1 - For a list of the terms and abbreviations used in this Judgement, see Annex B.
2 - Trial Judgement, para. 621.
3 - Although Santic no longer disputes his guilt he, nonetheless, makes various challenges to the Trial Chamber’s findings about the extent of his participation in the April 1993 Ahmici attack.
4 - Order of the President on the Request for the Release of Confidential Witness “AT” Material from the Case The Prosecutor v Kordic and Cerkez in the Case The Prosecutor v Kupreskic et al., filed in French on 4 October 2001. The English translation was filed on 9 October 2001.
5 - Trial Judgement, para. 370.
6 - Trial Judgement, para. 372.
7 - Trial Judgement, para. 422.
8 - Trial Judgement, paras 426, 776 and 779.
9 - Trial Judgement, para. 430.
10 - The Trial Judgement used the spelling “Sutre” for the name of the store and some of the documents filed during the trial proceedings used the spelling “Sutre”.
11 - Trial Judgement, para. 371.
12 - Trial Judgement, paras 372 and 421.
13 - Trial Judgement, paras 421 and 779.
14 - Trial Judgement, paras 426, 776 and 779.
15 - Trial Judgement, para. 430.
16 - Trial Judgement, para. 432.
17 - Trial Judgement, para. 463.
18 - Trial Judgement, para. 466.
19 - Trial Judgement, para. 470.
20 - Trial Judgement, para. 502.
21 - Trial Judgement, paras 503 and 859.
22 - Trial Judgement, para. 504.
23 - Trial Judgement, para. 859.
24 - Trial Judgement, para. 475.
25 - Trial Judgement, paras 132, 500 and 501.
26 - Trial Judgement, paras 503 and 862.
27 - Trial Judgement, para. 862.
28 - Tadic Rule 115 Decision, para. 41 (referring to Prosecutor v Erdemovic, Case No.: IT-96-22-A, Judgement, 7 October 1997, para. 15); Furundzija Appeal Judgement, para. 40; Tadic Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para. 29.
29 - Tadic Appeal Judgement, para. 247.
30 - Zoran Kupreskic Appeal Brief, para. 10. Zoran Kupreskic also takes issue with the allegation that he helped prepare the onslaught on Ahmici by preparing his home and the homes of his relatives as staging areas and firing locations for the attack. Due to the fact that this allegation did play a part in his conviction it is dealt with in substance infra paras. 233-241.
31 - Zoran Kupreskic Appeal Brief, para. 143. See also para. 146 (restating the argument that the Trial Chamber failed to establish whether he was considered to be a perpetrator or a co-perpetrator).
32 - Trial Judgement, para. 515.
33 - Mirjan Kupreskic Appeal Brief, 140-147.
34 - Mirjan Kupreskic Appeal Brief, 140-147; Mirjan Kupreskic Closing Brief, 86-91.
35 - Furundzija Appeal Judgement, para. 35 (discussing the standard applied to determine legal errors).
36 - See, e.g., Josipovic Appeal Brief, 8 and 20; Zoran Kupreskic Appeal Brief, para. 42 (questioning the probative value of a single identification witness); Zoran Kupreskic Appeal Brief, para. 83 (questioning acceptability of evidence in light of factors such as the passage of time between the events and the testimony, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place); Zoran Kupreskic Appeal Brief, para. 12 (arguing that the Trial Chamber is obliged to refer to all pieces of evidence relied upon or to refer to all pieces of possibly contradictory evidence); Zoran Kupreskic Appeal Brief, paras 23 and 50 (questioning reasoning as to why the evidence of one witness is preferred but not the evidence of another).
37 - Furundzija Appeal Judgement, para. 37 (citing Serushago Sentencing Appeal Judgement, para. 22).
38 - Furundzija Appeal Judgement, para. 37 (quoting Black’s Law Dictionary (7th ed., 1999)).
39 - Furundzija Appeal Judgement, para. 37.
40 - Tadic Appeal Judgement, para. 64; Aleksovski Appeal Judgement, para. 63; Celebici Appeal Judgement, paras 434 and 491; Tadic Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para. 30.
41 - Rules 89(C) and (D).
42 - Celebici Appeal Judgement, paras 485 and 496-498.
43 - Celebici Appeal Judgement, paras 485 and 496-498.
44 - Furundzija Appeal Judgement, para. 37.
45 - Furundzija Appeal Judgement, para. 69. This decision recalls principles drawn from the case-law of the European Court of Human Rights, which indicate that “the extent to which this duty…applies may vary according to the nature of the decision” and “can only be determined in the light of the circumstances of the case”. Ruiz Torija v Spain, 303 Eur. Ct. H. R. (series A) at para. 29 (1994). However, a “tribunal” is not obliged to give a detailed argument in respect of every argument. See Van de Hurk v The Netherlands, 288 Eur. Ct. H. R. (series A) at para. 61 (1994).
46 - Tadic Appeal Judgement, para. 65; Aleksovski Appeal Judgement, para. 62; Celebici Appeal Judgement, para. 492 and 506; Kayishema Appeal Judgement, para. 154.
47 - Rule 90(B).
48 - R. v Turnbull, [1976] 63 Cr. App. R. 132.
49 - Regarding the position in Canada, see R. v Carey (1996), 113 C.C.C. (3d) 74 (requiring “a special warning on the frailties of eyewitness identification” be given to a jury by a trial court “whenever the defence alleges such identification to be mistaken…”)(citations omitted); see also R. v Mezzo, (1983( 10 W.C.B. 247. Regarding the position in Australia, see Domican v R., [1992] 106 A.L.R. 203 (1991).
50 - Jafaar bin Ali v PP [1998] 4 M.L.J. 406; see also Arumugam s/o Muthusamy v PP [1998] 3 M.L.J. 73.
51 - U.S. v Wade, 388 U.S. 218, 228-229 (1967)(citation omitted).
52 - R. v Turnbull, [1976] 63 Cr. App. R. 132, 141.
53 - For the position in Austria, see § 258 (2) Strafprozessordnung; for the position in Germany, see § 261 Strafprozessordnung; for the position in Italy, see Art. 192 Codice di Procedura Penale; for the position in Portugal, see Art. 127 Codigo de Processo Penal; for the position in Sweden, see Chapter 35 § 1 Rättegångsbalken; for the position in Spain, see Art. 741 Ley de Enjuiciamiento Criminal.
54 - See, e g., Entscheidungen des Bundesgerichtshofs in Strafsachen Vol. 16, p. 204 and Vol. 28, p. 310.
55 - See, e.g., Bundesgerichtshof, reprinted in Strafverteidiger 409 (1991); see also Bundesgerichtshof, reprinted in Strafverteidiger 555 (1992).
56 - See, e.g., Oberster Gerichtshof, 10 December 1992, 15 0s 150 / 92; 4 June 1996, 11 0s 59 / 96 and 20 March 2001, 11 0s 141 / 00.
57 - See e.g., Nytt Judiriskt Arkiv 725 (1980), 446 (1992) and 176 (1996).
58 - R. v Harper, [1982] 1 S.C.R. 2.
59 - R. v Turnbull, [1976] 63 Cr. App. R. 132.
60 - R. v Turnbull, [1976] 63 Cr. App. R. 132.
61 - Jaafar bin Ali v PP, [1998] 4 M.L.J. 406.
62 - People (DPP) v Cox, 28th April, 1995, (CCA) 4/93.
63 - Domican v R., [1992] 186 A.L.R. 203.
64 - People (DPP) v McNamara, 22nd March, 1999, (CCA) 111/95.
65 - R.v Burke, [1996] 1 S.C.R. 474. In Burke, at para. 53, the appellate court found it unacceptable that the trial judge “made no comment on the frailty of the identification evidence” other than the general statement that she found the witness’ evidence credible and therefore accepted it.
66 - Tadic Appeal Judgement, para. 64; Aleksovski Appeal Judgement, para. 63; and Celebici Appeal Judgement, para. 491.
67 - The video recordings depicted visibility conditions in the villages of Ahmici and Santici, and an oath-taking ceremony in Vitez.
68 - Appeal Transcript, 612.
69 - For a discussion of these matters, see Procedural Background, Annex A.
70 - Celebici Appeal Judgement, para. 435; see also Tadic Appeal Judgement, para. 64; Aleksovski Appeal Judgement, para. 63; Furundzija Appeal Judgement, para. 37.
71 - See Tadic Rule 115 Decision, paras 37-38 (stating that, regarding Art. 25(1)(b), providing for appeals on the ground of “an error of fact which has occasioned a miscarriage of justice”, “it is difficult to see how the Trial Chamber may be said to have committed an error of fact where the basis of the error lies in additional evidence which, through no fault of the Trial Chamber, was not presented to it…[i]t is only by construing the reference to ‘an error of fact’ as meaning objectively an incorrectness of fact disclosed by relevant material…that additional material may be admitted.”)
72 - Examples are the systems of “appel” in France (Art. 546 et seq., Code de Procedure Penale) and Belgium (Art. 199 et seq., Code d’Instruction Criminelle); “Berufung” in Germany (§§ 312-332, Strafprozessordnung (1999)); “appello” in Italy (Arts. 593-605, Codice di Procedura Penale (2001)); “hogerberoep” in the Netherlands (Arts. 404; 425 et seq., Strafvordering: Tekst & Commentaar (1997)); “anke” and “fuldstoendig anke” in Denmark (§ 943-960, Administration of Justice Act); “recurso de apelacion” in Spain (Arts. 795-796, 846 (bis), Ley de Enjuiciamiento Criminal of 1882 (1996)); “Zalba na presudu” in Bosnia and Hercegovina (Arts. 357; 360; 381, Federation Criminal Procedure Code (1998)).
73 - Examples are “pourvoi en cassation” in France (Arts. 592-596; 599, Code de Procedure Penale (2001)) and Belgium (Art. 416 et seq., Code d’Instruction Criminelle); “Revision” in Germany (§§333-358, Strafprozessordnung (1999)); “ricorso per cassazione” in Italy (Arts. 606-628, Codice di Procedura Penale (2001)); “cassatieberoep” in the Netherlands (Art. 427 and 441, Strafvordering: Tekst & Commentaar; Art. 99, Wet op de Rechtelijke Organisatie (1997)); “Revising Appeal” in Denmark (§ 943-960, Administration of Justice Act); “recurso de casacion” or “recurso de queja” in Spain (Arts. 847; 849(1) and (2), 850-851, 901 (bis)(a), Ley de Enjuiciamiento Criminal of 1882 (1996)).
74 - Section 23 of the Criminal Appeal Act 1968 (as amended and repealed in part by the Criminal Appeal Act 1995).
75 - The section provides that “the court of appeal may, where it considers it in the interests of justice, receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness”.
76 - R. v McMartin [1965] 1 C.C.C. 142.
77 - Fed. R. Crim. P. 33 provides: “On a defendant’s motion, the court may grant a new trial to that defendant if the interests of justice so require. If trial was by the court without a jury, the court may -- on defendant’s motion for new trial -- vacate the judgment, take additional testimony, and direct the entry of a new judgment. A motion for new trial based upon newly discovered evidence may be made only within three years after the verdict or finding of guilty. But if an appeal is pending, the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds may be made only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period”.
78 - United States v Oates, 445 F. Supp. 351 aff’’d without op, 591 F.2d 1332 (2nd Cir. 1978). This caution is reflected in the specific factors enunciated and applied by the federal courts to determine the validity of a motion for a new trial based upon discovery of new evidence. The courts have consistently stated that such evidence: (1) must be discovered after the trial, such as to assure the court of the diligence of the movant during the trial; (2) the evidence must not be “merely criminal or impeaching” but material to the issues involved in the earlier trial; (3) the evidence must be such that it would “probably produce” acquittal upon retrial. See United States v Ortiz, 23 F.3d 21, 27 (1st Cir. 1994); see also generally Johnson v United States, 32 F.2d 127 (8th Cir. 1929); United States v Marachowsky, 213 F.2d 235 (7th Cir. 1954), cert. den., 348 U.S. 826 (1954); United States v Joselyn et al., 206 F.3d 144 (1st Cir. 2000).
79 - Section 574 of the Victorian Crimes Act of 1958, for example, permits the Full Court of the Supreme Court of Victoria to allow the admission of new evidence upon an appeal if it thinks it necessary or expedient in the interests of justice.
80 - Art. 304(2) (b) and Art. 309(3) of the Code of Criminal Procedure grant a local division of the Supreme Court sitting as a court of appeal the authority to hear evidence. Section 22 of the Supreme Court Act 59 of 1959 grants provincial and local courts the power to preside over and grant appeals. The court is also empowered under section 304(2)(c)(v) and section 22 of the Supreme Court Act to remit or remand the case to the magistrate’s court, the court of first instance, with directions regarding the evaluation of the new evidence.
81 - In S v De Jager, 1965 (2) SA 612 (A), it was held that “the requirements which should be complied with before the Appellate Division or any other court of appeal … would be prepared to hear new evidence are set out as 613 C-D as follows: (a) there should be some reasonably sufficient explanation, based on allegations which may be true, why the evidence which it is sought to lead was not led at the trial; (b) there should be prima facie likelihood of the truth of the evidence; (c) the evidence should be materially relevant to the outcome of the trial”. This standard, and underlying considerations, are relevant to the work of all appellate courts, regardless of whether they are local, provincial or national. See R. v De la Bat, (1) 1959 (3) SA 67 (c) 69G-70D; S v Steyn, 1981 (4) SA 385 (c) 386D-F).
82 - Section 317 of Criminal Procedure Code of Malaysia (F.M.S. Cap. 6) (as in force on 15th May 1991).
83 - See Rome Statute of the International Criminal Court, 17 Aug. 1998, PC NICC/1999/INF/3, Art. 83.
84 - Rome Statute of the International Criminal Court, 17 Aug. 1998, PC NICC/1999/INF/3, Art. 84.
85 - Tadic Rule 115 Decision, para. 30 (emphasis added).
86 - Tadic Rule 115 Decision, para. 32.
87 - Tadic Rule 115 Decision, para. 32.
88 - Tadic Rule 115 Decision, para. 36.
89 - Tadic Rule 115 Decision, para. 44.
90 - Tadic Rule 115 Decision, para. 47.
91 - Tadic Rule 115 Decision, para. 62.
92 - Tadic Rule 115 Decision, para. 48 (emphasis added) and para. 50.
93 - Tadic Rule 115 Decision, para. 71.
94 - Tadic Rule 115 Decision, para. 74.
95 - Prosecutor v Jelisic, Case No.: IT-95-10-A, Decision on Request to Admit Additional Evidence, 15 Nov 2000, 3 (emphasis added).
96 - See Prosecutor v Furundzija, Case No.: IT-95-17/1-A, Order on Defendant’s Motion to Supplement Record on Appeal, 2 Sept 1999, 2; Prosecutor v Delalic et al., Order on Esad Landzo’s Motion (1) to Vary in Part Order on Motion to Preserve and Provide Evidence, (2) to be Permitted to Prepare and Present Further Evidence, and (3) that the Appeals Chamber take Judicial Notice of Certain Facts, and on his Second Motion for Expedited Consideration of the Above Motion, 4 October 1999, 4. The Court held that Rule 115 was inapplicable because the new evidence was concerned with facts not at issue at trial and “not [concerned] with the guilt or innocence of the Appellant”.
97 - Prosecutor v Delalic et al., Case No.: IT-96-21-A, Order in Relation to Witnesses on Appeal, 19 May 2000, 3 (emphasis added); see also Prosecutor v Delalic et al., Case No.: IT-96-21-A, Order on Motion of Esad Landzo to Admit as Additional Evidence the Opinion of Francisco Villalobos Brenes, 14 Feb 2000, 3; Prosecutor v Delalic et al., Case No.: IT-96-21-A, Order on Motion of Appellant, Esad Landzo, to Admit Evidence on Appeal, and for Taking of Judicial Notice, 31 May 2000, 2. See also Prosecutor v Akayesu, Case No.: ICTR-96-4-A, Decision (Concerning Motions 2, 3, 4, 5, 6 and 8 Appellant’s Brief Relative to the Following Motions Referred to by the Order Dated 30 November 1999), 24 May 2000, 4.
98 - Prosecutor v Blaskic, Case No.: IT-95-14-T, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 Sept 2000, para. 32. Rule 107 enables “the Appeals Chamber to import rules for trial proceedings to fill a lacuna in appellate proceedings, subject to appropriate modifications”.
99 - See Rule 115 Decision of 26 February 2001, para. 13; Rule 115 Decision of 11 April 2001, para. 13.
100 - See, e.g., Prosecutor v Furundzija, Case No.: IT-95-17/1-A, Order on Defendant’s Motion to Supplement Record on Appeal, 2 Sept 1999, 2; Prosecutor v Delalic et al., Case No.: IT-96-21-A, Order on Esad Landzo’s Motion (1) to Vary in Part Order on Motion to Preserve and Provide Evidence, (2) to be Permitted to Prepare and Present Further Evidence, and (3) that the Appeals Chamber take Judicial Notice of Certain Facts, and on his Second Motion for Expedited Consideration of the Above Motion, 4 Oct 1999, 4; Prosecutor v Delalic et al., Case No.: IT-96-21-A, Order in Relation to Witnesses on Appeal, 19 May 2000, 3; Prosecutor v Delalic et al., Case No.: IT-96-21-A, Order on Motion of Esad Landzo to Admit as Additional Evidence the Opinion of Francisco Villalobos Brenes, 14 Feb 2000, p. 2; Prosecutor v Delalic et al., Case No.: IT-96-21-A, Order on Motion of Appellant, Esad Landzo, to Admit Evidence on Appeal, and for Taking of Judicial Notice, 31 May 2000, 2. Also applied by the Appeals Chamber of the ICTR in Prosecutor v Akayesu, Case No.: ICTR-96-4-A, Decision (Concerning Motions 2, 3, 4, 5, 6 and 8 Appellant’s Brief Relative to the Following Motions Referred to by the Order Dated 30 November 1999, 24 May 2000, 4.
101 - Tadic Rule 115 Decision, para 72.
102 - Prosecutor v Semanza, Case No.: ICTR-97-20-A, Decision, 31 May 2000, para. 41.
103 - Prosecutor v Semanza, Case No.: ICTR-97-20-A, Decision, 31 May 2000, para. 45.
104 - Prosecutor v Jelisic, Case No.: IT-95-10-A, Decision on Request to Admit Additional Evidence, 15 Nov 2000, 3. A similar principle, that the Appeals Chamber would not be constrained by the express meaning of the Rules where the admission of evidence was necessary in order to avoid a miscarriage of justice, was established by the Appeals Chamber of the ICTR during “request for review” proceedings in Prosecutor v Barayagwiza, under Art. 25 and Rule 120 of the ICTR Statute and Rules (corresponding to Art. 26 and Rule 119 of the ICTY Statute and Rules). There, the Appeals Chamber took account of new facts presented to it by the Prosecution, notwithstanding its finding that the Prosecution may have known of them, or could have discovered them, during the earlier proceedings. The Appeals Chamber held that the words of Rule 120 were “directory” in nature and, “in the face of a possible miscarriage of justice”, account was to be taken of the new facts. See Prosecutor v Barayagwiza, Case No.: ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 65.
105 - Prosecution’s Consolidated Response to the Motions by Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic and Drago Josipovic to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 20 Nov 2000, paras 2.30 and 3.6.
106 - The Prosecution stated that “[t]o meet the requirements of Rule 115 there is inevitably two categories of evidence presented to the Appeals Chamber; first, evidence offering the explanation as to why the additional evidence was not available at trial; and, second, the additional evidence itself, tendered for admission as relevant to the guilt or innocence of an accused”. Prosecution’s Consolidated Response to the Motions by Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic and Drago Josipovic to Admit Additional Evidence Pursuant to Rule 115, 20 Nov 2000, para. 1.30.
107 - Evidence consisted of the defence closing brief for the Accused Vlatko Kupreskic, a letter from Dr. Krajina and Mr. Par dated 28 July 2000 to present counsel, the draft appellant’s brief, a statement of Vlatko Kupreskic, the draft rule 115 motion prepared by former counsel, statements of Ljubica Kupreskic, statement of AVK 5, statement of AVK 6, and a list of witnesses for the defence at trial.
108 - Rule 115 Decision of 11 April 2001, paras 24 and 25.
109 - Rule 115 Decision of 26 February 2001, para. 28.
110 - Rule 115 Decision of 26 February 2001, para. 58; Rule 115 Decision of 11 April 2001, paras 17 and 30.
111 - Witness ADA, Miro Lazarevic and Witness ADB.
112 - Rule 115 Decision of 26 February 2001, para. 28.
113 - Rule 115 Decision of 26 February 2001, para. 58.
114 - Rule 115 Decision of 26 February 2001, para. 106.
115 - Rule 115 Decision of 11 April 2001, para. 6.
116 - Rule 115 Decision of 26 February 2001, para. 41; see also Rule 115 Decision of 26 February 2001, para. 48.
117 - Prosecution’s Consolidated Response to the Motions by Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic and Drago Josipovic to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 20 Nov 2000, para. 5.4 (stating that “[i]n the event that, contrary to the Prosecution’s submission, any of the Motions are granted and the additional evidence admitted by the Appeals Chamber, the Prosecution expressly reserves its right to submit evidence in rebuttal and, if necessary, to request the right to cross-examine any witnesses from whom statements have been proffered”).
118 - The Evidentiary Hearing was held on 17, 18 and 25 May 2001.
119 - The statement of Witness CA was admitted pursuant to the Rule 115 Decision of 26 February 2001. The statement of Witness DD statement was admitted pursuant to the Decision on Prosecution Motion to Admit Additional Evidence in Rebuttal to Additional Evidence Admitted under Rule 115, 6 July 2001.
120 - Appeal Transcript, 557-573; Josipovic Supplemental Document, paras 2-2.9; Josipovic Reply, paras 2.1-2.36.
121 - Appeal Transcript, 560; Josipovic Supplemental Document, para. 2.5; see also Vlatko Kupreskic Supplemental Document, para. 8.
122 - Josipovic Supplemental Document, para. 2.9(iii).
123 - Josipovic Supplemental Document, para. 2.7.
124 - Prosecution Response, para. 4.87.
125 - Prosecution Response, para. 4.93; see also Prosecution Response, para. 4.90.
126 - Josipovic Reply, paras 2.1-2.36.
127 - Regarding England and Wales, see R. v Stafford and Luvaglio, 58 Cr. App. Rep., 256-257 (1973); R. v McNamee, 1998 C.A. 17 December 1998; R. v McLoughlin, C.A. 30 November 1999; R. v Clegg, N. Ir. L. R. 27 February 1998. Regarding Canada see R. v Palmer [1980] S.C.R. 759 at 760 (“if believed could reasonably…be expected to have affected the result”); R. v McMartin [1964] S.C.R. 464 at 493 (“the proposed evidence is of sufficient strength that it might reasonably affect the verdict of the jury”). Regarding Australia, see Australian Legal Monthly Digest § 7105 (2000) (“would have produced a significant possibility that the verdict would have been one of acquittal”). Regarding New Zealand, see R. v Dougherty [1966] 3 NZLR 257 at 265 (“might reasonably have led the jury to return different verdicts”). Finally, regarding South Africa, see S v Ndweni & Ors. 1999 (4) SA 877 (A) at 880 (“materially relevant”).
128 - Trial Judgement, para. 782. The Trial Chamber further found that the attack on Ahmici was part of a broader Bosnian Croat campaign to forcibly expel the Bosnian Muslims from the entire Lasva Valley region, and that the Kupreskic brothers knew this was the context in which their acts occurred. See Trial Judgement, paras. 783 and 790.
129 - Trial Judgement, paras. 421-422.
130 - Trial Judgement, para. 430.
131 - Trial Judgement, para. 334. The Trial Chamber also found that “able-bodied Croatian inhabitants of Ahmici provided assistance and support in various forms.” The Trial Chamber described the “Jokers” or “Jokeri” as a special anti-terrorist unit of the Croatian military police. See Trial Judgement, para. 132.
132 - Trial Judgement, paras 421, 773 and 789.
133 - Trial Judgement, paras 422 and 773.
134 - Trial Judgement, paras. 423 and 773.
135 - Trial Judgement, para. 426.
136 - Trial Judgement, para. 430.
137 - Trial Judgement, paras 425-426 and 775-776.
138 - Trial Judgement, para. 407.
139 - Trial Judgement, para 428.
140 - Trial Transcript, 3-4 (recording the motion hearing of 10 March 1998).
141 - Trial Transcript, 33 (recording the motion hearing of 10 March 1998). At the time, the Trial Chamber stated that a subsequent decision setting out the reasons would be issued at a later date. The Appeals Chamber has, however, been unable to locate any such decision on the record.
142 - Prosecution Pre-Trial Brief, para. 26.
143 - Naser Ahmic, his wife Zehrudina Ahmic and their two children, Elvis and Sejad.
144 - Trial Judgement, paras 388, 405-407.
145 - Trial Judgement, paras 426 and 779.
146 - Trial Judgement, paras 786 and 793. The Trial Chamber also rejected the evidence of Witness C who testified with regard to Zoran and Mirjan Kupreskic’s presence as HVO members in the Ahmici village on 16 April 1993, see Trial Judgement, para. 774.
147 - Furundzija Appeal Judgement, para. 147. See also Krnojelac Decision of 24 February 1999, paras 7 and 12; Krnojelac Decision of 11 February 2000, paras 17 and 18; and Brdjanin Decision of 20 February 2001, para.18.
148 - See generally Krnojelac Decision of 11 February 2000, para. 18; Br|anin Decision of 20 February 2001, para. 22.
149 - Kvocka Decision of 12 April 1999, para 17; Brdjanin Decision of 26 June 2001, para. 61.
150 - See Prosecutor v Erdemovic, Case No.: IT-96-22, Indictment, 22 May 1996, para. 12 (identifying the victims as “hundreds of Bosnian Muslim male civilians”).
151 - Kvocka Decision of 12 April 1999, para. 23.
152 - Krnojelac Decision of 24 February 1999, para. 40.
153 - Krnojelac Decision of 11 February 2000, para. 23.
154 - Organised detention listed in paragraph 21 of the Amended Indictment is excluded because the Prosecution did not present any evidence of such criminal conduct and, accordingly, the Trial Chamber did not address any such allegations in the Trial Judgement.
155 - Appeal Transcript, 861-862.
156 - The allegations relating to four of those murders were not upheld at trial.
157 - This is possible when the particular act took place within the context of a widespread or systematic attack directed against a civilian population (occurring during an armed conflict) and when the accused knew of this wider context.
158 - Brdjanin Decision of 26 June 2001, para. 61.
159 - Trial Transcript, 1696-1697.
160 - Although the Trial Chamber relied upon some peripheral evidence, in addition to the evidence of Witness H, in support of the persecution charge, it is insufficient to sustain the persecution charge. See infra paras. 228 et seq.
161 - Prosecution Pre-Trial Brief, para. 27; Trial Transcript, 1696-1697.
162 - Trial Transcript, 1696.
163 - Trial Transcript, 1696-1697.
164 - Trial Transcript, 1697-1698
165 - Trial Transcript, 1700.
166 - Trial Transcript, 12709.
167 - Trial Transcript, 12710-12711.
168 - Trial Transcript, 12710.
169 - Trial Transcript, 12712.
170 - Emphasis added.
171 - See the further discussion of this issue infra paras 306-326.
172 - Trial Judgement, para. 811. The Appeals Chamber assumes that “the principle set out above” is the principle of legality discussed in para. 626 of the Trial Judgement.
173 - Appeal Transcript, 862-863.
174 - Appeal Transcript, 838-839, 862.
175 - Prosecution Pre-Trial Brief, para. 23.
176 - Prosecution Pre-Trial Brief, para. 27.
177 - Prosecution Pre-Trial Brief, para. 23.
178 - Prosecution Pre-Trial Brief, para. 27.
179 - Trial Transcript, 96-127.
180 - Appeal Transcript, 863.
181 - The Trial Chamber’s Order for the Protection of Victims and Witnesses, 9 July 1998; see also Prosecution Response, para. 11.20.
182 - Order for the Protection of Victims and Witnesses, 9 July 1998, 2.
183 - Prosecutor’s Request for Additional Time to Disclose the Statement of One Witness, 7 July 1998 (Ex Parte and Under Seal).
184 - The latter allegation was not upheld because of insufficient evidence.
185 - Decision on Defence Challenges to Form of the Indictment, 15 May 1998, 2.
186 - The Trial Chamber’s finding that the two Defendant’s provided local knowledge and the use of their houses as bases for the attacking forces is considered infra paras 233-241.
187 - Zoran Kupreskic Appeal Brief, paras. 37 et seq. and 67 et seq.; Zoran Kupreskic Supplemental Document, 17 et seq.; Mirjan Kupreskic Appeal Brief, 76 et seq.; Mirjan Kupreskic Supplemental Document, 3 et seq.; Appeal Transcript, 654-656, 677-682, 685-689, 693-701, 703-707.
188 - See generally, Trial Transcript, 1617-1695.
189 - Trial Judgement, para. 425.
190 - Tadic Appeal Judgement, para. 64; Aleksovski Appeal Judgement, para. 63; Celebici Appeal Judgement, paras 434, 491. See also the discussion supra paras 28-30.
191 - See the discussion supra paras 34-40.
192 - Zoran Kupreskic Appeal Brief, paras. 72-73; Zoran Kupreskic Supplemental Document, 18-19; Mirjan Kupreskic Appeal Brief pp. 85-87; Mirjan Kupreskic Supplemental Document, 5-6; Appeal Transcript, 681-682, 694-695.
193 - The defence refers specifically to the evidence of Witness KL (who was in the house next door to Witness H’s house and said that it was dark and so the electric lights in his house were on at the time of the attack), Witness GG (she turned the lights on in the room at the commencement of the attack), Witness K (it was so dark that her husband was unable to find his trousers), Witness C (it was “pitch dark”), Witness ADA (it was dark at the time the attack commenced).
194 - Mirjan Kupreskic Appeal Brief, 85-86; Appeal Transcript, 694-695.
195 - Mirjan Kupreskic Appeal Brief, 91-92; Mirjan Kupreskic Supplemental Document, 7.
196 - Prosecution Response, para. 12.60; Appeal Transcript 843-844. In particular, the Prosecution referred to Witness E (it was dawn when she awoke); Witness D (it was still dark when the shooting started but later when she ran out of her house there was light and the rain had started); Witness G (it was visible because some houses were burning); Milutin Vidovic (at 5:15 a.m. the darkness was receding and dawn was breaking); and Zoran Kupreskic (dawn had broken at the time the shooting began).
197 - Prosecution Response, para. 12.61.
198 - See the discussion of Witness SA and her various statements, infra paras 164 et seq.
199 - See the discussion of Witness KL and his various statements, infra paras 194-195.
200 - See supra paras. 39.
201 - Trial Judgement, para. 339 (c).
202 - See supra paras. 32 and 39.
203 - Witness H testified that she saw Vlatko Kupreskic near her home as she was fleeing on the morning of 16 April 2001. See infra paras 297-298.
204 - Trial Judgement, para. 403, (footnotes omitted).
205 - Trial Judgement, para. 425.
206 - Trial Transcript, 1729.
207 - Zoran Kupreskic Appeal Brief, paras 31 and 74; Mirjan Kupreskic Appeal Brief, 96-97; Appeal Transcript, 697-698.
208 - Prosecution Response, para. 12.51.
209 - Prosecution Response, para. 12.50.
210 - See, e.g., Celebici Appeal Judgement, paras. 497.
211 - Trial Transcript, 9861-9862. Professor Wagenaar is an experimental psychologist. He was called by the defence as an expert witness on the question of identification evidence in criminal trials. He has published more than 150 articles, many of them dealing with problems of human perception and memory. See Trial Transcript, 9841-9842.
212 - Exhibit D 1/2.
213 - See the discussion of these inconsistencies infra paras. 155-163.
214 - Trial Transcript, 1703-1705, 1730-1731.
215 - Trial Transcript, 2067-2068.
216 - Trial Transcript, 8979.
217 - Trial Transcript, 8980.
218 - Trial Transcript, 8984-8986, 9046.
219 - Trial Transcript, 8988-8989.
220 - Trial Transcript, 9034-9036.
221 - Trial Transcript, 9039, 9043-9044 and 9051-9052.
222 - Trial Transcript, 8992-8994.
223 - Trial Transcript, 8992.
224 - Prosecution Closing Brief, para. 5.40.
225 - Prosecution Closing Statement, Trial Transcript, 12642.
226 - Trial Judgement, para. 402 and footnote 518.
227 - Trial Judgement, para. 425.
228 - Zoran Kupreskic Appeal Brief, para. 68; Mirjan Kupreskic Appeal Brief pp. 77-78; Appeal Transcript, 698.
229 - Prosecution Response, para. 12.11.
230 - Trial Judgement, para. 403.
231 - Trial Transcript, 1621.
232 - Trial Transcript, 1749.
233 - Trial Transcript, 1749.
234 - Trial Transcript, 1719.
235 - Exhibit D 1/2 (the December 1993 Statement).
236 - Trial Transcript, 1720. Although Witness H denied that she had made the December 1993 Statement, she accepted that aspects of the statement were correct.
237 - Trial Transcript, 1180 and 11183 (explaining that Zoran Kupreskic was employed in the Slobodan Princip Seljo factory near Vitez from May 1983) and 11512 (explaining that Mirjan Kupreskic worked in the Sutra store); Trial Transcript, 11559 (referring to Mirjan Kupreskic’s work in the store). See also Mirjan Kupreskic Closing Brief, 68; Trial Transcript, 12788 (the closing argument of counsel for Zoran and Mirjan Kupreskic that Witness H’s claim to know the Defendants well was called into question as a result of her erroneous claim that Zoran worked in a store).
238 - Trial Judgement, para. 370.
239 - Trial Judgement, para. 371.
240 - Mirjan Kupreskic Appeal Brief, 89-90; Zoran Kupreskic Appeal Brief, para. 70; Appeal Transcript, 679.
241 - Prosecution Response, paras 12.69-12.72.
242 - Mirjan Kupreskic Appeal Brief, 90.
243 - Prosecution Response, para. 12.7.
244 - Trial Transcript, 1642-1643.
245 - Trial Transcript, 1645-1646.
246 - Trial Transcript, 1758.
247 - Trial Transcript, 1759-1760.
248 - Trial Transcript, 1760.
249 - Zoran Kupreskic Appeal Brief, para 68; Mirjan Kupreskic Appeal Brief, pp. 78-85; Appeal Transcript, 698.
250 - Trial Transcript, 1711.
251 - Prosecution Response, paras. 12.52-12.57; Appeal Transcript, 841.
252 - Trial Judgement, para. 402.
253 - See, e.g., Celebici Appeals Judgement, para. 497.
254 - See the discussion infra para. 186.
255 - Although there was no English translation of the December 1993 Statement on the trial record, the Appeals Chamber obtained an official translation of this document in order to consider the impact of the alleged inconsistencies on Witness H’s credibility.
256 - The December 1993 Statement specifies that Witness H looked out the window, but Witness H denied this during her testimony before the Trial Chamber. Trial Transcript, 1733.
257 - According to the December 1993 Statement, Witness H recalled that there were nine attackers in and around her, house, including two in front of the garage. At trial, Witness H referred to only five and made no mention of any soldiers in front of the garage. Trial Transcript, 1647.
258 - In her testimony Witness H said that she sat down on the door-step to put on her sneakers before she left the house. Trial Transcript 1654. By contrast, in her December 1993 Statement, Witness H said she simply walked out of the house.
259 - Trial Transcript, 1641 and 1644.
260 - Trial Transcript, 1657-1659.
261 - Witness H’s two siblings were also present but were too young to testify about the events.
262 - Exhibit C 1.
263 - Exhibit C 2.
264 - Exhibit C 3.
265 - Exhibit C 4.
266 - Exhibit C 5.
267 - Trial Transcript, 1569.
268 - Trial Transcript, 1698-1699.
269 - Trial Transcript, 1847.
270 - Trial Transcript, 1854-1857, and 1859-1861.
271 - Trial Transcript, 1857-1858.
272 - Trial Transcript, 1861.
273 - Trial Transcript, 1879-1881.
274 - Trial Transcript, 1881-1882.
275 - Trial Transcript, 1970-1971.
276 - Trial Transcript, 2429-2430.
277 - See Witness Summons by the Chamber Pursuant to Rule 98 of the Rules of Procedure and Evidence, 30 September 1998.
278 - Witness Summons by the Chamber Pursuant to Rule 98 of the Rules of Procedure and Evidence, 30 September 1998.
279 - Trial Transcript, 3983-3984.
280 - Trial Transcript, 3985-3987.
281 - Trial Transcript, 3987-3990.
282 - Trial Transcript, 3990-3991.
283 - Trial Transcript, 4891-4982.
284 - On 11 January 1999, counsel for Zoran Kupreskic presented the joint opening statement for the Kupreskic brothers. Trial Transcript, 5026-5044.
285 - Zoran Kupreskic Appeal Brief, paras 33 and 76; Appeal Transcript, 658 and 685.
286 - Mirjan Kupreskic Appeal Brief, 59-61.
287 - Prosecution Response, para. 12.41; Appeal Transcript, 846-847.
288 - Prosecutor v Furundzija, Case No.: IT-95-17/1-T, Judgement, 10 December 1998, para. 109.
289 - Prosecution Response, para. 12.39.
290 - Decision on the Motions of Drago Josipovic, Zoran Kupreskic and Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94 (B), 8 May 2001, para. 10 (stating “…it is clear from the trial transcript that this witness could have been called during the course of the Kupreskic trial as part of the defence case, had the defence wished to call her. Furthermore, it is clear from the transcript that the defence did not object at the time to the Trial Chamber’s decision not to call the witness, or even challenge it by way of appeal…the defence has no right to assume what a Chamber will or will not accept in making its findings; it must put forward its best case in the first instance. If the defence had wanted to emphasise a particular issue in relation to Witness SA during the trial, then it ought to have called Witness SA during the course of the defence case, or objected to the Trial Chamber’s decision not to call Witness SA at the time. That failure cannot be rectified at the appeals stage.”)
291 - Trial Transcript, 3693-3694.
292 - Trial Transcript, 3694.
293 - Trial Transcript, 3758-3759.
294 - Trial Transcript, 1698-1699.
295 - Mirjan Kupreskic Closing Brief, 55.
296 - See the discussion supra paras 166-167.
297 - Trial Judgement, para. 404.
298 - Mirjan Kupreskic Appeal Brief, 61-62.
299 - Prosecution Response, para. 11.28.
300 - Prosecution Response, para. 12.34.
301 - Mirjan Kupreskic Appeal Brief, 65, 72-75; and Appeal Transcript 699-700.
302 - Prosecution Response, para. 12.35.
303 - Mirjan Kupreskic Appeal Brief, 72-75.
304 - Trial Transcript, 1641-1645.
305 - Appeal Transcript, 699.
306 - See the discussion supra paras 159-161.
307 - Trial Transcript, 1716.
308 - Trial Transcript, 1717.
309 - Trial Transcript, 1717.
310 - Trial Transcript, 1717.
311 - See e.g., Trial Transcript, 9858-9860 (testimony of Professor Wagenaar, the defence expert on the question of identification evidence, who testified that “[r]ecognition is usually a process that happens very quickly. You see something. You say, “I know who that is”. Recognition is not something that is spread out over a month, so that first, you didn’t know it; after several months, you know it. That process, very gradually, you start to realise what or whom you saw, is totally different from immediate perception. It is a construction. When you start to realise, you use all sorts of information to make the vague image that you have in your head sharper, and at the end you know—“Ah, but now I know what that vague image in fact means”. But that’s not perception; that is reconstruction, and reconstruction is very much influenced by the information you receive during that period.” The possibility that Witness H’s evidence could have been influenced by the views of other family members is considered infra paras 191-201.
312 - Prosecutor v Tadic, Case No.: IT-94-1-T, Opinion and Judgement, 7 May 1997, para. 240.
313 - Mirjan Kupreskic Appeal Brief, 93-95; Zoran Kupreskic Appeal Brief, para. 67; Appeal Transcript, 657, 705-706.
314 - Mirjan Kupreskic Appeal Brief, 93-94.
315 - Mirjan Kupreskic Closing Brief, 73.
316 - Prosecution Response, para. 12.83.
317 - Prosecution Response, paras 12.89-12.90.
318 - Trial Judgement, para. 399.
319 - The various statements relating to Witness KL referred to in the Trial Judgement are as follows: 18-19 April 1993 (Witness KL was interviewed for a local television station and did not divulge the identity of the attackers); 22 April 1993 (Witness KL was interviewed by investigators and stated that he did not recognise the attackers because they were masked with caps and paint although he did refer to the fact that he noticed some of his neighbours, not including Zoran and Mirjan Kupreskic, moving around the village a few days prior to the attack); 7 May 1993 (Witness KL made a statement to a United Nations Centre for Human Rights officer and said that he knew his neighbours from the “first house down the road” were responsible but he did not state their names. Witness KL also said that he was in a different room when his family was killed); 1 October 1993 (Witness KL was interviewed by an investigating judge and claimed the figures “resembled” Zoran and Mirjan Kupre{kic. Although the Trial Judgement refers to the date of this statement of 1 October 1998, a review of the transcript reveals that this is an error and that the correct date is 1 October 1993. See Trial Transcript, 2038—2039 and 2046). In February 1994, Witness KL definitely identified Zoran and Mirjan as perpetrators in the attack for the first time. See Trial Judgement, paras 393-394; 396-398; Trial Transcript, 2019-2047 and 2068-2097 (cross-examination of Witness KL on his prior statements).
320 - Trial Transcript, 2041 (cross-examination of Witness KL regarding the 1 October 1993 statement).
321 - Trial Transcript, 2105-2106.
322 - Trial Transcript, 2073 (recording the cross-examination of Witness KL regarding the statement he made on 22 April 1993 in which he referred to the attackers wearing black caps with slits for their eyes); Trial Transcript, 2072 (cross-examination of Witness KL regarding the statement he made to the investigating judge on 1 October 1993).
323 - Trial Transcript 1911 and 2072.
324 - Trial Transcript, 1642 (stating that Zoran Kupreskic’s face was painted with lines drawn with black shoe cream) and 1709 (specifying that all of the attackers had the same black lines on their faces).
325 - Trial Transcript, 1716. This is confirmed in Witness SA’s Second Statement and Third Statement where she expressly stated that Witness H told her that she recognised Zoran Kupre{kic amongst the attackers.
326 - Trial Transcript, 1713-1714.
327 - See the discussion, supra paras 146-150.
328 - As argued by Zoran Kupreskic, it is also somewhat at odds with the usual relationship dynamics existing within the patriarchal Bosnian Muslim community for a 13-year old girl to have influenced her 60-year old grandfather on such a significant matter rather than the reverse. See Trial Transcript, 657.
329 - Zoran Kupreskic Appeal Brief, para. 73; Zoran Kupreskic Supplemental Document, 20-21; Mirjan Kupreskic Appeal Brief, 87-88, 101104; Mirjan Kupreskic Supplemental Document, 7; Appeal Transcript, 680-681, 703.
330 - Prosecutor v Kunarac et al., Case No.: IT-96-23-T and IT-96-23/1-T, Decision on Motion for Acquittal, 3 July 2000, para. 4.
331 - Kordic Trial Judgement, para. 627.
332 - Kordic Trial Judgement, para. 630.
333 - Decision on Motions to Admit Material Relating to Witness AT into Evidence Pursuant to Rule 115 and to Call Additional Witnesses, 29 May 2001, para. 17.
334 - Trial Judgement, para. 333-334.
335 - Mirjan Kupreskic Appeal Brief, 87-88; Mirjan Kupreskic Supplemental Document, 7-8; Appeal Transcript, 680-681, 694, 703-705.
336 - Prosecution Response, paras 12.66-12.67.
337 - Trial Transcript, 1642-1646, 1721 and 1723-1724. See the discussion, supra para. 152-153 (regarding the cross-examination of Witness H on this point).
338 - Many witnesses also saw soldiers in camouflage uniforms. See, e.g., Trial Judgement, para. 206 (Witness A); Trial Judgement, para. 209 (Witness C); Trial Judgement, para. 214 (Witness E); Trial Judgement, para. 220 (Witness G); Trial Judgement, para. 234 (recording Witness O’s description of the “motley uniforms” of the soldiers); Trial Judgement, para. 215 (Witness F); Trial Judgement, para. 228 (Witness J); Trial Judgement, para. 237 (Witness Q); Trial Judgement, para. 248 (Witness W); Trial Judgement, para. 270 (Witness GG); Trial Judgement, para. 273 (Witness CA). Witnesses also saw soldiers with their faces painted with colours. See, e.g., Trial Transcript, 3255 (recording Witness X’s observation that the soldiers wore green paint). Others saw soldiers with caps concealing all of the face with only small slits for the eyes, ears and nose. See, e.g., Trial Judgement, para. 214 (Witness E); Trial Judgement, para. 262 (Witness CC).
339 - Trial Judgement, para. 222 (recording Witness G’s description of the soldiers black uniforms); Trial Judgement, para. 206 (recording Witness A’s statement that the soldiers’ faces were painted black); Trial Judgement, para. 214 (recording Witness E’s statement that the soldiers’ faces were painted black); Trial Judgement, para. 215 (recording Witness F’s statement that the soldiers’ faces were painted black); Trial Judgement, para. 228 (recording Witness J’s statement that the soldiers’ faces were painted black); Trial Judgement, para. 262 (recording Witness CC’s statement that the soldiers’ faces were painted black); Trial Judgement, para. 270 (recording Witness GG’s statement that the soldiers’ faces were painted black); Trial Judgement, para. 215 (recording Witness F’s observation that the soldiers carried automatic weapons); Trial Judgement, para. 215 (recording Witness F’s observation that the soldiers carried rocket launchers); Trial Judgement, para. 255 (recording Witness Y’s observations that the soldiers carried rocket launchers).
340 - Prosecution Opening Statement, Trial Transcript, 114. Witness AT confirmed that members of the HVO military police, including him, were wearing camouflage uniforms during the attack. Trial Transcript, 27617. Although he was not specifically asked to confirm the colour of the uniforms worn by the Jokers, Witness AT’s statements proceed on the assumption that it was common knowledge that the Jokers wore black uniforms. For example, during his cross-examination in the Kordic case, Witness AT was asked: “Well, he says that he saw you in the company of these 13 members of the Jokers, wearing a black uniform without any insignia, like the rest of the Jokers. Did you, during the month of April, wear a black uniform?” Witness AT replied that he had not. See Witness AT, Kordic Trial Transcript, 27682.
341 - Trial Judgement, para. 132. See also Trial Judgement, para. 135.
342 - Trial Transcript, 12136.
343 - Kordic Trial Transcript, 27606. Although, at certain points in the English translation of his statements to the Prosecution, Witness AT referred to the Jokers being deployed to the “Kupreskic brothers’ house”, the Appeals Chamber does not consider that this gives rise to an implication that Zoran and Mirjan Kupreskic were involved in the organisation of the attack. Mirjan Kupreskic pointed out during the Appeal Hearing that the original B/C/S version of Witness AT’s statement refers to the “Kupreskic houses” and that the English translation was in error. Furthermore, the brothers lived in separate houses so that any reference to “the “Kupreskic brothers’ house” could not have been directed at them. See Appeal Transcript, 690-693. The Prosecution did not argue to the contrary. The reference to the “Kupreskic houses” appears to have been solely made by way of designating a strategic landmark for the attackers. See Witness AT Statement, 25 May 2000, 33. Accordingly, the Appeals Chamber does not, on the basis of this alone, draw any adverse inference about the Kupreskic brother’s involvement in the preparations for the Ahmici attack. Refer to the further discussion infra paras 233-241 about the participation of the Defendants in the preparations for the attack.
344 - Trial Judgement, para. 430.
345 - The defence also referred to the expert testimony of Prosecution witness Brigadier Dzambasovic to the effect that the HVO was organised on the basis of the territorial principle. See Trial Transcript, 12123.
346 - Trial Judgement, para. 377.
347 - Trial Judgement, para. 378.
348 - Appeal Transcript, 850-851.
349 - Exhibit D 38/2. See Prosecution Closing Brief, para. 4.27.
350 - Trial Transcript, 12236-12240. The Trial Chamber referred to this exhibit in para. 284 of the Trial Judgement as part of the evidence adduced to show that the HVO had been placed on a “higher state of readiness” but did not consider whether it also showed that the Vitez Brigade had been deployed to villages other than Ahmici on the morning of 16 April 1993.
351 - Witness AT Statement, 25 May 2000, 28. See also Kordic Trial Transcript, 27598-27599 and 27755-27756.
352 - Prosecution Opening Statement, Trial Transcript 114. See the discussion supra para. 208.
353 - Trial Judgement, para. 333.
354 - Trial Judgement, para. 334.
355 - Witness AT Statement, 15 August 2000, 11. To illustrate his point, Witness AT recounted how, in the early hours of 16 April 1993, as his group of military police were crouched in their positions waiting for the signal to descend upon the sleeping village of Ahmici, a young local man came up to them. One member of the group knew him and the young man offered to provide information about the layout of the village and then proceeded to accompany the group in their assault on the Bosnian Muslim homes that morning. Upon being asked whether there was a pattern of local individuals joining in the operation Witness AT said, “I wouldn’t say there was a pattern, but there was some individuals who, on their own initiative, joined. Those who were braver, younger local people.” Kordic Trial Transcript, 27620.
356 - Kordic Trial Transcript, 27770.
357 - See Trial Judgement, para. 258 (recounting that Witness Z saw Drago Josipovic, in the afternoon of 16 April 1993, in camouflage uniform, with an automatic rifle but without face paint, in the company of four other soldiers with rifles). See also Trial Judgement, para. 275 (recounting that Witness CA saw Drago Josipovic in camouflage uniform on the day of the attack); Trial Judgement, para. 480 (recounting that Witness EE saw Drago Josipovic wearing a camouflage uniform and camouflage cap during the attack on her house).
358 - Although Witness KL also described them as being present during the attack on his house and attired in an identical manner to Witness H, the Trial Chamber rejected his evidence as incapable of belief. See the discussion supra para. 194. Similarly, Witness C gave evidence that the Kupreskic brothers were wearing camouflage uniforms and that their faces were not painted, but his evidence was also rejected by the Trial Chamber. See Trial Judgement, paras 405 and 427.
359 - See the discussion, supra para. 198.
360 - Witness KL and Witness C both purported to identify them, but the Trial Chamber rejected the evidence of both these witnesses as incapable of belief. See Trial Judgement, paras 397-399, 424, and 427.
361 - Prosecution Response, paras 12.63-12.64.
362 - Aleksovski Appeal Judgement, para. 62. See the further discussion supra para. 33.
363 - See the discussion supra paras 34-36.
364 - Trial Judgement, para. 407.
365 - Trial Judgement, para. 428.
366 - See the further discussion of Witness JJ’s evidence infra paras 228-232. On similar fact evidence, see the discussion infra para. 321-323.
367 - Trial Judgement, para. 425; see also Trial Judgement, para. 402.
368 - Celebici Appeal Judgement, para. 498.
369 - Prosecution Response, paras 12.104-12.119.
370 - Prosecution Response, paras 12.112-12.119.
371 - See the discussion supra paras 79 et seq.
372 - Witness JJ, Trial Transcript, 12335-12336.
373 - Trial Judgement, para. 412 (k). See also Trial Transcript, 11514-11515 (stating that Witness JJ may have been thinking of 18 April 1993, at which time he was mobilised into the HVO, and was forced to dig a trench or, alternatively, events that took place in Zume where military policeman shot over the heads of people in order to scare them into going back home).
374 - Trial Judgement, para. 428.
375 - Zoran Kupreskic Appeal Brief, paras 82-92; 144-14; Appeal Transcript, 673-674.
376 - Decision on the Motions of Appellants Vlatko Kupreskic, Drago Josipovic, Zoran Kupreskic and Mirjan Kupreskic to Admit Additional Evidence, 26 February 2001, para. 106. Zoran Kupreskic argues this footage shows that he was merely an observer at the ceremony dressed in civilian clothes and not a participant taking the oath dressed in camouflage uniform as Witness JJ had testified. See Appeal Transcript, 673.
377 - Trial Judgement, para. 430.
378 - The Trial Chamber’s findings that the Kupreskic brothers provided local knowledge and the use of their houses as a base for the attacking troops is considered infra, paras 233-241.
379 - Trial Judgement, para. 486.
380 - Trial Judgement, para. 505.
381 - The Appeals Chamber notes that the Prosecution has conceded this point stating that “(i(t is clear from a reading of the Judgement that the Trial Chamber did not consider this fact (Witness JJ’s evidence( to be conclusive of the Appellant’s guilt, but that it forms a component in the composition of evidence against the Appellant.” See Prosecution Response, para. 14.12.
382 - Trial Judgement, para. 430.
383 - Trial Judgement, paras 388 and 423.
384 - Mirjan Kupreskic Appeal Brief, 135-137.
385 - Zoran Kupreskic Supplemental Document, 10 and 16.
386 - Prosecution Response, para. 21.12.
387 - Trial Transcript, 3041; see also Trial Transcript, 3042.
388 - Trial Transcript, 3045.
389 - Trial Transcript, 3042.
390 - Trial Transcript, 3085.
391 - Trial Judgement, para. 231.
392 - Kordic Trial Transcript, 27759.
393 - Witness AT Statement, 25 May 2000, 14-15.
394 - A similar issue arises in Vlatko Kupreskic’s appeal against his conviction. See the further discussion of this issue, infra paras 295 (section on Vlatko Kupreskic).
395 - The “Bungalow” was the headquarters of the Jokers. It was located in Nadioci and was between five and ten minutes from Ahmici by foot. See Trial Judgement, para. 134.
396 - Witness AT Statement, 25 May 2000, 15.
397 - Witness AT Statement, 25 May 2000, 15.
398 - Witness AT Statement, 25 May 2000, 15.
399 - Zoran Kupreskic Appeal Brief, paras 7 and 46.
400 - Trial Judgement, para. 780 and 790.
401 - Trial Judgement, para. 379.
402 - Trial Judgement, footnote 589.
403 - See e.g. Celebici Appeal Judgement, paras 391, 414 and 427.
404 - Trial Judgement, para. 804.
405 - Trial Judgement, para. 772.
406 - Exhibit AD 1/3; Exhibit AD 2/3.
407 - Exhibit AD 3/3; Exhibit AD 4/3; Exhibit AD 5/3; Exhibit AD 6/3.
408 - Exhibit AD 7/3; Exhibit AD 8/3; Exhibit AD 9/3.
409 - Exhibit AD 10/3; Exhibit AD 11/3.
410 - Rule 115 Decision of 11 April 2001, para. 30.
411 - See Vlatko Kupreskic Supplemental Document, para. 11.
412 - In adopting such an approach, account is taken of Rule 117(A) of the Rules, requiring the Appeals Chamber to pronounce the judgement on appeal on the basis of the record on appeal together with such additional evidence as has been presented. During the Appeal Hearing, counsel for Vlatko Kupreskic indicated that the second ground was to be considered as an alternative to the first ground of appeal. See Appeal Transcript, 924.
413 - See the discussion supra para. 75.
414 - Trial Judgement, para. 795-804.
415 - Trial Transcript, 9396.
416 - Trial Transcript, 11751.
417 - Trial Transcript, 11751.
418 - Trial Transcript, 11857.
419 - Trial Transcript, 11858.
420 - Trial Transcript, 11861.
421 - Trial Transcript, 11863.
422 - Trial Transcript, 11865.
423 - Trial Transcript, 11865-11866.
424 - Transcript of Evidentiary Hearing, 288-349.
425 - Transcript of Evidentiary Hearing, 360-414.
426 - MUP is an abbreviation for “Vitez Police force”.
427 - Transcript of Evidentiary Hearing, 362.
428 - Exhibit AD 14/3 (tendered by counsel for Vlatko Kupreskic during the evidentiary hearing and admitted into evidence by the Appeals Chamber). See Decision on the Admission of the Prosecution’s Rule 92 bis Statements and the Exhibits Tendered at Evidentiary Hearing, 6 June 2001.
429 - See Prosecution Notice of Cross-Examination Material and Potential Evidence in Rebuttal for the Evidentiary Hearing on 17 & 18 May 2001, 8 May 2001, para. 7.
430 - Exhibit AD 10/3.
431 - Witness AT Statement, 15 August 2000, 23; see also Witness AT Statement, 25 May 2000, 4 (stating that he left the Vitez police station in October 1992).
432 - Appeal Transcript, 609.
433 - Vlatko Kupreskic Appeal Brief, para. 18.
434 - Vlatko Kupreskic Appeal Brief, para. 17.
435 - Prosecution Response, para. 29.23.
436 - Prosecution Response, para. 29.30.
437 - Appeal Transcript, 882.
438 - Trial Judgement, para. 463.
439 - Trial Judgement, para. 463.
440 - Trial Judgement, para. 799.
441 - Rule 115 Decision of 11 April 2001, para. 30.
442 - Trial Transcript, 2946.
443 - Vlatko Kupreskic Appeal Brief, para. 22 (a)-(f); Appeal Transcript, 629.
444 - Trial Transcript, 2978.
445 - Vlatko Kupreskic Appeal Brief, para. 23; Appeal Transcript, 630.
446 - Prosecution Response, para. 28.3.
447 - Trial Transcript, 728-927.
448 - Appeal Transcript, 628; Vlatko Kupreskic Appeal Brief, para. 41 (k).
449 - Vlatko Kupreskic Appeal Brief, para. 41 (l).
450 - Prosecution Response, para. 28.18.
451 - Appeal Transcript, 884.
452 - Trial Transcript, 778.
453 - Trial Judgement, para. 135 and footnote 136.
454 - Trial Transcript, 2336-2369.
455 - Trial Transcript, 2432-2460.
456 - Trial Transcript, 2608-2631.
457 - Exhibit D 8/2.
458 - Exhibit D 8/2, 19.
459 - Vlatko Kupreskic Appeal Brief, para. 30.
460 - Trial Transcript, 8594-8595.
461 - He produced his HVO permit for his trip, his passport and a certificate from the city of Frankfurt.
462 - Vlatko Kupreskic Appeal Brief, para. 40.
463 - Trial Judgement, para. 466.
464 - Trial Judgement, paras 438 to 441.
465 - Trial Judgement, para. 464.
466 - Trial Transcript, 1617-1766.
467 - Trial Transcript, 1884-2128.
468 - Trial Judgement, para. 470 (footnote omitted).
469 - Trial Judgement, para. 424.
470 - Trial Judgement, para. 399.
471 - See generally, Josipovic Reply.
472 - Appeal Transcript, 714.
473 - See the discussion supra paras 79-83.
474 - The acquittals on counts 17 and 19 were based on cumulative conviction considerations. See the further discussion infra paras 379-388.
475 - See the discussion supra paras 88-114.
476 - Counts 17 and 19 charged Josipovic cumulatively for the same alleged criminal conduct.
477 - Trial Transcript, 3949: “I believe that the events described by the witness fall outside the scope of the indictment, and I think the witness should not be questioned in respect of that”.
478 - Trial Transcript, 3950.
479 - Trial Transcript, 3950-3951.
480 - Trial Transcript, 3950-3951.
481 - Trial Judgement, para. 811. See supra para. 111 (setting out the relevant passage).
482 - Trial Transcript, 10.
483 - Prosecution Pre-Trial Brief, para. 20.
484 - Prosecution Pre-Trial Brief, para. 27.
485 - Trial Transcript, 125-126.
486 - Trial Transcript, 96-127.
487 - As discussed in relation to Zoran and Mirjan Kupreskic supra, para. 93.
488 - See Archbold: Criminal Pleadings, Evidence and Practice 2000, § 13-37 (P.J. Richarson et al. eds, 2000); See also John Strong, McCormick on Evidence § 190, at 797-812 (4th ed. 1992).
489 - Brdjanin Decision of 26 June 2001, para. 62.
490 - Brdjanin Decision of 26 June 2001, para. 62 (referring to Rule 65ter (E)(i)).
491 - The current version of Rule 65ter(E)(i) was adopted at the Twenty Third Plenary Session, 12 April 2001, and entered into force on 4 May 2001. Rule 65ter(E)(ii)(C) originally appeared as Rule 65ter(E)(iv)(c) and was introduced at the Twenty First Plenary Session, 15 – 17 November 1999, and entered into force on 7 December 1999.
492 - See Amended Indictment, paras 32 to 35 (outlining counts 16 to 19).
493 - Objection of the Counsel of the Accused Drago Josipovic Because of Defects in the Form of Indictment, 16 April 1998.
494 - Decision on Defence Challenges to Form of the Indictment, 15 May 1998, 2.
495 - Appeal Transcript, 720.
496 - Trial Judgement, para. 482.
497 - Appeal Transcript, 728.
498 - Appeal Transcript, 731.
499 - Appeal Transcript, 730.
500 - Prosecution Response, para. 4.7 and para. 4.22.
501 - Trial Judgement, para. 483.
502 - Prosecution Response, para. 4.7 (referring to the Trial Judgement, para. 503).
503 - Prosecution Response, para. 4.11.
504 - Prosecution Response, para. 4.25.
505 - Prosecution Response, para. 4.26.
506 - Prosecution Response, para. 4.27.
507 - Trial Judgement, paras 402 and 482 (a)-(b).
508 - Trial Judgement, para. 503.
509 - Trial Judgement, para. 503.
510 - See the discussion supra paras. 34-40.
511 - Trial Judgement, para. 503.
512 - Prosecutor v Tadic, Case No.: IT-94-1-T, Opinion and Judgement, 7 May 1997, paras 296-302. The same applies in domestic courts. For example, in England and Wales, in cases where different counts depend on the uncorroborated evidence of the same witness and the credibility of the witness is put in issue, different verdicts on the different counts would not render the convictions unsafe. See Archbold: Criminal Pleadings, Evidence and Practice 2000, § 7-70 (P.J. Richardson et al. ed., 2000) (citing to R. v Bell [1997] 6 Archbold News 2 CA, R. v Van der Molen [1997] Crim.L.R. 604, and R. v Clarke and Fletcher [1997] 9 Archbold News 2, CA); see also R. v Markuleski [2001] NSWCCA 290.
513 - Prosecutor v Tadic, Case No.: IT-94-1-A-AR77, Appeal Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 27 February 2001, para. 92.
514 - Trial Judgement, para. 485.
515 - The only challenge Josipovic has pursued regarding the credibility of Witness DD is based upon the additional statement of Witness CA admitted under Rule 115 on appeal. See infra paras 349-353.
516 - Trial Judgement, para. 503.
517 - Witness AT Statement, 15 August 2000, 27.
518 - Kordic Trial Transcript, 27654.
519 - Kordic Trial Transcript, 27778.
520 - Appeal Transcript, 742.
521 - Appeal Transcript, 743.
522 - Appeal Transcript, 824.
523 - Appeal Transcript, 745.
524 - Prosecutor v Kordic et al., Case No.: IT-95-14/2-T, Prosecutor’s Closing Brief, 13 December 2000, 75.
525 - Prosecutor v Kordic et al., Case No.: IT-95-14/2-T, Prosecutor’s Closing Brief, 13 December 2000, para. 234.
526 - See the discussion supra paras 203-205, 214, 216, 218, and 238-240.
527 - Prosecutor v Kordic et al., Case No.: IT-95-14/2/T, Judgement, 26 February 2001, para. 630.
528 - Appeal Transcript, 739.
529 - Appeal Transcript, 739.
530 - Appeal Transcript, 739.
531 - Appeal Transcript, 739.
532 - Trial Judgement, para. 503.
533 - Witness AT Statement, 15 August 2000, 27.
534 - Witness AT Statement, 15 August 2000, 27.
535 - Witness AT Statement, 15 August 2000, 27.
536 - Witness AT Statement, 15 August 2000, 28.
537 - Appeal Transcript, 741 and 743.
538 - Rule 115 Decision of 26 February 2001, para. 58.
539 - Request for the Derivation of Additional Proofs, 2 October 2000, Annex 2 (“Information on the Witness of the Defense”).
540 - Request for the Derivation of Additional Proofs, 2 October 2000, Annex 2 (“Information on the Witness of the Defense”).
541 - Request for the Derivation of Additional Proofs, 2 October 2000, Annex 2 (“Information on the Witness of the Defense”).
542 - Rule 115 Decision of 6 July 2000, 2.
543 - Appeal Transcript, 746.
544 - Appeal Transcript, 746.
545 - Appeal Transcript, 831.
546 - Appeal Transcript, 831.
547 - Appeal Transcript, 832.
548 - Trial Transcript, 3899-3907.
549 - Trial Judgement, para. 504.
550 - Trial Judgement, para. 506.
551 - Trial Judgement, paras 811, 812, and 813.
552 - Josipovic Appeal Brief, 25.
553 - Josipovic Appeal Brief, 28.
554 - Josipovic Reply, Annex 2 (“Abandonment of Grounds of Appeal Settled by Previous Counsel”), para. 5:3.
555 - Prosecution Response, paras 4.73, 4.74 and 4.116.
556 - Trial Transcript, 3982-3983.
557 - Trial Judgement, para. 485; see also Trial Transcript, 3983.
558 - Trial Transcript, 3617.
559 - Trial Judgement, paras 811, 812 and 813.
560 - Santic Supplemental Document, 5.
561 - Santic Supplemental Document, 7.
562 - Santic Supplemental Document, 3.
563 - Appeal Transcript, 921.
564 - Trial Judgement, para. 500.
565 - Trial Judgement, para. 501.
566 - Trial Judgement, para. 862.
567 - Trial Judgement, para. 862.
568 - Appeal Transcript, 750-751.
569 - Appeal Transcript, 751.
570 - Trial Judgement, para. 476(a).
571 - Trial Judgement, para. 476(b).
572 - Trial Judgement, para. 477.
573 - Trial Judgement, para. 477.
574 - Trial Judgement, para. 477 (referring to Exhibits P250-252).
575 - Trial Judgement, para. 489 (b) (referring to Exhibit P253).
576 - Trial Judgement, paras 489 and 507.
577 - Furundzija Trial Judgement, para. 262 (emphasis added).
578 - Appeal Transcript, 755-756.
579 - See the discussion supra paras 205.
580 - Kordic Trial Transcript, 27665-27666.
581 - Appeal Transcript, 770.
582 - Appeal Transcript, 770-771.
583 - Appeal Transcript, 775.
584 - Appeal Transcript, 775.
585 - Trial Transcript, 4064-4263.
586 - Trial Judgement, paras 479, 480 and 503.
587 - Trial Judgement, para. 479 (summarising Trial Transcript pages 4077-4083, 4085-4091, 4109-4113, and 4116); and Trial Judgement, para. 480 (summarising Trial Transcript pages 4152-4153, 4216-4217, 4221, 4258 and 4159).
588 - See the discussion supra paras 327-337.
589 - Witness AT Statement, 25 May 2000, 18; Witness AT Statement, 16 August 2000, 28; Kordic Trial Transcript, 27615.
590 - Witness AT Statement, 25 May 2000, 18; Witness AT Statement, 15 August 2000, 28; Kordic Trial Transcript, 27615.
591 - Appeal Transcript, 778.
592 - Appeal Transcript, 758.
593 - Santic Appeal Brief, para. 2.1.
594 - Amended Indictment, para. 17.
595 - Amended Indictment, para. 20.
596 - Amended Indictment, para. 21.
597 - Amended Indictment, para. 35.
598 - Amended Indictment, para. 35.
599 - Trial Judgement, paras 497, 500, and 507-508.
600 - Santic Appeal Brief, para. 2.2.
601 - Trial Judgement, paras 823-824.
602 - Trial Judgement, paras 823-824.
603 - Trial Judgement, paras 831-833.
604 - Trial Judgement, paras 831-833.
605 - It should be noted that Santic has not appealed the issue of cumulative convictions. However, due to the fact that their convictions are identical, the Appeals Chamber’s conclusions on this issue concerning Josipovic should also be applied to Santic. See Celebici Appeal Judgement, paras 391, 414 and 427 (although Land`o did not lodge an appeal on the issue of cumulative convictions, the findings of the Appeals Chamber in relation to his co-appellants, Mucic and Delic, were also applied to his convictions).
606 - Prosecution Amended Appeal Brief, paras 1.3, 1.12 and 1.15.
607 - Appeal Transcript, 603.
608 - Prosecution Amended Appeal Brief, para. 3.19 (referring to Trial Judgement, para. 823).
609 - Josipovic Response, 3; Appeal Transcript, 719.
610 - Josipovic Response, 4-5.
611 - Josipovic Response, para. 4.7; Appeal Transcript, 719.
612 - Appeal Transcript, 604-605.
613 - Santic Response, 10.
614 - Santic Response, 10
615 - Santic Response, 10.
616 - Celebici Appeal Judgement, para. 400.
617 - Trial Judgement, para. 823.
618 - Celebici Appeal Judgement, paras. 412-413.
619 - Jelisic Appeal Judgement, para. 82.
620 - He also states that he did not “participate in the murder of Musafer Pušcul as a co-perpetrator by acting or omissions, nor did he stimulate others to commit murder, nor was he a commander. Thus he cannot be responsible for any inhumane acts committed by others.” Josipovic Appeal Brief, 34. However, this appears to be an evidentiary issue, unrelated to the legal question of cumulative convictions.
621 - Josipovic Appeal Brief, 34.
622 - Josipovic Appeal Brief, 34.
623 - Josipovic Appeal Brief, 35.
624 - Prosecution Response, para. 9.8. For an explanation of the difference in the underlying facts, see the discussion infra para. 393.
625 - Prosecution Response, paras 9.19-9.21.
626 - Prosecution Response, para. 9.38.
627 - Prosecution Response, para. 9.57.
628 - Prosecution Response, para. 9.66.
629 - Appeal Transcript, 934.
630 - Appeal Transcript, 934.
631 - Josipovic Appeal Brief, 34-35.
632 - Santic Appeal Brief, para. 2.5.
633 - Trial Judgement, paras 502 and 809.
634 - Trial Judgement, para. 810.
635 - Trial Judgement, para. 814.
636 - Trial Judgement, paras 504 and 811.
637 - Trial Judgement, paras 488 and 812.
638 - Trial Judgement, paras 509 and 813.
639 - Trial Judgement, para. 814.
640 - Counts 1, 16 and 18 respectively.
641 - See supra paras 388 and 396.
642 - Trial Judgement, para. 859.
643 - Trial Judgement, para. 859.
644 - Trial Judgement, para. 860.
645 - Trial Judgement, para. 826.
646 - Trial Judgement, paras. 503 and 827.
647 - Trial Judgement, para. 827.
648 - Counts 1, 16 and 18 respectively. The Appeals Chamber has also now substituted verdicts of guilt for counts 17 and 19 (violations of the laws or customs of war, murder and cruel treatment respectively).
649 - See supra paras 388 and 396.
650 - Trial Judgement, para. 862(emphasis added).
651 - Trial Judgement, para. 862.
652 - Trial Judgement, para. 862.
653 - Trial Judgement, para. 862.
654 - Joint argument was presented by Mr. Clegg, counsel for Josipovic. See Appeal Transcript, 573 et seq.
655 - Appeal Transcript, 574.
656 - Appeal Transcript, 575; see also Josipovic Reply, para. 3.8.
657 - Appeal Transcript, 575; see also Josipovic Reply, para. 3.8 (submitting that, “in principle, a sentence may be thought to be capricious or excessive if it is not of reasonable proportion with a line of sentences passed in similar circumstances for the same offences.”)
658 - Appeal Transcript, 575-576.
659 - Prosecution Response, para. 34.26; see also Appeal Transcript, 891–894.
660 - Celebici Appeal Judgement, para. 724 (citing Prosecutor v Erdemovic, Case No.: IT-96-22-A, Judgement, 7 October 1997, para. 15).
661 - Celebici Appeal Judgement, para. 725 (citations omitted).
662 - See Josipovic Reply, para. 3.15 (submitting that “[t]he silence of defence Counsel or of an unrepresented defendant does not absolve the Trial Chamber from its obligation under the Statute.”)
663 - Appeal Transcript, 577; see also Josipovic Reply, para. 3.14 (submitting that “[i]f material exists which demonstrates that the sentence is excessive then that material ought to be received by the Appeals Chamber even if it were not placed before the Trial Chamber.”); see also Josipovic Reply, para. 3.16.
664 - Appeal Transcript, 812.
665 - Appeal Transcript, 895.
666 - Appeal Transcript, 813.
667 - Appeal Transcript, 579-580.
668 - Appeal Transcript, 580.
669 - See generally Josipovic Closing Brief; see also Santic Closing Brief.
670 - Santic Appeal Brief, para. 3.4.5.
671 - Santic Appeal Brief, paras. 3.4.3-3.4.5.
672 - Josipovic Appeal Brief, 35. During the Appeal Hearing, counsel for Santic made a general submission on behalf of all Defendants on this topic. However, save for a general exposé of the factors taken into account in sentencing by the courts of the former Yugoslavia, no precise argument as to why the practice of these courts should be binding on the Tribunal was put forward. Similarly, no explanation was provided as to how the practice of the Tribunal digressed from this practice or how the Trial Chamber in the case of any of the Defendants had failed to apply these general principles. See Appeal Transcript, 589-596.
673 - For example, in relation to Josipovic’s argument, the Prosecution responds that the Trial Chamber’s consideration on this point is “legally unassailable.” Prosecution Response, para 38.46; see also Prosecution Response, para. 39.3.
674 - Rule 101(B) provides, inter alia, that “[i]n determining the sentence, the Trial Chamber shall take into account the factors mentioned in Art. 24, paragraph 2, of the Statute, as well as such factors as:…(iii) the general practice regarding prison sentences in the courts of the former Yugoslavia.”
675 - Jelisic Appeal Judgement, para. 117; Celebici Appeal Judgement, para. 813. The ICTR has taken a similar approach to sentencing pursuant to Art. 23 of its own Statute, which requires that “the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of Rwanda.” See, e.g., Serushago Sentencing Appeal Judgement, para. 30.
676 - Aleksovski Appeal Judgement, para. 107.
677 - Trial Judgement, para. 840.
678 - Trial Judgement, para. 841.
679 - Trial Judgement, footnote 989.
680 - Santic Appeal Brief, para. 2.4. He submits that “it violates fundamental principles of both international and virtually every national legal system to assess a punishment for a crime which is greater than that authorised by law at the time of the acts constituting the offence.”
681 - Santic Appeal Brief, para. 2.4(B).
682 - Santic Appeal Brief, para. 2.4(C).
683 - Santic Appeal Brief, para 2.4.
684 - Prosecution Response, para. 39.6.
685 - Celebici Appeal Judgement, para. 816.
686 - Celebici Appeal Judgement, para. 817.
687 - Rule 101(A).
688 - Appeal Transcript, 747.
689 - Josipovic Appeal Brief, 35 et seq.
690 - Prosecution Response, para. 37.17.
691 - Prosecution Response, paras. 37.20-37.21.
692 - Trial Judgement, paras 834-838, 858-860.
693 - Trial Judgement, para. 860.
694 - Trial Judgement, para. 835.
695 - Celebici Appeal Judgement, para. 837.
696 - Josipovic Appeal Brief, 38.
697 - Prosecution Response, para. 37.18.
698 - Trial Judgement, para. 810.
699 - Trial Judgement, para. 814.
700 - See the discussion supra paras 354-360.
701 - Trial Judgement, para. 813.
702 - Santic Appeal Brief, paras 3.6-3.7.
703 - Santic Appeal Brief, para. 3.6.
704 - Santic Appeal Brief, para. 3.7.
705 - Prosecution Response, paras 35.4-35.7.
706 - Prosecution Response, para. 39.10. The Prosecution submits that he fails to cite minimum elements “that would justify a comparison…such as demonstration of close similarity of criminal culpability, gravity of the crime, or degree of participation."
707 - Prosecution Response, para. 39.11.
708 - Santic Appeal Brief, para. 3.6
709 - Celebici Appeal Judgement, para. 731.
710 - Trial Judgement, para. 852. This principle has since been endorsed in the Celebici Appeal Judgement, para. 731 and the Aleksovski Appeal Judgement, para. 182. Although this paragraph is contained within the section devoted to Zoran and Mirjan Kupreskic, the Appeals Chamber considers that it is a principle that must have been applied by the Trial Chamber in its consideration of the sentences of the Defendants collectively, being general in nature.
711 - Appeal Transcript, 576.
712 - Celebici Appeal Judgement, para. 721.
713 - Celebici Appeal Judgement, para. 719.
714 - Santic Appeal Brief, paras 3.6-3.7.
715 - Santic Appeal Brief, para. 3.1.
716 - Santic Appeal Brief, para. 3.8(7).
717 - Santic Appeal Brief, para. 3.8(7).
718 - Santic Appeal Brief, para. 3.8(8).
719 - Santic Appeal Brief, para. 3.8(10).
720 - Santic Appeal Brief, para. 3.8(9).
721 - Prosecution Response, para. 39.15.
722 - See the discussion supra paras 363-368.
723 - Celebici Appeal Judgement, para. 745 (citing Aleksovski Appeal Judgement, para. 183).
724 - See the discussion supra para. 365.
725 - Celebici Appeal Judgement, para. 717.
726 - Santic Appeal Brief, para. 3.9.
727 - Prosecution Response, para. 39.8.
728 - Prosecution Response, para. 39.9.
729 - Celebici Appeal Judgement, para. 481.
730 - Trial Judgement, paras 836-847, 848-850 and 861-863.
731 - Trial Judgement, para. 478.
732 - Trial Judgement, para. 835. See generally Santic Closing Brief. In addition, the Appeals Chamber notes that in these submissions each of the factors referred to in Santic Appeal Brief were in fact presented before the Trial Chamber.
733 - Celebici Appeal Judgement, para. 837.
734 - Celebici Appeal Judgement, para. 725; Aleksovski Appeal Judgement, para. 187; Tadic Sentencing Appeal Judgement, paras. 20-22.
735 - Santic Supplemental Document, 7.
736 - Appeal Transcript, 779.
737 - Santic Supplemental Document, 8.
738 - Appeal Transcript, 889; see also Prosecution Response, paras. 32.6 and 33.1.
739 - Appeal Transcript, 890.
740 - Appeal Transcript, 889-890. For a general discussion, see Appeal Transcript, 921. In this section of the transcript Santic states that he agrees with all of the arguments presented by the Prosecution on this point. The Prosecution also considered the issue on the basis that it was a factor that had emerged after trial and stated that “as a general principle, material pertaining to new facts, to the extent that they are incapable of indicating any error by the Trial Chamber and therefore of rendering the sentence unsafe, are, as a principle, irrelevant and not admissible on appeal.” However, based on an interpretation of Rule 101 “that ensures its useful effect,” substantial co-operation with the Prosecution should be considered as an exception to the rule. Appeal Transcript, 814-815.
741 - It is noted that there is precedent to suggest that post-conviction behaviour is not relevant to assessment of sentence on appeal. In a pre-appeal hearing decision in the case of Jelisic, the Appeals Chamber accepted that a report from the detention unit as to the appellant’s post-sentencing behaviour was unavailable at the time of the trial but that “the Defendant’s post-sentence behaviour could be neither relevant to any issue before the Trial Chamber nor capable of being considered by it and therefore cannot show that the Trial Chamber committed any error in the exercise of its discretion.” On this basis, the evidence was rejected. Prosecutor v Jelisic, Case No.: IT-95-10-A, Decision on Request to Admit Additional Evidence, 15 November 2000.
742 - Emphasis added.
743 - Appeal Transcript, 719.
744 - Prosecution Amended Appeal Brief, para. 3.9.
745 - Prosecution Amended Appeal Brief, para. 3.10.
746 - Prosecution Reply to Josipovic, para. 2.20.
747 - Prosecution Reply to Josipovic, para. 2.20. During the Appeal Hearing, the Prosecution again requested that the Appeals Chamber pronounce obiter on this question, stating that although it “believes that the total sentence handed down against Drago Josipovic is appropriate in view of the severity of his conduct…the way the sentencing was set out is, nonetheless, in error.” Appeal Transcript, 604; see also Appeal Transcript, 835 (“perhaps an obiter pronouncement as to the correct imposition of sentence for persecution and murder under the circumstances would suffice and is appropriate”); Appeal Transcript, 891-892 and 932.
748 - Prosecution Amended Appeal Brief, para. 3.12 (stating that it intended to make further submissions on this error in its Prosecution Response regarding the appeal of Drago Josipovic).
749 - See, e.g., Tadic Appeal Judgement, para. 281.
750 - The Request of the Counsels of Zoran and Mirjan Kupreskic and Frago [sic] Josipovic for the Prolongation of the Appeal Period of the Verdict From 14.1.2000, 17 March 2000.
751 - The Request of the Counsel of Vladimir Šantic for the Enlargement of the Time Limit for the Appeal Against the Judgement of 14 January 2000, 23 March 2000; Request for the Extension of Time Limit for the Appeal Against the Judgement of 14 January 2000 in the Case of the Accused Vlatko Kupreskic (Confidential), 27 March 2000.
752 - Prosecution Response to the Defence Requests for an Extension of Time Filed on 17 March 2000 and 23 March 2000 and Motion for a Scheduling Order, 27 March 2000; Prosecution Response to the Confidential Defence Request for an Extension of Time Filed on 27 March 2000 (Confidential), 29 March 2000.
753 - Reply of the Counsels of Zoran Kupreskic, Mirjan Kupreskic and Drago Josipovic Considering the Objection of the Prosecutor to the Counsel’s [sic] Proposal for Prolongation of the Term for Explanation of the Appeal, 31 March 2000.
754 - Order Granting Extension of Time and Scheduling Order, 18 April 2000.
755 - Petition of the Counsels of Zoran Kupreskic, Mirjan Kupreskic, Drago Josipovic and Vladimir Santic with Which They Propose the Approval of the Petition Against the Decision of the Appeal Chamber from 18.4.00 and Lodge the Complaint or Alternatively the Repeated Proposal for Prolongation of the Term for the Appeal, 25 April 2000.
756 - Prosecution Response to the Defence Request for an Extension of Time Filed on 25 April 2000, 5 May 2000.
757 - Decision on Petition of the Counsels of Zoran Kupreskic, Mirjan Kupreskic, Drago Josipovic and Vladmir Šantic, 16 May 2000.
758 - Decision of the Registrar of 18 May 2000 (withdrawing the Assignment of Mr. Krajina and Mr. Par as Counsel for the Vlatko Kupreskic); Decision of the Registrar of 24 May 2000 (appointing Mr. Abell as counsel for Vlatko Kupreskic, 24 May 2000; Decision of the Registrar of 16 June 200 (appointing Mr. Livingston as co-counsel for Vlatko Kupreskic).
759 - Motion for Extension of Time to File Appellant’s Brief on Behalf of Vlatko Kupreskic, 27 June 2000.
760 - Motion for Extension of the Time File [sic] Appelation’s [sic] Brief on Behalf of Zoran Kupreskic Mirjan Kupreskic, Drago Josipovic and Vladimir “Vlado” Šantic, 28 June 2000. The Prosecution did not oppose any of the Defendants’ requests for an extension based upon the need to obtain the complete case file. See Prosecution Response to the Motion for Extension of Time to File Appellant’s Brief on Behalf of Vlatko Kupreskic, 29 June 2000.
761 - Order on Motions for Extension of Time, 29 June 2000.
762 - Appeal of the Counsel of Zoran Kupreskic, Mirjan Kupreskic, Drago Josipovic and Vladmir [sic] Šantic Against the Decision of the Pre-Appeal Judge Mohamed Bennouna Dated 29.6.00, 30 June 2000.
763 - Decision on “Appeal of the Counsel of Zoran Kupreskic, Mirjan Kupreskic, Drago Josipovic, and Vladimir Šantic Against the Decision of the Pre-Appeal Judge from 29 June 2000”, 4 July 2000.
764 - Prosecution’s Appeal Brief, 3 July 2000.
765 - Appeal Reasons of the Counsels of Zoran Kupreskic Against the ICTY Verdict from 15.1.00 IT-95-16-T (Partly Confidential), 3 July 2000.
766 - Defendant’s Appellate Brief (Partly Confidential), 3 July 2000.
767 - Drago Josipovic’s Appeal Brief (Confidential), 3 July 2000.
768 - Appelate [sic] Brief of Vladimir Santic, 3 July 2000. Vladimir Šantic subsequently withdrew that part of his client’s appeal based on the defence of alibi. See Motion for the Withdrawal of the part of the Appeal based on the alibi Defence of the Appellant Vladimir Šantic, 30 October, 2000.
769 - Zoran Kupreskic attached 20 documents to his brief. There were four documents related to his family; 11 documents related to the welfare of his family; four “Hrvatska Information Sluzba” (Croatian Intelligence Service)(HIS) reports from Croatian archives; and a report from a doctor relating to post-traumatic stress disorder. Mirjan Kupreskic attached six documents. Five of these related to his family and one was a HIS intelligence report.
770 - Motion for Extension of the Time to File Respondent’s Brief of the Prosecution, 19 July 2000.
771 - Motion for Extension of Time to File Respondent’s Brief of the Defence, 21 July 2000. The Prosecution responded to the latter. See Prosecution’s Response to Motion for Extension of Time to File Respondent’s Brief, 27 July 2000.
772 - Motion for a Scheduling Order for A Single Filing Date of Motions Under Rule 115 or, in the Alternative, Motion for an Order Rejecting The Admission of Additional Evidence (Confidential), 31 July 2000.
773 - Order on Motions for Extension of Time, 1 August 2000.
774 - Motion of the Counsels of Zoran Kupreskic, Mirjan Kupreskic and Drago Josipovic With Which They Request The Extention [sic] of the Time Limit, 16 August 2000.
775 - Prosecution’s Response to “Motion of the Counsels of Zoran Kupreskic, Mirjan Kupreskic and Drago Josipovic With Which They Request The Extension of the Time Limit”, 25 August 2000.
776 - Order, 29 August 2000.
777 - Scheduling Order, 30 May 2001.
778 - Confidential Appellant’s Brief on Conviction on Behalf of Vlatko Kupreskic, 5 September 2001; Appellant’s Brief on Sentence on Behalf of Vlatko Kupreskic (Confidential), 5 September 2000. Vlatko Kupreskic filed his appeal brief one day late. Therefore, he requested an extension of time. See Motion for Extension of Time to File Appellant’s Brief on Behalf of Vlatko Kupreskic, 11 September 2000 (seeking a retrospective extension of time for the unintentional late filing). The Appeals Chamber granted this motion. See Order on Application for Extension of Time, 13 September 2000. Counsel for Vlatko Kupreskic subsequently filed a public version of the brief. See Redacted Appellant’s Brief on Conviction on Behalf on Vlatko Kupreskic, 18 July 2001.
779 - Prosecution’s Respondent’s Brief (Confidential), 28 June 2001. In its Order of 2 July 2001, the Appeals Chamber accepted the filing as valid despite the fact that it exceeded the prescribed page limits under the Practice Direction and that the Prosecution had failed to seek advance authorisation from the Appeals Chamber to file an over-sized document. See Practice Direction on the Lengths of Briefs and Motions (IT/184). The prosecution filed a public version of their respondent’s brief. See Public Redacted Version of the Prosecution’s “Respondent’s Brief’ Filed on the 28 June 2001”, 18 July 2001.
780 - Scheduling Order Varying Time-Limit for Filing of Appellants’ Brief in Reply, 5 July 2001. This order was varied by further extending the time-limit for Zoran and Mirjan Kupreskic to file their brief in reply until no later than 2 p.m. on 20 July 2001. See Scheduling Order Varying Time Limit for Filing of Appellants’ Brief in Reply, 12 July 2001.
781 - Reply to Respondent’s Brief on Behalf of Vlatko Kupreskic (Confidential), 18 July 2001.
782 - Vladimir Santic Briief [sic] in Replay [sic] Under Rule 113 of the Rules of Procedure and Evidence, 18 July 2001.
783 - Partly Confidential Appellant’s Brief of Argument Under Rule 113 in reply to the Respondent’s Brief of Argument of the Prosecution, 18 July 2001.
784 - Brief in Reply by Zoran and Mirjan Kupreskic, 20 July 2001.
785 - Prosecution’s Motion Seeking Leave to File an Amended Appeal Brief, 15 May 2001.
786 - Decision on the Prosecution’s Motion Seeking Leave to File an Amended Appeal Brief, 30 May 2001.
787 - Defence’s Response of the Accused Vladimir Santicon Prosecutor’s Appeal Brief, 2 July 2001; Respondent’s Brief of Argument under Rule 112 in Response to the Prosecution’s Amended Appeal Brief, 6 July 2001.
788 - Prosecution Brief in Reply to the Respondent’s Brief of Vladimir Santic to the Prosecution’s Amended Appeal Brief, 16 July 2001; Prosecution Brief in Reply to the Respondent’s Brief of Drago Josipovic in Response to the Prosecution’s Amended Appeal Brief, 16 July 2001
789 - Scheduling Order, 30 May 2001.
790 - The Motion of the Appellant Vladimir Santic According to the Order of the Appeals Chamber Dated 30 May 2001 (Confidential), 12 June 2001.
791 - Motion of the Counsel of Zoran Kupreskic With Which he Ammends [sic] the Letter of Appeal Based on the Court Acceptance of New Proofs (Confidential), 13 June 2001; Supplemental Appellant’s Brief, on Behalf of Vlatko Kupreskic, Concerning Effect of Additional Evidence, Filed Pursuant to Scheduling Order Dated 20 May 2001 (Confidential), 13 June 2001; Confidential Suplemental [sic] Brief By Mirjan Kupreskic (Confidential), 13 June 2001. Following the Appeals Chamber’s Order of 3 July 2001, public versions of Zoran and Mirjan Kupreskic’s supplemental briefs were filed on 17 July 2001.
792 - Supplemental Appellant’s Brief Filed Pursuant to the Scheduling Order Dated 30th May 2001 on Behalf of Drago Josipovic Partly Ex Parte Confidential (Partly Confidential), 14 June 2001.
793 - Confidential Appellant’s Brief and Motion, Pursuant to Rule 115, on Behalf of the Appellant Vlatko Kupreskic, 5 September 2000. Vlatko Kupreskic also filed a motion pursuant to Rule 75 for protective measures seeking pseudonyms for eight witnesses in his appeal brief and in his Rule 115 motion. See Confidential Motion, Pursuant to Rule 75, For Measures to be Taken for the Protection of Certain Witnesses Referred to in the Rule 115 Motion and Appellant’s Brief on Behalf of Vlatko Kupreskic, 5 September 2000. This motion was granted by the Appeals Chamber. See Order on Motion of Vlatko Kupreskic for the Protection of Certain Witnesses (Confidential, Ex Parte), 26 February 2001. As the deadline for the filing of Rule 115 motions in relation to the other four Defendants was set as 4 October 2000 by the order of the Appeals Chamber of 29 August 2000, the Prosecution sought clarification as to when it should respond to Vlatko Kupreskic’s Rule 115 Motion. See Prosecution Motion for Clarification of the Time-Limit for Filing Response to Rule 115 Motion of Vlatko Kupreskic, or Alternatively for an Extension of Time (Confidential), 15 September 2000. This was followed by a “Reply on Behalf of Vlatko Kupreskic to ‘Prosecution Motion for Clarification of Time Limit for Filing Response to Rule 115 Motion for Vlatko Kupreskic or Alternatively for an Extension of Time’, 25 September 2000”. The Appeals Chamber ordered that the Prosecution could respond to Vlatko Kupreskic’s motion, as well as any other motions filed on or before 4 October 2000 by the other appellants, ten days after all the documents referred to in the motions were filed in an official language of the Tribunal. See Order on Motion for Clarification, 29 September 2000. Subsequently, clarification of this order was sought by Vlatko Kupreskic See Motion for Clarification of Order of Appeals’ [sic] Chamber Dated 29th September 2000, 9 October 2000. The Appeals Chamber ordered that its order of 29 September 2000 did not need further clarification. See Order on Motion for Clarification, 18 October 2000.
794 - Motion for Additional Evidence, 31 August 2000.
795 - Request for the Derivation of Additional Proofs, 2 October 2000.
796 - Request of the Counsel of Drago Josipovic for the Derivation of Additional Proofs Considering Rule 115 of the Book of Rules and Procedure [sic], 4 October 2000.
797 - Request for the Derivation of Additional Proofs, 4 October 2000.
798 - Request for Derivation of Additional Proofs, 12 December 2000.
799 - Motion of the Counsel of Zoran and Mirjan Kupreskic for the Acceptance of Additional Evidence, Which was Not Available at the Time of the Hearing Before the Trial Chamber (Confidential), 4 October 2000.
800 - Petition of the Counsels of Zoran and Mirjan Kupreskic for Derivation of Additional Proofs Before the Appeal Chamber, Which Proofs of the Counsels Were not Available During the Trial Before the Hearing Chamber (Confidential), 15 November 2000.
801 - Motion No. 3 of the Counsels of Zoran and Mirjan Kupreskic with which they Request the Derivation of Additional Proofs, Based On the Rule 115 of the Rules of Procedure and Evidence, 18 December 2000.
802 - Prosecution’s Consolidated Response to the Motions by Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic and Drago Josipovic to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 20 November 2000. This response was amended. See Corrigendum to Prosecution’s Consolidated Response to the Motions by Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic and Drago Josipovic to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 22 November 2000.
803 - Prosecution Response to Motion Entitled “Request for Derivation of Additional Proofs” Filed 12 December 2000 by Drago Josipovic to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 21 December 2000.
804 - Prosecution Response to “Motion No.3 of the Counsels of Zoran and Mirjan Kupreskic with Which They Request the Derivation of Additional Proofs, Based on the Rule 115 of the Rules of Procedure and Evidence”(Confidential), 22 January 2001. This filing was preceded by a Prosecution motion for an extension of time and an order of the Appeals Chamber granting that request. See Prosecution Motion for Extension of Time to File a Response to “Motion No. 3 of the Counsels of Zoran and Mirjan Kupreskic” Filed on 18 December 2000 (Confidential), 21 December 2000; Order on Prosecution Motion for an Extension of Time to File Response to Motion of Zoran and Mirjan Kupreskic (Confidential, Partly Ex Parte), 11 January 2001.
805 - Reply to the Prosecution’s Response to Motion by Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115(Confidential), 18 December 2000.
806 - Reply to the Prosecution’s Consolidated Response to the Motions by Zoran, Mirjan, Vlatko Kupreskic and Drago Josipovic to Admit Additional Evidence Pursuant to Rule 115 by Zoran and Mirjan Kupreskic (Confidential), 18 December 2000.
807 - Reply to the Prosecution’s Consolidated Response to the Motions By Zoran, Mirjan, Vlatko Kupreskic and Drago Josipovic to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 18 December 2000. These replies were filed after the Appeals Chamber granted a request by the four Defendants for an extension of time in which to file their replies: Order on Motions for Extension of Time, 13 December 2000. This order was preceded by the following filings. See Motion For Extension of Time to File A Reply to the Prosecution’s Response to Motion to Admit Additional Evidence Pursuant to Rule 115 By Vlatko Kupreskic, 4 December 2000; The Joinder of the Counsel of Zoran and Mirjan Kupreskic and Drago Josipovic to Motion for Extention [sic] of Time to Reply to the Prosecution Response to Motion to Admit Additional evidence According to the Rule 115 of the Procedure and Evidence, 7 December 2000; Prosecution’s Response to Motions By Vlatko Kupreskic, Zoran Kupreskic, Mirjan Kupreskic and Drago Josipovic for an Extension of Time to File A Reply in Relation to Motions to Admit Additional Evidence Pursuant to Rule 115, 7 December 2000.
808 - Reply to the Prosecution’s Response to the Motion By Zoran and Mirjan Kupreskic to Admit Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence (Confidential), 30 January 2001. Drago Josipovic joined in this reply. See Joinder of the Accused Drago Josipovic to Reply to the Prosecution Response to the Motion by Zoran and Mirjan Kupreskic to Admit Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence Dated January 2001(Confidential), 5 February 2001. The Prosecution opposed the filing of these replies on the basis that they were untimely. See Prosecution’s Motion Opposing the Filing of the Reply of the Appellants Zoran and Mirjan Kupreskic on 30 January 2001 and The Reply of the Appellant Drago Josipovic on 5 February 2001 (Confidential), 12 February 2001. However, the Appeals Chamber accepted the replies in its decision on the motions to admit additional evidence. See Decision on the Motions of Appellants Vlatko Kupreskic, Drago Josipovic, Zoran Kupreskic and Mirjan Kupreskic to Admit Additional Evidence, 26 February 2001.
809 - Appeal Transcript, 25. This request was repeated in Vlatko Kupreskic’s Confidential Reply to the Prosecution’s Response to Motion by Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 18 December 2000.
810 - Prosecution’s Response to Request for Oral Hearing of Appellants’ Motions to Admit Additional Evidence on Appeal, 19 January 2001.
811 - Reply on Behalf of Vlatko Kupreskic to Prosecution’s Response to Request for Oral Hearing of Appellant’s Motions to Admit Additional Evidence on Appeal, 24 January 2001.
812 - Decision on the Motions of Appellants Vlatko Kupreskic, Drago Josipovic, Zoran Kupreskic, Mirjan Kupreskic to Admit Additional Evidence (Confidential), 26 February 2001. A redacted version of the decision was issued on 30 May 2001.
813 - The date for the oral hearing was determined in an order of the Appeals Chamber dated 14 March 2001. See Scheduling Order, 14 March 2001. Subsequently, the Prosecution attempted to re-schedule the oral hearing. See Prosecution’s Urgent Motion for a Re-Scheduling of the Date of the Oral Hearing and Variation of the Order for Protection of Certain Witnesses (Confidential), 19 March 2001. Counsel for Vlatko Kupreskic responded. See Urgent Response on Behalf of Vlatko Kupreskic to Prosecution’s Urgent Motion for a Re-Scheduling of the Date of Oral Hearing and Variation of Order for Protection of Certain Witnesses (Confidential), 23 March 2001. The Appeals Chamber denied the Prosecution motion and postponed the issue of whether the identity of the additional witnesses of Vlatko Kupreskic should be revealed. See Order of Clarification, 23 March 2001. In its decision of 11 April 2001, the Appeals Chamber dismissed the request to have the identities of the witnesses revealed. The Prosecution then renewed its request. See Prosecution’s Urgent Motion for Variation of Order for Protection of Certain Witnesses (Confidential, Ex Parte), 20 April 2001. Vlatko Kupreskic responded. See Reply to the Prosecution’s Urgent Motion for the Variation of Order for the Protection of Certain Witnesses (Confidential, Ex Parte) 25 April 2001. The Appeals Chamber allowed the Prosecution motion to the extent that the identity of the protected witnesses could be revealed only to persons carrying out investigative work on behalf of the Prosecution. See Order on Prosecution’s Urgent Motion for Variation of Order For Protection of Certain Witnesses (Confidential, Ex Parte), 26 April 2001.
814 - Decision on the Admission of Additional Evidence Following Hearing of 30 March 2001 (Confidential), 11 April 2001. A public version of the decision was issued on 30 May 2001.
815 - This recording was conditionally admitted in the Appeals Chamber decision of 26 February 2001. Zoran and Mirjan Kupreskic requested, and were granted, an extension of time in which to comply with the condition. See Motion of the Counsels of Zoran and Mirjan Kupreskic Considering the Request for the Extention [sic] of Time-Limit (Confidential), 9 March 2001; Prosecution’s Response to the Defence Motion Requesting an Extension of the Time-Limit (Confidential), 13 March 2001; Order on Application for Extension of Time, 16 March 2001. Zoran and Mirjan Kupreskic subsequently and jointly filed an additional motion in response to the decision. See Motion of the Counsel of Zorana I Mirjana Kupreskica With Which They Comply to the Order of the Appealing Chamber From 26.2.01 (Confidential), 21 March 2001.
816 - Decisions on the Motions of Drago Josipovic and Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94(B), 8 May 2001.
817 - Motion No. 5 of the Counsel of Zoran Kupreskic With Which He Proposes the Derivation of New Proofs According to the Rule 115 of the Rules and Proposal for the Insight in the ITCY [sic] Verdict in the Case Prosecutor v Dario Kordic and Mario Cerkez, and the Insight in the Verdict in the Case Prosecutor v Anto Furundzija Based on the Rule 94 B of the Book of Rules and Procedure (Confidential), 21 March 2001.
818 - Prosecution Response to “Motion No. 5 of the Counsel of Zoran Kupreskic with which he Proposes the Derivation of New Proofs According to the Rule 115 of the Rules and Proposal for the Insight in the ICTY Verdict in the Case Prosecutor v Dario Kordic and Mario Cerkez, and the Insight in the Verdict in the Case Prosecutor v Anto Furundzija Based on the Rule 94(B) of the Book of Rules and Procedure” (Confidential), 2 April 2001.
819 - Motion of the Counsel of Zoran Kupreskic with Which He Answers to the Motion of the Prosecutor from 2.4.01(Confidential), 9 April 2001.
820 - Proposal of Drago Josipovic for Derivation of Additional Proofs (Confidential, Ex Parte), 21 March 2001.
821 - Prosecution Response to “Proposal of Drago Josipovic For Derivation of Additional Proofs” (Confidential, Ex Parte), 2 April 2000.
822 - Confidential Second Motion Pursuant to Rule 115 For Admission of Additional Evidence on Appeal by the Appellant, Vlatko Kupreskic, 6 April 2001.
823 - Prosecution Response to “Confidential Second Motion Pursuant to Rule 115 for Admission of Additional Evidence on Appeal by the Appellant, Vlatko Kupreskic” (Confidential, Ex Parte), 12 April 2001.
824 - Ex Parte Confidential Reply to the ‘Prosecution Response to Confidential Second Motion Pursuant to Rule 115 for Admission of Additional Evidence on Appeal by the Appellant Vlatko Kupreskic’, 23 April 2001.
825 - Decision on the Motions of Drago Josipovic, Zoran Kupreskic and Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94(B), 8 May 2001.
826 - Decision on Motions to Admit Material relating to Witness AT into Evidence Pursuant to Rule 115 and to Call Additional Witnesses.
827 - Motion of the Counsel of Zoran Kupreskic with Which He Proposes the Derivation of Additional Proof Considering the Rule 115 of Procedure and Evidence (Confidential), 6 June 2001.
828 - Prosecution’s Response to “Motion of the Counsel of Zoran Kupreskic with Which He Proposes the Derivation of Additional Proof Considering the Rule 115 of Procedure and Evidence” (Confidential), 18 June 2001.
829 - Decision on Motion By Zoran Kupreskic for Admission of Additional Evidence, 28 June 2001.
830 - Prosecution Motion to Admit Evidence in Rebuttal to Additional Evidence Admitted Under Rule 115 (Confidential), 15 June 2001.
831 - Response by Drago Josipovic to Prosecution Motion to Admit Evidence in Rebuttal Filed 14 [sic] June 2001, 28 June 2001.
832 - Decision on Prosecution Motion to Admit Evidence in Rebuttal to Additional Evidence Admitted under Rule 115, 6 July 2001.
833 - Decision on the Motions of Zoran and Mirjan Kupreskic to Admit Additional Evidence, 17 July 2001.
834 - Motion of the Counsels of Zoran and Mirjan Kupreskic with Which They Propose the Derivation of New Proof Considering the Rule 115 of the Rules of Procedure and Evidence (Confidential), 26 June 2001; Motion of the Counsels of Zoran and Mirjan Kupreskic with Which They Propose the Acceptance of the New Proof, based on Rule 116 [sic] from the Rules and Procedure (Confidential), 6 July 2001.
835 - Joinder of the Accused Vladimir Santic to the Motion of Counsels of Zoran and Mirjan Kupreskic with which they Propose the Derivation of New Proof Considering the Rule 115 of the Rules and Procedure and Evidence Dated 26 June 2001, 29 June 2001.
836 - Decision on Motion by Zoran Kupreskic and Mirjan Kupreskic for Admission of Additional Evidence, 17 July 2001.
837 - Motion Pursuant to Rule 115 for Admission of Additional Evidence on Appeal by the Appellants, Zoran and Mirjan Kupreskic (Confidential), 6 July 2001.
838 - Motion of the Counsels of Zoran and Mirjan Kupreskic (Confidential, Ex Parte) , 6 November 2000.
839 - Prosecution’s Response to the Confidential “Motion of the Counsels of Zoran and Mirjan Kupreskic” (Confidential, Ex Parte), 14 November 2001. It also filed a motion for protective measures in relation to any material arising from Witness AT’s testimony in Kordic which was to be disclosed to the Defendant. See Prosecutor’s Application for Protective Measures (Confidential, Ex Parte), 9 November 2000.
840 - Order on (1) Motion of Zoran and Mirjan Kupreskic for Disclosure and (2) Prosecution Motion for Protective Measures (Confidential, Partly Ex Parte), 6 December 2000. The Prosecution subsequently sought, and was granted, an extension of time in which to comply with that part of the order of 6 December 2000 requiring the disclosure of the transcripts of Witness AT’s testimony in Kordic. See Prosecution’s Motion for an Extension of Time Within Which to Disclose Confidential Material (Confidential, Partly Ex Parte), 13 December 2000; Order on Prosecution’s Motion for an Extension of Time Within Which to Disclose Confidential Material (Confidential, Partly Ex Parte), 15 December 2000. The Prosecution also filed “Prosecution’s Motion for Clarification of Appeals Chamber’s Order for Protective Measures Dated 5 December 2000” (Confidential Ex Parte) on 13 December 2000.
841 - Decision on Disclosure of Confidential Material to Another Chamber Pursuant to Prosecution Request, 18 January 2001; Decision on Confidential Ex Parte Motion for Disclosure of Transcript and Statement of Protected Witness for Use in Appellate Proceedings, 18 January 2001.
842 - Petition of the Counsel of Drago Josipovic (Confidential, Ex Parte), 8 December 2000. The Prosecution responded to this motion and made an application for an extension of time simultaneously. See Prosecution Motion for Extension of Time to File Response and Prosecution’s Response to “Petition of the Counsel of Drago Josipovic” Filed on 8 December 2000’ (Confidential, Partly Ex Parte), 20 December 2000. The Appeals Chamber granted the Prosecution’s motion for an extension of time and recognised its response to Drago Josipovic’s petition. See Order on Prosecution Motion For An Extension of Time to File Response to Petition of Drago Josipovic, 11 January 2001. Counsel for Drago Josipovic filed an untimely response to the application of the Prosecution for an extension of time. See Response of the Counsel of Drago Josipovic for the Extention [sic] of Time Limit for Presentation of the Answer and the Answer of the Prosecution on the Demand of the Counsel of Drago Josipovic Submitted on 8.12.2000, 15 January 2001. The original petition was renewed by Drago Josipovic. See Petition of Drago Josipovic (Confidential, Ex Parte), 5 February 2001. A further petition was subsequently filed. See Request of the Appellant, Drago Josipovic, for the Submission of Transcripts of the Prosecutor’s Protected Witness Testimony (Confidential, Ex Parte), 12 February 2001. The Prosecution responded to these petitions. See Prosecution Response to “Petition of Drago Josipovic” Filed 5 February 2001 and Prosecution Response to Request of Drago Josipovic Filed 12 February 2001, 15 February 2001. The following motion was filed by Vlatko Kupreskic before Trial Chamber III. See Motion for Disclosure of Transcript and Statement of Protected Witness (Confidential, Ex Parte), 2 January 2001. Counsel for Zoran and Mirjan Kupreskic filed the following: Motion for Release to the Appeals Chamber of Witness Statement From the Trial of Prosecutor v Kordic and Cerkez (Confidential, Ex Parte), 23 March 2001.
843 - Prosecution’s Renewed Motion for Clarification of Appeals Chamber’s Order for Protective Measures Dated 5 December 2000 and Request for Release of Confidential Material (Confidential, Ex Parte), 29 January 2001.
844 - Request to the President Pursuant to Rule 75(D), 3 April 2001.
845 - Ordonnance du Président aux Fins De Communication de la Version Expurgée des Auditions et du Compte Rendu de la Déposition d’un Témoin Protégé (Confidential), 10 April 2001.
846 - Application by Drago Josipovic for Disclosure of Confidential Filing of Prosecution Closing Brief in Prosecutor v Kordic and Cerkez, 8 June 2001; Application by V. Santic For Disclosure of Confidential Filing of Prosecutor Closing Brief, 18 June 2001.
847 - Order of the President on the Defence Applications in the Case of the Prosecutor v Kupreskic et al. for Access to the Prosecutor’s Confidential Closing Brief in the Case of the Prosecutor v Kordic and Cerkez, 3 July 2001 (English version).
848 - Order of the President on the Motion by Vlatko Kupreskic’s Defence in the Case the Prosecutor v Kupreskic et al. for Disclosure of the Prosecutor’s Confidential Closing Brief in the Case the Prosecutor v Kordic and Cerkez, 30 July 2001 (English version).
849 - Motion to the President, on Behalf of Vlatko Kupreskic, for Disclosure of Transcript of Evidence of a Prosecution Witness in the Trial of Prosecutor v Kordic and Cerkez (Confidential), 20 June 2001.
850 - Order of the Presiding Judge to Disclose a Transcript from the Case the Prosecutor v Tihomir Blaskic to Vlatko Kupreskic in the Case the Prosecutor v Zoran Kupreskic et al., 12 July 2001 (English translation filed on 19 July 2001).
851 - Motion of the Appellant Vladimir Santic for the Admission of Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence (Confidential), 27 April 2001.
852 - Proposal of the Counsel of Zoran Kupreskic for the Derivation of New Proofs, Based on the Rule 115 of the Rules ans [sic] Procedure (Confidential), 1 May 2001; Motion of Mirjan Kupreskic for Additional Evidence (Confidential), 1 May 2001; Request of the Counsel of Drago Josipovic that the Interview and the Testimony of the Protected Witness AT Should be Regarded as the Additional Evidence on the Basis of Article 115 of Statute on Procedure and Evidence, May 1 2001; Confidential Third Motion Pursuant, to Rule 115, for Admission of Additional Evidence on Appeal by the Appellant, Vlatko Kupreskic, 1 May 2001. Zoran and Mirjan Kupreskic had previously filed a motion seeking the admission of the interviews into evidence. See Motion No. 4 for Admission of Additional Evidence Pursuant to Rule 115 of the Rules of Evidence and Procedure [sic] by Zoran and Mirjan Kupreskic, 28 February 2001.
853 - Proposal of Drago Josipovic for Derivation of Additional Proofs, 21 March 2001; Request of Drago Josipovic [title modified from original] (Confidential), 17 April 2001; Request of the Appellant Drago Josipovic (title modified from original( (Confidential), 23 April 2001; Request of Drago Josipovic that the Witness Asim Dzambazovic is Summoned and Interrogated According to Article 115 of Statute on Procedure and Evidence (Confidential), 1 May 2001.
854 - Prosecution Response to “Request of Drago Josipovic [title modified from original]”, (Confidential), 25 April 2001; Prosecution Response to “Motion of the Appellant Vladimir Santic for the Admission of Additional Evidence Pursuant to Rule 115 of Rules of Procedure and Evidence” (Confidential), 7 May 2001; Prosecution Response to “Request of Drago Josipovic [title modified from original]” (Confidential), 3 May 2001; Prosecution’s Response to “Request of Counsel of Drago Josipovic that the Interview and the Testimony of the Protected Witness AT Should be Regarded as Additional Evidence on the Basis of Article 115 of Statute on Procedure and Evidence” and Request “That the Witness-Expert Asim Dsambasovic is Summoned and Interrogated According to Article 115 of the Statute on Procedure and Evidence” (Confidential), 10 May 2001; Prosecution’s Consolidated Response to “Proposal of the Counsel of Zoran Kupreskic for the Derivation of New Proofs, Based on Rule 115 of the Rules of Procedure” and to “Motion of Mirjan Kupreskic for Additional Evidence” (Confidential), 11 May 2001; Prosecution Response to “Confidential Third Motion, Pursuant to Rule 115 for Admission of Additional Evidence on Appeal by the Appellant Vlatko Kupreskic” (Confidential), 11 May 2001; Prosecution’s Response to “Motion No. 4 of Appellants Zoran and Mirjan Kupreskic to Admit Additional Evidence Pursuant to Rule 115” (Confidential, Partly Ex Parte), 12 March 2001.
855 - Confidential Reply on Behalf of Vlatko Kupreskic to Prosecution Response to Confidential Third Rule 115 Motion, 15 May 2001.
856 - Consolidated Reply of Zoran and Mirjan Kupreskic to the Prosecution Response to Motions According Rule 115 (Confidential), 21 May 2001. An application for an extension of time for filing the reply on behalf of Zoran and Mirjan Kupreskic and an order of the Appeals Chamber granting the application preceded this filing. See Motion of the Counsel of Zoran and Mirjan Kupreskic for the Extention [sic] of Time-Limit, Based on the Rule 127 of the Rules, 14 May 2001 and Order on Motion for Extension of Time, 16 May 2001. Vladimir Santic’s reply was filed after the expiry of the deadline for filing replies, hence the Appeals Chamber disregarded this filing.
857 - Decision on Motions to Admit Material Relating to Witness AT Into Evidence Pursuant to Rule 115 and to Call Additional Witnesses (Confidential), 29 May 2001.
858 - The Motion of the Appellant Vladimir Santic for Leave to Appeal Against the Appeals Chamber’s Decision on Motions to Admit Materijal [sic] Relating to Witness AT into Evidence Pursuant to Rule 115 and To Call Additional Witnesses Dated 29 May 2001 (Confidential), 30 May 2001; Motion of Vladimir Šantic for Leave to Appeal Against the Decision From 29 May 2001 According to the Rule 73(D)(I) and Appelant [sic] Motion Dated 30 May 2001 (Confidential), 7 June 2001.
859 - Motion of Zoran and Mirjan Kupreskic for Leave to Appeal Against the Decision From 29 May 2001 According to the Rule 73(D)(i) And Appeal Against the Decision From 29 May 01 (Confidential), 5 June 2001.
860 - Prosecution Response to “Motion of Zoran and Mirjan Kupreskic for Leave to Appeal Against the Decision From 29 May 2001 According to the Rule 73(D)(i) And Appeal Against the Decision From 29 May 2001” (Confidential), 15 June 2001; Prosecution Response to Motion of Vladimir Santic Seeking Leave to Appeal the Decision of 29 May 2001 Rejecting the Additional Evidence of AT, 15 June 2001.
861 - Decision on Motions By Zoran Kupreskic, Mirjan Kupreskic and Vladimir Santic for Leave to Appeal The Decision of the Appeals Chamber Dated 29 May 2001, 18 June 2001, para. 7.
862 - Prior to the hearing, the Prosecution gave notice of the cross-examination and rebuttal evidence. See Prosecution Notice of Cross-Examination Material and Potential Evidence in Rebuttal for the Evidentiary Hearing on 17 & 18 May 2001 (Confidential), 8 May 2001.
863 - Scheduling Order, 12 April 2001; Scheduling Order, 11 May 2001.
864 - Prosecutor’s Motion for Protective Measures for Witnesses to be Called at Evidentiary Hearing on 17 and 18 May 2001 (Confidential), 15 May 2001; Confidential Motion on Behalf of Vlatko Kupreskic Regarding Requests for Witness Protection (Confidential), 14 May 2001.
865 - Transcript of Evidentiary Hearing, 17 May 2001, p. 180.
866 - Prosecution’s Evidence (92 Bis Statements) In Rebuttal of Additional Evidence of Vlatko Kupreskic and Supplementary Material For Use at Evidentiary Hearing on 17 and 18 May 2001, 11 May 2001; Prosecution’s Filing of Evidence of Ole Hortemo (Rule 92 Bis Statement) and Supplementary Filing of Six English Translations of Rule 92 Bis Declarations Previously Filed on 11 May 2001 (Confidential), 14 May 2001. Vlatko Kupreskic opposed these motions. See Appellant’s Response to “Prosecution’s Evidence (92 Bis Statements) in Rebuttal of Additional Evidence” (Confidential), 15 May 2001. The Prosecution subsequently withdrew one 92 (Bis) statement that it was seeking to have admitted: Prosecution’s Notice of Withdrawal of Abdullah Abdic’s Rule 92 Bis Statement Submitted on 11 May 2001 (Confidential), 22 May 2001.
867 - Vlatko Kupreskic filed information to assist the Appeal Chamber’s determination as to whether to admit the Prosecution’s Rule 92 bis statements: Motion Concerning New Information Relative to Prosecutor’s Rule 92 Bis Statements (Confidential), 31 May 2001.
868 - Decision on the Admission of the Prosecution’s Rule 92 Bis Statements and the Exhibits Tendered at Evidentiary Hearing (Confidential), 6 June 2001.
869 - Motion for Provisional Release of Zoran and Mirjan Kupreskic or Separation of Proceedings (Confidential, Ex Parte), 22 February 2001.
870 - Prosecution Response to Motion of Appellants Zoran and Mirjan Kupreskic for Provisional Release or Separation of Proceedings (Confidential, Ex Parte), 2 March 2001.
871 - Decision on Motion for the Provisional Release of Zoran and Mirjan Kupreskic or Separation of Proceedings, 24 April 2001.
872 - Motion for Provisional Release on Behalf of Vlatko Kupreskic, 31 May 2001.
873 - Prosecution’s Response to Motion for Provisional Release on Behalf of Vlatko Kupreskic, 11 June 2001.
874 - Decision on the Motion of Vlatko Kupreskic for Provisional Release, 29 June 2001.
875 - Request for Provisional Release, Several days, Accused Vladimira Santica also known as “Vlado”, filed on 23 August 2001.
876 - Prosecution Response to Motion Entitled “Request for Provisional Release, Several days, Accused Vladimira Santica also known as ‘Vlado’”, filed on 3 September 2001.
877 - Decision on the Request of Vladimir Santic for Provisional Release, 5 September 2001.
878 - Ordonnance du Président Portant Affectation de Juges à La Chambre d’Appel, 14 March 2000.
879 - Order Appointing a Pre-Appeal Judge, 16 May 2000.
880 - Order Appointing a Pre-Appeal Judge, 14 March 2001.
881 - Decision of the Registrar, 4 May 2001.