so his defence cannot be evaluated as untruthful.

2 The evidence presented by the Defence to establish the

3 relationship between the accused and Witness 87 are truthful. The

4 attempts of the Prosecutor to discredit the evidence put forward by the

5 Defence is perhaps understandable, but it is by no means acceptable

6 because this evidence has not been shaken even by the evidence presented

7 in the rebuttal case.

8 Witness 87 stayed at the apartment of the accused Kovac waiting to

9 be transferred to a safe territory away from the war and had a completely

10 normal treatment of a woman in the family, so any behaviour of the accused

11 Kovac cannot be qualified as an element of a criminal action with which he

12 is charged, and even less as an aggravating circumstance.

13 The stance of the Prosecutor that the accused Kovac displayed

14 unjustified evil intent in performing these criminal acts by threatening

15 to cut the throats of Witnesses 87 and 75, that he allegedly said that he

16 had killed the brother of Witness 75, and that he had humiliated her by

17 making her dance on the table and walking outside alone, is simply not

18 accurate and is unacceptable.

19 The witnesses did not confirm that they had suffered any physical

20 violence, nor any physical abuse, because slapping cannot be qualified --

21 slapping because they had gotten drunk cannot be qualified as such. It is

22 wrong to say that he raped them both to the music of Swan Lake because

23 none of them said this. And furthermore, the Prosecutor again repeats the

24 actions of the accused Kovac which he enumerates as actions constituting a

25 criminal act, but now in the capacity of aggravating circumstances, which,

1 of course, cannot be acceptable.

2 Concluding my defence, we take the view that the Prosecutor has

3 not proven beyond a reasonable doubt the acts described in paragraphs 11.1

4 to 11.6 of the indictment, nor has proven the facts based on which the

5 accused Radomir Kovac could be found guilty in Counts -- under Counts 22

6 to 25 of the indictment. Therefore, the Defence suggests that the Trial

7 Chamber brings an acquitting decision with respect to the accused Radomir

8 Kovac.

9 With this, I would like to thank the Trial Chamber for their

10 attention, and I assure you that I was disrupted considerably in my

11 concentration because I was prevented from taking this, my last chance, to

12 say everything that I wanted. Thank you.

13 JUDGE MUMBA: Mr. Kolesar, everything is in writing. I've said

14 this before: Repeating it orally does not make it any better.

15 Mr. Jovanovic, I hope you have been taking count of the Trial

16 Chamber's guidance -- yes, put on your earphones. I hope that you have

17 been taking note of the Trial Chamber's guidance to your colleagues before

18 you.

19 MR. JOVANOVIC: [Interpretation] Yes, Your Honour.

20 JUDGE MUMBA: You may proceed.

21 JUDGE HUNT: May I just stop you for a moment. We've got a very

22 alarming note on our screens that LiveNote is going to close. I'm glad to

23 say it's not on the laptop, but if it's going to close, we better get it

24 closed and reopened so we can hear -- both hear and read what

25 Mr. Jovanovic is going to say.

1 JUDGE MUMBA: Can we be informed of the problem, Madam Registrar?

2 THE REGISTRAR: [Interpretation] The technical booth informs me

3 that there is no trouble whatsoever. We can just continue working as we

4 have been doing. They are now working at treating the transcript as

5 already being entered into the system.

6 JUDGE MUMBA: Thank you. Mr. Jovanovic, you can proceed.

7 MR. JOVANOVIC: [Interpretation] Your Honours, distinguished

8 colleagues, the Defence of Mr. Zoran Vukovic has the honour of addressing

9 you towards the end of this trial and presenting its opinions, positions,

10 and conclusions related to these past several months. In our oral closing

11 arguments, I intend to touch upon a few issues and perhaps provide a few

12 answers with relation to certain general circumstances concerning the

13 identification of witnesses, the credibility of witnesses, and also, by

14 all means, the crimes that my client is being charged with.

15 I feel a bit uneasy because I have to start my closing arguments

16 with a personal point of view; namely, it concerns the following: I think

17 that we here at this trial were not supposed to discuss general

18 circumstances at all. It is not up to us. However, since we have already

19 taken that direction, then perhaps we should have discussed this to the

20 extent to which this is possible. Half-done things are worse than things

21 not done at all.

22 The Defence is truly sorry for not having been in a position to

23 provide some of the materials we had because we believe that these

24 materials would have cast more light on events dating back a few years,

25 but we are where we are, and we cannot go into that now.

1 When I said I would touch upon certain issues, I actually meant

2 one single issue, and that is the question of the secondary school, its

3 role and, may I paraphrase, what has been called keeping persons under

4 inhumane living conditions. These conditions were taken out as an example

5 for a general pattern of behaviour, so let us take a closer look at this.

6 This secondary school in Foca is claimed to have been a prison or

7 a detention centre where persons who were detained were put into, I must

8 admit, rather inhumane conditions of survival where certain basic human

9 needs were being denied to them.

10 You see, when we start to construct a building, we have an idea as

11 to what this building should be. It would be quite wrong to build a

12 building and then to say, "What are we going to do with this?" This

13 school was intended to be a school, and it was meant to be a school. If

14 we are now trying to turn this school into something different, that is to

15 say, a detention centre, then it has to meet the necessary requirements.

16 The basic idea of a detention centre is that persons, of course,

17 cannot leave the place when they want to, but when we want them to. That

18 is to say, that somehow this school would have to be adjusted to meet the

19 requirements of a detention centre. How can we do this? We can put bars

20 on the windows. We can build a big wall around it with a small opening, a

21 small door that we are going to keep under our control. Also, we can

22 bring in a lot of guards, security officials who will take care of these

23 persons, and who will not allow these persons to leave this area whenever

24 they want to.

25 Out of all of this, what we have here are two guards at the

1 entrance to this building who take turns in certain cycles as guards' duty

2 requires. From the testimonies, we see that the witnesses had the

3 possibility to communicate and to move within the building, and also

4 outside the building. They actually left the building. If it is so, then

5 this building loses all the attributes of a prison or a detention centre.

6 Another thing that was mentioned here are these inhumane living

7 conditions. We are talking about the summer of 1992 in Foca. The

8 analysis of the alibi of Mr. Kunarac shows us his movements. This tells

9 us indirectly where the front line is: It is between 6 to 22 kilometres

10 away. That again indirectly shows that these places are at opposing

11 points. That shows us that at that time there was -- there was an

12 encirclement around Foca, and there was a lifeline road, but it is

13 anything but safe, and it led to Montenegro.

14 In such conditions, to object to someone for having not provided

15 enough food to the other one, or blankets or mattresses, hot water, means

16 of personal hygiene, I think that that is wrong.

17 Those are the questions that I bore in mind when I said that I

18 would speak about the secondary school.

19 The next thing that I wish to say is the problem of

20 identification. This problem was raised several times in this courtroom,

21 and as usual, the Prosecution and the Defence have opposing views on

22 this. From the transcript we see that in a situation when a witness was

23 supposed to identify a person, two expressions were used. One was

24 "identification," and the other one was "recognition." These two

25 expressions are contrary to one another, both in terms of terminology, but

1 also more importantly so in terms of their quintessential meaning. It

2 presupposes some knowledge we must have had from before.

3 For example, we all know what an airplane looks like, regardless

4 of whether it's a military plane, a civilian plane, a big plane, a small

5 plane, we all know what a plane looks like; and we will never make a

6 mistake and say that that is a pyramid or that that is a bridge because we

7 know what a pyramid looks like and what a bridge looks like and what an

8 airplane looks like.

9 You see, whenever I come home, my son asks me which plane I took

10 when I was flying in. If I don't know how to answer him, he brings me his

11 book with airplanes and he says, "Show me which plane you took." Well,

12 that is identification.

13 Here in the courtroom we had identification. Every witness was

14 told to look around herself or himself and to select a person in

15 connection with whom that person believes the question was put. That is

16 the way it went until the Defence became aware of a banal technical

17 problem which had unwanted implications. That happened when Witness 95

18 was being examined. That is when we reacted, as well. We were right, and

19 we were proven to be right very soon. Already the next witness, the last

20 witness at that, who was charging Mr. Zoran Vukovic with certain

21 allegations, did not recognise this -- did not recognise the accused Zoran

22 Vukovic.

23 If we, if we in this courtroom know that I am attorney Goran

24 Jovanovic, and if a few minutes later we ask this person who I am, and I'm

25 sure -- who is attorney Goran Jovanovic, I'm sure that no person would

1 have a problem with saying that I am Goran Jovanovic.

2 The Defence is greatly concerned because of this. Therefore, the

3 Defence has a united stand with regard to this and proposes that in view

4 of all the identifications that were carried out in this courtroom under

5 these circumstances, the Trial Chamber does not accept them. They simply

6 are not credible and cannot be used.

7 In the case of Mr. Zoran Vukovic, there is a problem that is a bit

8 more specific, that is precisely this problem of recognition. I'm not

9 sure now whether I can speak about this because this document was not

10 introduced as evidence, and it did not expound it; but it was mentioned in

11 passing, so to speak, during this trial, and that is the question of

12 recognition by Witness 50. I know that this was not included in evidence;

13 however, we have this document in our files, and I believe that perhaps it

14 would be advisable if we were to discuss this document a bit because this

15 could lead to other consequences.

16 JUDGE MUMBA: You yourself are saying that this document was not

17 produced in evidence, so you cannot base your closing arguments on

18 something that is not on record, because the Trial Chamber can only apply

19 evidence which is on record, oral evidence, material evidence, electronic,

20 whatever.

21 So if it's not on record, please do not refer to it because we

22 have no way of looking at it, indeed, any other party. And it is not

23 allowed, anyway, to look at evidence which has not been produced. This is

24 a criminal trial.

25 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. That is

1 precisely the dilemma that troubled me as well. That is why I wished to

2 state this here to the Court. I thank you. In this way, I wish to

3 conclude what I had to say about the problem of identification in this

4 Court.

5 The next problem I wish to draw your attention to is the question

6 of expertise, the expertise that was carried out in this case, medical

7 expertise. This expertise, conditionally speaking, consists of two

8 parts. One is the part where witnesses of the Defence confirmed that on a

9 particular day Zoran Vukovic was hurt, and the other witness confirmed

10 that he took him to the doctor. And we had some kind of a book -- I don't

11 know its exact name right now -- where the injury was recorded.

12 The Prosecutor did not bring into question the witness statements,

13 did not bring into question the credibility of this book. As far as I

14 understood, the objection lies in the following: In this book where the

15 injury was recorded, no mention was made of certain details that would

16 assist us in clarifying the situation that came up, such as the type of

17 injury, the medical diagnosis, the treatment provided, the recuperation

18 period. However, as far as I know, the witness who made recordings in

19 this book said that three things were recorded in that book: injured,

20 wounded, dead; nothing else. Everything else was dealt with in clinics,

21 hospitals, wherever people were supposed to be taken. This is the only

22 kind of record that was kept in that book.

23 After that, thanks to approval given by the Trial Chamber, we went

24 in for expertise. As we had assumed even then, doctors never have enough

25 of examinations. We had two doctors that examined Zoran Vukovic, and they

1 suggested that a new examination take place, and this new doctor conducted

2 his examination and proposed yet another examination. Fortunately, we

3 stopped on time. The Defence believes that what was done in a

4 satisfactory way clarified the mentioned issue.

5 As things usually happen, we have two opposing views of experts.

6 To put it briefly, Mr. De Grave said that the cyst that was detected

7 definitely in Mr. Zoran Vukovic can be caused by injury, but very, very

8 rarely. The other thing relates to his conclusion that if during such an

9 injury a person cannot engage in activities related to reproduction of

10 species, his conclusion was that Mr. Zoran Vukovic saw it happen to

11 somebody else and that then Mr. Zoran Vukovic tried to say that it

12 actually happened to him, and in this way justify what he is -- what he

13 has allegedly done. Finally, Mr. De Grave says that Mr. Vukovic's

14 statement is fundamentally opposed to this and false, as a matter of

15 fact.

16 As for this first particular matter, this epididymal cyst and all

17 the rest, I am not an expert and I cannot engage in polemics regarded to

18 that. I can only invoke medical literature that we provided during the

19 testimony of professor Dr. Dunjic, an expert witness.

20 As for the second question, the question of impediments, what

21 Mr. De Grave said, that this kind of impediment can last only three or

22 four days, this is contrary to life itself. Let me give a very ordinary

23 example. All men who had the misfortune of, after adolescence, succumbing

24 to mumps, an ordinary childhood illness, know how much time is needed for

25 any kind of recovery. It takes far longer than three or four days, which

1 is what Dr. De Grave said to us.

2 During the cross-examination by the Defence, Mr. De Grave, two or

3 three times, told the Defence that they should put the right kind of

4 questions to you and that he did not want to engage in imagination here

5 before the Trial Chamber. He was a doctor and he wanted to abide by the

6 rules of the medical profession. I don't know how else I can characterise

7 Mr. De Grave's findings that Mr. Zoran Vukovic saw someone getting injured

8 in that way and that then he came to the conclusion that he could use this

9 in his defence.

10 There is an outstanding issue that this epididymal cyst, which has

11 been established undoubtedly, also came into being just through

12 observation.

13 Finally, there is Dr. De Grave's wish to establish whether

14 somebody's statement is false or true, but I don't want to waste your time

15 or my words in this connection.

16 As concerns this part of the trial, that is to say, this medical

17 expertise, I shall conclude with the responses that were given by

18 Dr. Dunjic in response to the questions put to him by the Prosecutor when

19 the Prosecutor put the question as to "What kind of facts do we have to

20 corroborate, what you have been claiming, Professor?"

21 The professor answered the following:

22 "We have the fact that two doctors carried out an examination.

23 We also have the fact that on that occasion what was detected was a

24 painful part in the testicles. We also have the fact that these two

25 doctors requested a subsequent examination and the fact that the

1 subsequent examination was carried out."

2 It is also a fact that during this examination the existence of

3 this epididymal cyst was established. The anamneses and the event, as

4 presented by Mr. Zoran Vukovic, actually correspond to what medical

5 literature says about this particular matter.

6 Also, the expert witness, Dr. Dunjic, did not say this took place

7 on such-and-such a date when Zoran Vukovic said it happened. He said: On

8 the basis of all the documents that we have available and on the basis of

9 everything we know, in all probability it happened at such-and-such a time

10 and in such-and-such a way, and of course leaving it to the Trial Chamber,

11 because the Trial Chamber is the only one who is competent to do so, to

12 decide what the value of this is.

13 JUDGE MUMBA: [Previous translation continues] ... for the

14 interpreters, please.

15 MR. JOVANOVIC: [Interpretation] I shall do my best to slow down.

16 So our doctor did not draw any conclusions. He just facilitated

17 the work of the Trial Chamber in a way. It was for the Trial Chamber to

18 decide. In this way, I wish to conclude with this particular element that

19 I wish to speak about.

20 The next thing is the following: If I were to share with you some

21 of my thoughts and recollections and non-recollections and an indictment

22 that is a bit strange, if the Defence has time and again said anything in

23 this -- during these proceedings, it was putting the following question:

24 When was your memory better, now or several years ago when you made your

25 statement? Of course, proceeding from the fact that memory wanes as the

1 years go by. However, today we know -- that is what the Prosecutor tells

2 us -- that in this particular case, trauma is the factor that enhances

3 perception, whereas the differences in statements are only the fruit of

4 some external influences, such as the wish to say the truth, the making of

5 a solemn declaration, or some other external influence.

6 I'm not sure that such behaviour of witnesses is appropriate.

7 They told us something in the previous proceedings, they told us something

8 during this trial. Perhaps there is something that we are going to find

9 out during the appeal, and perhaps yet there is something that we will

10 never find out. In order to be able to do this job, in principle, we

11 should know what really happened. However, there is no such thing here.

12 Given this kind of memory of the witnesses that is not impeded by

13 anything, the Defence puts the following question: How come we have come

14 to such counts in the indictment that are not corroborated by witnesses in

15 any way? I see only two explanations in this regard. One is either that

16 the Prosecutor had certain knowledge that it did not discover to the

17 Defence; and the other is that there were expectations or intimations that

18 the witnesses would say this in Court. However, none of that actually

19 happened.

20 The witnesses do not corroborate the very serious crimes that they

21 were involved in, so there is either something wrong with the indictment

22 or with the witnesses. The Prosecutor has convinced us that everything is

23 all right as far as the witnesses are concerned.

24 Your Honour, my oral closing arguments also pertain to the

25 credibility of witnesses, but I have just completed a section. I see that

1 we have another minute left. Perhaps it would be advisable to leave this

2 new section for the time after the break.

3 JUDGE MUMBA: Yes. Thank you, Mr. Jovanovic. We shall rise and

4 continue this afternoon at 1430 hours.

5 --- Luncheon recess taken at 1.00 p.m.

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1 --- On resuming at 2.31 p.m.

2 JUDGE MUMBA: Yes, Mr. Jovanovic. You may continue.

3 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

4 Just before the break, I informed the Trial Chamber of my

5 intention to say something in my concluding arguments about the

6 credibility of the witnesses. Quite a lot has been said so far about the

7 credibility of the witnesses before this Tribunal. Of course, we

8 challenged it, and the Prosecution also challenged the credibility of our

9 witnesses.

10 What we have to say now about the credibility of witnesses is the

11 following: In our view, the credibility of the witnesses, the

12 truthfulness of their testimonies, and of everything we have heard before

13 this Chamber was best described by the Prosecution. As the Defence

14 understands it, the Prosecution did not trust the witnesses who put

15 forward what they knew about criminal offences. They did not believe them

16 because they mentioned many criminal offences which are not even mentioned

17 in the indictment, and we are talking about two rapes and one murder which

18 are very serious crimes.

19 We have to be completely fair, and in the concluding argument of

20 the Prosecution, as far as I was able to discern, the Prosecution

21 explained its actions by economy, by the wish not to protract these

22 proceedings. The Defence feels that this is a very reasonable explanation

23 because there is no reason to waste the time and the money of this

24 Tribunal in order to try to prove something that has no chance of

25 succeeding. Therefore, as for the credibility of the witnesses, it is the

1 Prosecution that has best shown how credible they are.

2 In this situation -- at this moment, the situation has become very

3 interesting. In the indictment we have, so to speak, "old" criminal

4 offences, meaning those that were in the indictment already which the

5 witnesses failed to prove; and "new" offences which the Prosecution finds

6 no grounds to prosecute.

7 I wish to draw your attention to just one detail. Within the

8 scope of the issues I have just raised, it is symptomatic that the only

9 two witnesses who at this moment the Prosecution finds convincing enough

10 and whose testimonies show beyond any reasonable doubt the guilt of

11 Mr. Vukovic, are Witnesses 50 and 87. If we try to classify witnesses, we

12 will find that Witness 50 belongs to the group of witnesses speaking about

13 new offences, and the Prosecution does not believe them; while Witness 87

14 falls into the category of witnesses who do not confirm the allegations

15 already made in the indictment.

16 I now wish to pass on to another point, and I wish to draw your

17 attention to the indictment. I feel that the best way to proceed when

18 discussing the indictment as it relates to Mr. Zoran Vukovic is to start

19 from where we were at the beginning and where we are now. The indictment,

20 which as far as I can see was submitted on the 3rd of March of this year

21 and about which Mr. Zoran Vukovic never pleaded, Zoran Vukovic is charged

22 with having been the Deputy Commander of the military police and a leader

23 of paramilitary organisations in Foca.

24 JUDGE HUNT: Mr. Jovanovic, when you say he has not pleaded, that

25 particular indictment was merely an extraction from the larger indictment

1 to which your client had pleaded, so that he could, at his request, be

2 tried together with the other two accused.

3 MR. JOVANOVIC: [Interpretation] Absolutely, Your Honour. I was

4 evidently wrong. I felt that the accused should enter a plea with regard

5 to every single indictment, and since this is an amended indictment, most

6 probably I have made a mistake. I certainly have.

7 JUDGE HUNT: It's not something you raised until your written

8 submissions at the end of the trial, that it was certainly only an

9 extraction from the larger indictment which had a number of other accused

10 who have not been brought into custody yet. And this whole procedure was

11 adopted in order to enable your client to join in this trial. So it does

12 not sound well to come from you that there is some complaint to be made

13 about the procedure which was adopted.

14 MR. JOVANOVIC: [Interpretation] Your Honour, I failed to express

15 myself correctly. We are not raising an objection to the procedure

16 adopted in relation to the accused Zoran Vukovic and his entering pleas on

17 the indictment. I am not objecting.

18 JUDGE HUNT: I'm grateful to hear it. Thank you.

19 MR. JOVANOVIC: [Interpretation] Let me go back to my statement.

20 Zoran Vukovic was a Deputy Commander of the military police and a

21 leader of paramilitary forces in Foca. This is a general allegation made

22 in the indictment. There are also specific allegations that he is charged

23 with, and I will not tire the Trial Chamber by going through the

24 indictment count by count. I will simply say that in this special part of

25 the indictment, five witnesses alleged certain crimes against Mr. Zoran

1 Vukovic, and these are listed in the indictment. That was the state of

2 affairs at the beginning.

3 Now, however, at the end of these proceedings, when the indictment

4 is here before us, when we have gone through it, we see the following: As

5 to the fact that Mr. Zoran Vukovic was a Deputy Commander of the

6 paramilitary police and a paramilitary leader in Foca, it is no longer

7 mentioned. Mr. Vukovic and the other accused are defined as soldiers of

8 the army of Republika Srpska, and from this it can be concluded that the

9 Prosecution no longer insists on that part, although they have not made

10 any formal submissions to that effect.

11 I wish to mention also that the only attempt, as far as I know,

12 although unfortunately I was not present in the Court, was to show a video

13 recording and a photograph taken from the video. An attempt was made to

14 identify Zoran Vukovic as one of the people appearing in that video.

15 Apart from that, in our concluding argument we -- I will not

16 linger on Witness 48, but Witnesses 95 and 75 did not appear, although the

17 Prosecution did not formally withdraw these witnesses. However, if we

18 listen to the closing arguments of the Prosecution, the Prosecution is

19 asking for criminal sanctions against Zoran Vukovic for crimes committed

20 against Witnesses 50 and 87. Witness 75 is mentioned in passing as an

21 aggravating circumstance, and in a quite different context, and not the

22 one that we find in the indictment.

23 If the Prosecution is asking for punishment for Mr. Zoran Vukovic

24 for these two witnesses, I can only come to the conclusion that the

25 Prosecution feels that it has proved beyond any reasonable doubt the

1 allegations made in relation -- or, rather, has not proved the allegations

2 made in relation to Witnesses 75 and 95, because they are not mentioned.

3 Furthermore, the Prosecution, in its closing arguments, has

4 confirmed that it has not managed to prove count 6.7 and 7.11 in relation

5 to Mr. Zoran Vukovic. Also, in the part that relates to the criminal

6 offence of torture, Counts 33 to 36 have been omitted, because we do not

7 have a formal and official motion to this effect from the Prosecution, I

8 can only conclude that they have not managed to prove it beyond any

9 reasonable doubt. The Defence, of course, agrees with this and feels that

10 this is a good way of establishing the truth in these proceedings.

11 At the moment, then, we have two witnesses who, through their

12 testimonies, charge the accused, Mr. Zoran Vukovic, and the Prosecution

13 bases its proposal for punishment of at least 30 years on their

14 testimonies. I think it now is the right moment to examine these two

15 testimonies.

16 What I wish to say at the very outset is that the circumstances

17 mentioned in these testimonies run counter to the sequence of events and

18 the ability of the witnesses to understand what was happening to them. In

19 my brief analysis, I will not refer to the kind of special recollection

20 and special powers of perception that were mentioned here. I will refer

21 only to the ordinary kind of memory that we are all used to.

22 In brief, Witness 50 claims that on the occasion in question,

23 Zoran Vukovic, under circumstances that were not quite clear, took her and

24 Witness 87 from the Partizan Sports Hall. He took them to an abandoned

25 flat, where Mr. Vukovic raped Witness 50, and then said the sentence that

1 we have heard so many times here, referring to children. And during this

2 time an unknown Serbian soldier raped Witness 87 in the next room. After

3 that incident, the accused Zoran Vukovic allegedly took them back to the

4 Partizan Sports Hall.

5 The problem is that Witness 87, and the Prosecution also comes to

6 this conclusion, does not support this story in any way. This is simply

7 impossible. According to the indictment, within a week of this event,

8 Mr. Zoran Vukovic raped Witness 87. Therefore, Witness 87 at that moment

9 must have known who the man was who was taking her out of Partizan with

10 Witness 50, and she must have known who the man was raping Witness 50 in

11 the next room, and the man who took her back to the Partizan Sports Hall.

12 Witness 87 never said a single word to confirm this incident.

13 I think that this supports what I'm saying, and that we can also

14 find support for this in footnote 591 in the Prosecution closing brief and

15 in all the transcripts, either presented before this Tribunal from other

16 proceedings or during these proceedings, during the examination-in-chief

17 or the cross-examination of Witness 87.

18 Bearing this in mind, only two things occur to me. The first of

19 these is that Witness 87 is protecting Mr. Zoran Vukovic, and to be quite

20 truthful, I think that this is fantasy. The second possibility that

21 occurs to me and that I find much more credible is that this event never

22 took place.

23 Bearing in mind some other details from the testimony of Witness

24 50, who first stated that she knew Mr. Zoran Vukovic, that she knew his

25 wife, that she even knew that the wife of Mr. Vukovic had a kiosk for the

1 sale of cigarettes and newspapers in the centre of town; and then during

2 the examination-in-chief and the cross-examination, the same witness said

3 that she thought that she may have seen Mr. Zoran Vukovic in Foca before

4 the war; and bearing in mind that there is nothing to confirm, either a

5 witness or a source to confirm the allegations of Witness 50 concerning --

6 or rather, what she said about the activities that the wife of Mr. Zoran

7 Vukovic engaged in, while on the other hand, witnesses who were asked

8 about this said that Mrs. -- I can't remember her name, but the wife of

9 Mr. Vukovic was employed in a company, and some witnesses even told us the

10 name of the company, I think its name was Perucica; bearing all this in

11 mind, the Defence can only come to the conclusion that this witness is

12 lying, that every word she uttered was a lie. There's no other

13 explanation.

14 Let us now turn to the testimony of Witness 87. To be brief,

15 Witness 87 said that on the occasion in question, she was taken from a

16 classroom in the secondary school. She was taken into another classroom

17 with two other witnesses, Witness 95 and Witness 75, and that in this

18 second classroom, all three of them were raped. Witness 87 was allegedly

19 raped by Mr. Zoran Vukovic.

20 Witness 95, when asked again by the Prosecution to identify the

21 persons who entered this classroom with her or, rather, who were taken

22 from one classroom into another, and that is page 2207 of the transcript,

23 did not identify Witness 87 as having been there on that occasion.

24 However, the Defence has to observe that we accept that an error could

25 have been made. So much time has elapsed, and we do not object to the

1 version of events stated by Witness 95 who said that she made an error in

2 identification. Witness 95 did not say anything further about this event

3 that was not strictly connected with her.

4 Witness 75 in her previous statement and also during the

5 examination-in-chief, pages 1399 and 1400 of the record, confirmed that on

6 that occasion, she, Witness 95, and Witness 87 were in the classroom.

7 However, Witness 75 maintained that Witness 87 was raped by an unknown

8 Serbian soldier.

9 If we know and have been told by Witness 75 that -- I apologise, I

10 have to make a small digression. I forgot to mention the dates when this

11 occurred to make it easier to follow. The time we are interested in is

12 the time from the 3rd of July, 1992, to the 14th of July or around the

13 14th of July, 1992, and this approximately is about two weeks. The 3rd of

14 July is the date when the Muslim civilians were in Buk Bijela, and the

15 14th, according to the indictment, or about the 14th, was the date when

16 Zoran Vukovic took Witness 50 out of the Partizan Sports Hall.

17 The event I'm referring to now took place, according to the

18 indictment, on the 6th or 7th of July, 1992. If we now look at the

19 testimony of Witness 75, she simply cannot not know the unknown Serbian

20 soldier. Two days before that, the unknown Serbian soldier passed by in

21 front of her leading her uncle. After that, shooting was heard, and

22 Witness 75 was deeply convinced that on that occasion, her uncle was

23 killed.

24 Also, Witness 75, as she herself stated, had an opportunity of

25 again seeing this unknown Serbian soldier in Mr. Kovac's flat when the

1 unknown Serbian soldier introduced himself to her with his full first and

2 last name, told her that he was the man who had killed her close relative,

3 and then raped her. Therefore, this person cannot in any way be an

4 unknown Serbian soldier for Witness 75.

5 JUDGE MUMBA: Mr. Jovanovic, in the evidence that was given

6 regarding the rape or the alleged rape in Kovac's flat of Witness 75, you

7 say that this man told her that he had killed a relative, a close relative

8 of hers. Did he mention the actual relationship? If I recall, he did say

9 he is the one who killed her brother. Or can you recall which relation?

10 MR. JOVANOVIC: [Interpretation] Your Honour, as far as I remember,

11 I think she said "uncle," "uncle." It was not a brother, as far as I can

12 remember. We can check the transcript, but I am not sure of this now.

13 However, if we read parts of the transcript where this event is described,

14 we can establish beyond doubt, regardless of what the relationship is or

15 the name, that the same person is referred to who was seen in Buk Bijela,

16 for whom the witness claimed that she saw him with the accused Zoran

17 Vukovic.

18 Therefore, a question arises: How is it possible that the

19 witnesses forgot Zoran Vukovic -- his appearance, his name, and everything

20 else -- and we fully accept the standpoints of the Prosecution when they

21 say that in that period the witnesses may not have known the names of

22 those persons. They did, however, know what they looked like. We have a

23 case here where a witness knew the name of a person because the person

24 introduced himself.

25 How is it possible that they forgot him within two weeks and then

1 remembered it later, eight years later? I will ask the same question when

2 I analyse the testimony of Witness 50. Is Witness 75 protecting Zoran

3 Vukovic or is it something else that's happening? This event, as it is

4 described, may have happened, but Zoran Vukovic certainly did not

5 participate in it.

6 JUDGE MUMBA: We have no English translation. We are having

7 French on channel 4.

8 THE INTERPRETER: Can you hear me now?

9 JUDGE MUMBA: Yes. Thank you.

10 Please proceed.

11 MR. JOVANOVIC: [Interpretation] I have almost reached the end of

12 my closing argument. Only one question remains to be dealt with, and that

13 is sentencing. To this issue, the issue of aggravating or mitigating

14 circumstances are inevitably linked, and these have to be proven. I will

15 not repeat what my colleagues have already said about the positions of the

16 Defence in this respect. What I wish to say are two things:

17 First, as regards aggravating circumstances, it is true that we

18 come from different legal systems, but I can simply not imagine that

19 somebody can have the commission of a crime taken as an aggravating

20 circumstance. He may be guilty of a crime, but that may not be an

21 aggravating circumstance at the same time.

22 Here, in the closing argument of the Prosecution, we heard that

23 the Prosecutor finds aggravating circumstances in the alleged rape of

24 Witness 50 in Buk Bijela and Witness 75 in the apartment of Mr. Kovac.

25 The Prosecutor did not prosecute for this, but they want us to take this

1 as an aggravating circumstance. In the understanding of the Defence,

2 these two things do not go together.

3 As for the sentence itself, it is very difficult for me to discuss

4 it, because I believe that a sentence presumes that it has been

5 established, that the guilt of the accused has been established beyond a

6 reasonable doubt. The Defence believes that what has been proven beyond a

7 reasonable doubt is the innocence of the accused Zoran Vukovic. We do not

8 have a single piece of evidence proving that the accused Zoran Vukovic

9 indeed committed the crimes with which he is charged.

10 Your Honours, in this way, the Defence of the accused Zoran

11 Vukovic concludes this argument. Thank you.

12 JUDGE MUMBA: Thank you, Counsel.

13 [Trial Chamber confers]

14 JUDGE MUMBA: Yes, Mr. Jovanovic.

15 MR. JOVANOVIC: [Interpretation] Your Honours, my colleagues remind

16 me of one other thing. It is a problem again of different legal systems.

17 I don't know if I should say this, but since I had forgotten to do it

18 before -- bearing in mind that, as I said, we believe the innocence of

19 Zoran Vukovic has been proven beyond a reasonable doubt, the Defence

20 proposes that he be acquitted and released from detention.

21 Now I have really finished. Thank you.

22 JUDGE MUMBA: Thank you.

23 Now that both parties have completed presenting their case, the

24 Trial Chamber declares the hearing of this case closed. The Trial Chamber

25 will deliberate on the evidence, the law, and the submissions of both

1 parties, from both parties, and will deliver judgement on a date to be

2 notified for both parties and all those concerned in due course. The

3 Trial Chamber will adjourn.

4 --- Whereupon the hearing adjourned at 3.05 p.m.

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