339. In determining the role of the accused, the Trial Chamber has kept at the forefront of its consideration the following:
(a) The presumption of innocence embodied in Article 21 of the Statute which provides that the accused should be presumed innocent until proved guilty. This means that the burden of proof is on the Prosecution and before the defendant may be convicted of any offence the Prosecution must convince the Trial Chamber (beyond any reasonable doubt) of the defendant’s guilt.
(b) The principle that the case against each accused must be considered separately . The fact that the accused have been tried together does not mean that their cases should not receive separate consideration. Accordingly the Trial Chamber has given separate consideration to the case of each accused.
(c) In cases where the Prosecution relies upon identification evidence, the Trial Chamber bears in mind the need to proceed with caution in connection with such evidence , particularly in cases where a witness obtained no more than a fleeting glance of a suspect. For instance, in the leading English case, the Court of Appeal pointed out the danger inherent in such evidence: i.e. that a witness can easily be mistaken about identification and that an honest but mistaken witness can be a convincing one.396
(d) All the accused are of good character and have called evidence to this effect . Due weight has been given in each case to this factor.
(e) The accused, Drago Josipovic, Vladimir Santic and Dragan Papic, did not give evidence. It is their right not to do so. As already noted the Statute encapsulates the presumption of innocence in Article 21(3). The Statute also provides that an accused shall not be compelled to testify against himself: Article 21(4)(g). Accordingly , no inference is to be drawn from the fact that these accused did not give evidence .
340. The Trial Chamber will now consider the case involving each accused.
A. Dragan Papic
1. Introduction
341. Although named fifth in the indictment, it will be convenient to deal with the case involving this accused first since he is charged only in Count 1. The Prosecution case against Dragan Papic is that he played an active role in the armed conflict in October 1992, and that thereafter he was an active participant on the Croatian side, that he made preparations for the conflict on 16 April 1993 and that he took part in that conflict. The Defence case is that the accused was non-partisan , and that he played no active part in either conflict.
2. Background
342. Dragan Papic is aged 32, having been born on 15 July 1967. A forester before the war, he lived with his family (including Ivo, his father) on the main road in Ahmici, not far from the junction of the road leading to Lower Ahmici. He is listed in the Register of the HVO Vitez Brigade as being a reservist between 8 April 1992 and 15 January 1996.397 He was described by Witness D as a “good neighbour” before the war,398 but another neighbour, Abdulah Ahmic, testified that during the war he “changed completely”.399
343. Abdulah Ahmic testified that during a conversation in 1991, Dragan Papic told him that he was studying German fascist literature, and that he supported the fascist method of destroying Jews and other nations; that he admired Hitler as a military leader who had organised the army and people well. Dragan Papic said that it was necessary to apply this among the Croats.400
344. Prior to 16 April 1993, Dragan Papic invited one of the refugees in Ahmici, Witness A, to his house for a chat and told him that he had been at the front as a sniper in the Blackshirts Unit. Dragan Papic reproached Witness A and his family for being in Ahmici as refugees.401
345. On the other hand, his younger brother, Goran, said that Dragan Papic was not a member of the HVO, and was not interested in politics. He was friendly with Muslims.402 This evidence was supported by that of Dragan Papic’s cousin, Pero Papic403 and Goran Males.404 Another witness said that he had not heard Dragan Papic express any negative attitude towards Muslims, who were willing to have their cars repaired by him, and that he went to Muslim funerals.405 Statements were also produced from a family friend and a Franciscan friar, a parish priest in Vitez . They speak of Dragan Papic as a friendly man with an easy-going nature, on good terms with his neighbours.406 Another witness who knew him said that he was a hard worker who joked a lot and was not violent.407
3. His Conduct During the Armed Conflict on 20 October 1992
346. Several witnesses gave evidence concerning the participation of Dragan Papic in the armed conflict in October 1992. Mehmed Ahmic gave evidence that Dragan Papic fired at him and his house with an automatic weapon. The witness owned a shop on the main road opposite the Papic house where he lived with his family above the shop: he and Ivo Papic had been close as the latter was his neighbour and plumber. On 20 October 1992 at 5.30 a.m., the witness awoke to an explosion . At 7.30 a.m., he and his wife opened the shutters of their house to be met with a burst of gunfire from the Papic house. The witness saw Dragan Papic open fire from the front right upper floor window of his house. Dragan Papic was wearing a black uniform and was using an automatic rifle.408 Firing then started from all sides and the roof was set on fire with tracer bullets . At about 4 p.m., there was a lull in the shooting and the witness escaped to his father’s house. To do so he crawled with a four-year-old child under his arm , following female relatives. Soldiers opened fire on him from the wood near the Papic house (about 150 metres from the witness’s house). Among the soldiers who were shooting at him he saw Dragan Papic, who was using an anti-aircraft machine gun.409 In cross-examination, it was pointed out that in his statement, the witness had said that it was the HVO who were firing the anti-aircraft guns at him, and not Dragan Papic. However, the witness stated that he could observe and crawl with his child at the same time. 410
347. The same day, after the shooting, when another prosecution witness, Fahrudin Ahmic, a neighbour of the Papic’s, was on his way to his house, he was stopped by Dragan Papic and another man and told that he had to ask Slavko Skoro for permission to return home. They were dressed in camouflage uniform and were standing near a bunker and a machine gun. 411 The next day Dragan Papic and the other man came to the witness’s house and asked “Why don’t you monkeys surrender?”412 Dragan Papic had a bomb fuse with him. He said to the witness that unless weapons were handed over they would be shelled.413
348. The Defence case is that Dragan Papic was not involved in the fighting that day. When the firing started, he fled with his family into the wood behind their house. From there he went to Rovna where he spent the day.
349. Four witnesses gave evidence about the events of that day concerning Dragan Papic:
(a) His brother, Goran, said that the family were awoken by gunfire and heard a voice from the mosque calling on the Croats to give themselves up, together with their weapons. He and his family fled from their house and hid in the wood behind the house and then went to Rovna. There was no anti-aircraft gun in the wood.414
(b) Dragan Papic’s cousin, Pero Papic, said that he saw Dragan Papic in the wood at about 5.30 a.m. with his wife and that Dragan Papic went to Rovna. When cross-examined about Mehmed Ahmic’s evidence about seeing Dragan Papic and others armed in the wood, the witness said that this was incorrect and that Dragan Papic only passed through the wood early on. Dragan Papic spent the whole day in Rovna . The witness spent most of the day in the woods and testified that nobody opened fire from the woods or shot at Mehmed Ahmic’s house.415
(c) Zdenko Rajic, a policeman from Vitez, was sent to Ahmici in command of a detachment of soldiers to guard the approaches to the barricade while other troops were attacking it. They went via an old railway line from the road to Rovna to the wood behind the Papic houses where they remained all day until 4 p.m. On their way to the wood from the railway line between 5 - 5.30 a.m., they met a group of women, children and elderly people together with Dragan Papic. They said that they were going to Donja Rovna. Dragan Papic said that he was to take over an M60 mortar to send signals if the BiH Army started to move. The witness also said that nobody shot from the wood and that no PAT anti-aircraft gun was located there.416
(d) Zvonimir Santic, a resident of Donja Rovna and commander of the village guard said that in Rovna at about 8 a.m., he saw Dragan Papic wearing a camouflage jacket and carrying an M60 mortar and bag. Dragan Papic said that he did not know what was happening but there appeared to be a conflict between the Muslims and Croats and Nenad Santic had given him orders to go to Niva (about 100 metres from the witness’s house).417 Dragan Papic remained at Niva until 4 p.m., when he called at the witness’s house and asked if he could leave the mortar and bag until Nenad Santic sent someone to pick them up.418
4. His Conduct in the Period Between the Armed Conflicts
350. Several prosecution witnesses gave evidence of Dragan Papic’s conduct in the period between the armed conflicts. In particular, they testified as to his role as a supporter of the Croat side and that he was a member of Croat forces in charge of a checkpoint:
(a) During this period Dragan Papic was seen in the village armed and in uniform and going to the Bungalow.419 He was seen in uniform carrying a sniper rifle with target sights and a strangulation device.420 Witness V saw him wearing a black uniform many times.421 Witness Z also saw him in a black uniform and on one occasion carrying a sniper rifle.422 Abdulah Ahmic saw him climbing into a truck carrying an anti-aircraft gun and firing the gun in the air.423
(b) Another witness saw a vehicle with an anti-aircraft machine gun in the driveway outside Dragan Papic’s house.424
(c) Shortly after the October conflict, Witness B was stopped at a checkpoint outside the village. Dragan Papic (who was armed with an M48 rifle) told him that he could not enter the village. Some days later Witness B went to Ahmici with Mario Cerkez (an HVO Commander): they came upon a checkpoint on the main road near the Papic house with a dug-out and machine gun. After a conversation with Mario Cerkez , Dragan Papic ordered the soldiers to remove all the obstacles.425 In the witness’s opinion, the checkpoint was under the command of Dragan Papic.
(d) A checkerboard flag was flown outside the Papic house.426
(e) Dragan Papic was seen with others carrying military crates from Mario Papic’s house.427
(f) Witness N testified that a man whom he was told was Dragan Papic, wearing a black uniform, threatened him at the Bajram Festival.428
351. Others saw Dragan Papic make specific preparations on 15 April 1993:
(a) Witness A saw Dragan Papic leaving in a red Lada car with his wife and mother from his house and returning alone about 40 minutes later without them.429 On 15 April 1993 Witness G overheard his parents saying that Dragan Papic ’s family were leaving and that vehicles were constantly coming and going from his house.430
(b) Abdulah Ahmic was on his way home at 10 p.m. when he heard Ivo Papic calling for Dragan. The witness noticed a large number of people at the Papic house but did not pay much attention because people would gather quite frequently at Dragan Papic’s house and sometimes there would be as many as 30 cars in the yard: friends of his would come to visit and he repaired their cars.431
352. On the other hand Goran Papic gave evidence that Dragan Papic’s work included the preservation of game; for this work he wore a green uniform and sometimes a camouflage jacket and carried an M48 rifle.432 Dragan Papic’s employment book was produced, showing him to have been in employment until 15 April 1993.433 Ivo Vidovic said that he saw Dragan Papic often in forestry uniform and a camouflage jacket , or a camouflage jacket and jeans.434 Goran Papic also said that Dragan Papic had a black uniform (given to him as a present ) which he wore so that he would not be stopped at checkpoints: he wore camouflage because everyone was doing it as it was the fashion.435 Dragan Papic had neither a rifle with a telescopic sight nor a sniper rifle.436 There was never a machine gun nor an AA-gun anywhere near the family home.437 A checkerboard flag was flown on the house on religious holidays – as on other houses .438
5. His Conduct During the Attack of 16 April 1993
353. The Prosecution case is that Dragan Papic was present in Ahmici on 16 April 1993 and was involved in the attack. When the shooting started Fahrudin Ahmic and his family fled towards Upper Ahmici. Their route took them across the main road near Dragan Papic’s house. The witness noticed two soldiers bending down next to Ivo Papic’s house and saw a “glimmer (sic) of the fire from a firearm coming from Dragan Papic’s window”.439 Shortly after, the witness was shot and wounded in the arm; he saw that the gunfire was coming from Mehmed Ahmic and Dragan Papic’s houses.440
354. Witness A saw a machine gun in front of Dragan Papic’s house at one corner facing the road.441 Witness Z heard gunfire coming from an anti-aircraft gun in a thicket owned by Dragan Papic and his father.442
355. Witness G testified as to Dragan Papic’s presence, armed and in uniform , in the vicinity of soldiers carrying out executions on 16 April 1993 in Ahmici , near the lower mosque. He knew Dragan Papic because they were neighbours; their parents were close and he saw Dragan Papic frequently. On the morning of 16 April the family fled their house and Witness G ran ahead of the rest. He came across three soldiers firing towards the village: he saw Dragan Papic in the doorway of the house of Husein Ahmic near the soldiers. Dragan Papic was leaning against the door frame and carrying a rifle and the witness (who knew him) was 100 per cent certain it was him. The witness tried to run, but was cut down by a burst of gunfire . His parents and sisters were running towards him His father asked a soldier to let them pass, but the soldier ordered another soldier to kill them: the order was repeated twice, two bursts of gunfire followed and his parents and one sister (aged 11) were killed. His younger sister (aged 5) miraculously survived.443 During the day Witness G remained motionless where he lay, but was able to look around. He saw Dragan Papic once or twice passing by wearing a camouflage uniform and a hat and in the company of soldiers.444
356. Captain Charles Stevens, then Regimental Sergeant-Major of the Cheshire Regiment, was in Ahmici some days after the massacre, and met a man who called himself “Dragan” and carried an AK47 rifle. The man indicated that he had killed 32 Muslims by drawing his hand across his throat. Captain Stevens subsequently identified Dragan Papic in court, stating that “When someone tells you they have killed 32 people, you don’t forget their face in a hurry”.445
357. The Defence case is that Dragan Papic was not involved in any fighting that day. Having taken the women of the family to Rovna early in the morning, he stayed to guard the bridge over the Lasva River where he remained for the next ten days . Accordingly, he was not in Ahmici during the day of 16 April. The following evidence was given in support of this case.
358. Goran Papic testified that the family again fled to the woods on being awoken by gunfire. Their father told Dragan to take his wife (who was pregnant at the time), mother and the other women to Rovna.446 Dragan Papic was seen in the woods by a neighbour who also saw him leaving and going in the direction of Rovna.447
359. Zvonimir Santic was on Radak bridge over the Lasva River between Ahmici and Rovna. He saw Dragan Papic with his wife, mother and sister. Dragan Papic asked the witness if he could put the family up. The witness already had two families in his house and so he put them with his brother, Anto Santic.448 Dragan Papic took them there and returned twenty minutes later and joined Dragan and Ivo Vidovic guarding the bridge on the left (i.e., Ahmici) bank. The witness , meanwhile, was on the other side guarding the bridge with three other men. Dragan Papic was dressed in a camouflage jacket and jeans and had an M48 rifle.449 Dragan Papic remained guarding the bridge for 7-10 days and then left.450
360. This evidence was supported by that of Ivo Vidovic who said that he was told by Nenad Santic to guard the bridge. He went to the bridge and ten minutes later, at 6.30–7 a.m., Dragan Papic arrived, coming from Donja Rovna and saying that he had taken his wife, mother and sister to a shelter there.451 The witness said that he and Dragan Papic kept guard all day: they had strict orders not to move away. Dragan Papic did not leave for ten days or so, when Nenad Santic allowed him to go home because his wife had had a baby.452 The witness said that he was one hundred per cent certain that Dragan Papic did not leave his position for the first eight days of the conflict.453
6. Dragan Papic’s Military Service: Records
361. A Mobilisation Report, an HVO Defence Department Report on Mobilisation in Vitez for the Period 16-28 April 1993, shows that 498 conscripts were mobilised. 454 The list includes all the accused except Vladimir Santic: none were on special duty for the elderly or disabled. However, there are no entries showing the date of mobilisation for the accused.
362. According to one witness, the document was produced for the purpose of distributing shares for wartime remuneration and service in the HVO.455 This was supported by the evidence of a policeman from Vitez, Zdenko Rajic, who said that the purpose was to boost the number of shares received by Croats compared with Muslims; thus it contained a number of women and elderly persons although some women did work in the non-combatant department of the HVO.456
363. In the Register of Members of 1992 Viteska Home Guard Regiment457, Dragan Papic’s time of service is shown as being from 8 April 1992 – 15 January 1996. His brother Goran disputed the correctness of this entry.458
364. In the List of Members of the 2nd Battalion of the Vitez Brigade of the HVO ,459 Dragan Papic is described as a courier, having enrolled on 23 June 1992.
7. Findings of the Trial Chamber
365. In the light of the records relating to the accused’s military service, it is difficult not to conclude that he was mobilised in the HVO during some of the time relevant to this indictment, although his precise role is not clear. Also, it is not disputed that he wore a uniform and carried a rifle in the village, although the Defence contends that the reason for doing so was connected with his work. The prosecution evidence indicates that he was active on the Croatian side; that he was seen firing an anti-aircraft gun and was active at a checkpoint. However , this evidence is an insufficient basis upon which to convict the accused on Count 1. What must be established is that he took an active part in either (or both) of the armed conflicts in October 1992 and April 1993.
366. In relation to the armed conflict on 20 October 1992, the Prosecution relies on one crucial witness, Mehmed Ahmic, who identified the accused as shooting from his house early that morning and firing an anti-aircraft machine gun in the afternoon. It has already been noted that there were flaws in this witness’s evidence , i.e. his claim to have been able to identify the accused, although he was crawling with his child at the time, and the fact that he did not mention this identification in his statement. In these circumstances the Trial Chamber is unable to accept Mr. Ahmic’s evidence. There being no other evidence that the accused participated in the armed conflict that day this part of the Prosecution case is not made out . 460
367. In relation to the attack on 16 April 1993, one witness, Witness G, gave direct evidence for the Prosecution concerning the accused’s involvement in the attack. If the Trial Chamber accepts this witness’s evidence, it would establish the accused’s presence among the attacking forces in the village. However, the Trial Chamber does not find that it can rely on this evidence. This is because the witness made no mention of the presence of Dragan Papic in any statement to the Office of the Prosecutor until his third witness statement, made only six months before the trial, although he did mention the accused, Dragan Papic, in his first statement to the authorities of Bosnia-Herzegovina.461 In cross-examination the witness testified that he had been afraid to do so.462 He was also very hesitant in his description of the accused’s uniform.463 Witness G was an honest witness who had been through a dreadful ordeal on 16 April 1993. However, he was under the most stressful conditions imaginable and there must be some doubt about the accuracy of his identification of Dragan Papic.
368. None of the remaining Prosecution evidence is sufficient to establish that Dragan Papic was an active participant in the conflict, i.e. the evidence to the effect that he was seen driving his wife and mother from his house on 15 April or that people and vehicles were gathered there that evening, or that gunfire was seen coming from his room on 16 April. As for the evidence of Captain Stevens , the Trial Chamber cannot be sure that the witness identified the correct man in court five years after the event. Therefore, the Trial Chamber finds that there is a reasonable doubt as to whether Dragan Papic participated in the conflict that day.
B. Zoran Kupreskic and Mirjan Kupreskic
1. Introduction
369. It is convenient to summarise the evidence concerning Zoran Kupreskic and Mirjan Kupreskic together since their cases are closely connected. These two accused are brothers. At all material times they lived with their families in adjoining houses in a cluster of houses referred to as Grabovi in the centre of the village between Upper and Lower Ahmici. The cluster also included the houses of their relatives Vlatko and Ivica Kupreskic and their families. The Prosecution case against them may be briefly set out here: (a) Zoran Kupreskic was an HVO Commander; (b) on 16 April 1993 they both took an active part in the assault on the Bosniac population of Ahmici. In particular, they took part in the murders of their neighbours, the family of Witness KL, of Suhret Ahmic and Meho Hrstanovic. They were also seen that same day in Ahmici, armed and dressed in camouflage uniforms.
370. Zoran Kupreskic is aged 41, having been born on 23 September 1958 in Vitez. He is married with three children. He is a former member of the League of Communists of the SFRY. He was an employee of the Slobodan Princip Seljo factory in Vitez, where he was in charge of maintenance of one of the units.464
371. Mirjan Kupreskic is 36, having been born on 21 October 1963; he is married with two children. He was employed as a mechanical technician until February 1992 in the Slobodan Princip Seljo factory and from August 1992 until 15 April 1993 he worked for his cousin Ivica, first in the Sutre store in Ahmici and then, ten days before the conflict, at the store in Vitez. In April 1994 when he was demobilised he returned to work for Sutre.465
2. Background
372. There is no dispute that these accused are of good character. Evidence to this effect was given by prosecution witnesses. They and their cousin Vlatko were described as growing up as fine, decent, well-behaved young men.466 A neighbour, Witness D, knew both brothers: she said that they were good neighbours and did nothing bad to the Muslims nor showed them hatred. However, she also said that when they started talking of “Herceg-Bosna” the old intimacy was gone.467 Witness S said that he had very good relations with Zoran with whom he socialised, and that Mirjan showed no signs of extremism.468 At the Muslim feast of Bajram, held in March of 1993, Zoran and Mirjan Kupreskic and their families celebrated at Fahrudin (“Fahran”) Ahmic's house.469
373. The Defence called evidence to similar effect. Zoran Kupreskic was a member of the SPS Cultural Association, a multi-ethnic folklore society which performed dances of all ethnicities and to all groups. Zoran Kupreskic resisted pressure to join a purely Croatian association. At the end of March 1993 the folklore group performed at the Muslim festival of Bajram; several days before the conflict in April, the group performed in Mosunj to celebrate the Catholic holiday of Easter .470
374. Mirjan Kupreskic said he was brought up with Muslims and was on good terms with them. Muslims were close friends to his parents, including some close neighbours : Witness KL was one, but there were misunderstandings about the boundary. Mirjan Kupreskic was also a member of the folklore society and was close friends with some members including Fahran Ahmic and other Muslims and Serbs.471
375. Much evidence was given of the activities of Zoran Kupreskic and Mirjan Kupre skic within this folklore or Cultural and Arts Society, in which they were described as leading figures.472 For instance , Zdravko Vrebac said that in 1993 the Society was half Muslim and half Croat with some Serbs. Zoran Kupreskic was the main choreographer; Mirjan Kupreskic saw to the music together with the witness and Fahrudin Ahmic. These four were the principals.473 The Society held frequent rehearsals and performed at weddings and other events in Vitez. In 1993 they performed for UNPROFOR.474 Rudo Vidovic, Director of the Telecom Centre for Central Bosnia, whose family home is in Ahmici and who grew up with Zoran Kupreskic, described him as having similar characteristics to the witness himself; a competitive spirit, upright, hardworking. The witness said that Mirjan Kupreskic was younger and had the same characteristics as Zoran Kupreskic.475 Zoran Kupreskic was a member of the League of Communists but was not active after the elections. They did not express extremist views.476 Zoran Kupreskic’s superior at work in the Princip factory, Ivan Tabara, said that Zoran Kupreskic as Head of Maintenance for machinery used for military production had 28 machine operators of mixed ethnicity under him: he had a correct attitude towards them and was responsible and regular in his attendance at work.477 Adil Fafulovic, a Muslim folk-dancer, a fellow member of the Society, gave evidence that Zoran Kupreskic and Mirjan Kupreskic did not differentiate on grounds of ethnicity and invited Muslims to join the Society.478 Veljko Cato, a Serb, and another member of the Society described Zoran and Mirjan Kupreskic as honest family men, interested in folklore, dancing and socialising .479
376. According to another witness, Zoran Kupreskic was apolitical and did not express extremist views: he gave priority to family and the cultural society with its Muslims , Croats and Serbs, all singing and dancing together. He was popular among Muslims and Serbs. Mirjan Kupreskic held similar views.480
3. Involvement of the Accused in the HVO Prior to 16 April 1993
377. Both Zoran and Mirjan Kupreskic have military experience, both having completed their military service in the JNA, in which Zoran became a reserve officer481 and in which Mirjan was trained as an infantry man.482 Both are listed in the Register of the HVO Vitez Brigade as being reservists between 8 April 1992 and 22 and 23 January 1996.483 It was disputed that the signature against Mirjan Kupreskic’s name was his.484 However, he does not dispute that prior to and after the war he was a reservist.485
378. According to Witness JJ, a friend and work colleague of Zoran Kupres kic, the latter was a member of the HVO prior to 16 April 1993. He was absent from work at times and went to the front line. The witness saw him in uniform and he did not try to conceal the fact. He was present at an HVO oath-taking ceremony at Vitez stadium. She witnessed the oath-taking ceremony briefly: Zoran Kupres kic was a participant and took the oath, wearing a military uniform. He went to the front line for some time in the period between January to March 1993. About a month before 16 April 1993, Zoran Kupreskic told her that he was an HVO Commander .486
379. Evidence was given by two other witnesses that Zoran Kupreskic was an HVO Commander in the Grabovi area:
(a) Witness B was a Bosniac and former JNA Captain who became Security Officer for the Territorial Defence in Vitez. After the first conflict in October 1992 he visited Ahmici in connection with the return to the village of the Bosniac population who had fled. On this visit the witness spoke to Nenad Santic (whom he described as in command of the HVO in the area from Vitez to Ahmici). Nenad Santic told the witness that Zoran Kupreskic was the Commander of one area. The witness and Santic went to Zoran Kupreskic’s house and spoke to him. Santic said that Zoran Kupre skic should provide security and should guarantee that there would be no problems concerning the return of the Bosniac population. Zoran Kupreskic promised that there would be no problems and said that he would personally take action to ensure that there would be none.487
(b) Abdulah Ahmic, a resident of Ahmici at the material time, said that he had learned that Zoran Kupreskic was the HVO Commander: he learned this because people went to Zoran Kupreskic’s house for negotiations concerning the return of the Muslims. He saw Zoran Kupreskic often, armed and in full gear: Zoran Kupre skic went to the front at Busovaca and was in charge of village watches. The witness said that there were 5 or 6 Croatian families in Graboviconsisting of 20-30 people .488
380. According to Witness Y, who was the organiser of Muslim night patrols in Ahmici, Zoran Kupreskic called a meeting in the school and asked Witness Y to stop the Muslim watches. When the witness suggested joint patrols, Zoran Kupres kic said that he had no orders from his command to accept. Zoran Kupreskic also said that he was taking up a new post and would not be responsible for the area.489
381. According to Witness S, in 1992 and 1993 he saw both Zoran and Mirjan Kupreskic in uniform, but Zoran wore his more often than Mirjan.490
382. Zoran Kupreskic denied that he was a Commander or was ever addressed as such: his role for a time was to assign the village guards.491 He had not participated in the HVO oath-taking parade in the stadium but had witnessed it as a member of the audience.492
383. According to Zoran Kupreskic, the Kupreskic’s started a watch in February 1992 . Dragan Vidovic had contacted him to see whether he would be in favour of a village guard. Zoran Kupreskic then went out every night on a two-hour shift. At first he wore civilian clothes: he was later given a uniform top which he then wore and he carried Ivica Kupreskic’s hunting carbine.493 After the conflict on 20 October it was decided to place the guards on a more formal footing and it was agreed on 20 or 21 October that Zoran Kupreskic should be in charge of this. Zoran Kupreskic compiled these lists until late January 1993 when Dragan Vidovic took over.
384. Mirjan Kupreskic said that in February or March 1992 Zoran asked him to join the village guard, which he did: he was one of about ten men. This guard duty continued until the first conflict. Mirjan Kupreskic did not have a rifle; he was given an old M48 rifle and two boxes of ammunition. He did not have a uniform, but sometimes used Zoran’s camouflage jacket.
385. According to Zoran Kupreskic, Witness Y’s evidence concerning a meeting was wrong as to the date. The meeting was in late January or early February 1993. He asked Witness Y not to maintain a checkpoint at the entrance to the village and not to patrol the main road. He said that Dragan Vidovic would be in charge from now on. Zoran Kupreskic had no written or oral order from anyone telling him not to accept a Muslim proposal since he was not subordinate to anyone.494
386. According to their evidence, Zoran and Mirjan Kupreskic took no active part in the armed conflict on 20 October 1992. Summarising their evidence, they said that shortly after the shooting started, they took their families to a shelter in Santici and then returned to the neighbourhood of their own houses to a feature which was referred to as “the Depression” where they felt safer and where they remained until the afternoon.495,496 Others in the Depression at the time gave evidence of the presence of the accused there.497 The Depression was a sizeable hollow in the ground, not far from the Kupreskic houses and next to the house of Niko and Mirko Sakic: it had always been a kind of shelter and was used as a gathering point for citizens in cases of emergency in the former Yugoslavia as well as a shelter from Serb air attacks.498 They were not armed.499
387. According to Zoran Kupreskic, he took part in negotiations to ease tensions after the conflict of 20 October 1992. He took notes on one occasion500 and signed an agreement501 on another because he was told to do so. He took part in a discussion about people returning to their houses but had no say in anything else.502
4. Their Role in the Events of 16 April 1993
388. The prosecution evidence against either accused concerning events on 16 April 1993 begins with the evidence of Witness V who testified that on 15 April at about 5 p.m., he saw a group of 10 soldiers and two civilians in front of Zoran Kupreskic’s house. The soldiers were in camouflage uniforms and carried weapons .503
389. The Prosecution case against these two accused arising from their roles in the events of 16 April relates to three separate allegations:
(a) their alleged participation in murder and arson at the house of Witness KL;
(b) their alleged participation in murder and arson at the house of Suhret Ahmic ; and
(c) their presence in Ahmici that day.
These matters will be considered separately.
(i) Their Alleged Participation in Murder and Arson at the House of Witness KL
390. Witness KL was an immediate neighbour of the Kupreskic’s in Grabovi (his house being nearest to that of Vlatko Kupreskic, but no distance from those of Mirjan and Zoran Kupreskic: he had known all three since their births). His evidence was that following the morning call to prayer there was an explosion. Zoran Kupreskic then appeared in Witness KL’s house at the door of the living room (with a rifle, his face blackened and in a black uniform). Zoran Kupreskic shot and killed Witness KL’s son (Naser). He then shot Witness KL’s daughter-in-law (Zehrudina) and her son (Elvis, aged six or seven). The witness testified that he had been standing in the doorway to the living room, but “lost control” and fell behind the couch on which Elvis had been sleeping. According to the witness, shots were then fired at him but he was not hit. The witness’s grandson (Sejad or ‘Sejo’ , aged 3 months) was also shot and killed. Mirjan Kupreskic came into the room immediately after his brother, poured liquid from a bottle and set a couch on fire .504 The men then left and Witness KL went into his bedroom. By this time, the house was on fire, the ceiling came down and eventually the witness made good his escape, running through the fire and sustaining burns to his hands and face as he did so.
391. Initially Witness KL hid in a hay-stack and woodpile near his house; finally he fled to Vrhovine, stopping on the way at his mother’s house. On 17 April 1993 he was admitted to a hospital in Zenica were he was treated for severe burns to his face and hands. He remained in the hospital until 1 May 1994.
392. In cross-examination, Witness KL stated that both he and his six children had good relations with the Kupreskic brothers. Medical, divorce, and employment records were put to him but he denied that he had problems with his eyesight or alcoholism .505 When asked why he did not tell his mother who the perpetrators were, the witness stated that he had not dared tell her, because she was an old woman (born in 1909) and could let it “slip out unintentionally , and then later on this could have cost me a lot”.506 He saw his granddaughter and his daughter-in-law in the hospital but did not discuss the events of 16 April 1993 with them. He said that he did tell another daughter , Witness EE.507
393. In some of his previous statements such as that made to Witness HH (a United Nations investigator), Witness KL said he was in the other room during the attack .508 When confronted with such discrepancies he maintained that these were due to mistakes. In re-examination, Witness KL said that he was 100 per cent sure that Zoran and Mirjan Kupreskic were responsible for the killings.
394. It may be noted that at first the witness did not identify Zoran and Mirjan Kupreskic as the killers and did not do so until February 1994. However, according to the evidence of Witness EE, when she saw him in hospital in Zenica he told her that Zoran and Mirjan Kupreskic did the killing.509
395. It has not been disputed that these killings took place. On 6 May 1993 Payam Akhavan of the United Nations Centre for Human Rights and EEC Ambassadors visited the house and found the four bodies; two adults, an infant and a child.510 Forensic examination of the house in July 1998 by a Dutch Crime Scene Investigator and subsequent forensic analysis showed that 20 cartridge cases and an anti-aircraft projectile were recovered, together with the bones of a child under some bed springs at the place where Witness KL described Elvis's bed.511 No traces of inflammable liquids or other propellants were found but the fact that they were not found does not mean that they were not used.
396. On 7 May 1993 Witness KL spoke to Witness HH, an Officer of the United Nations Centre for Human Rights and told him that he knew those responsible: he said that they were his neighbours from the first house down the road. He also said that he was in the room and his family were killed in an adjacent room.512
397. The difficulty concerning the credibility of this witness’s evidence is that it was not until ten months after the incident that he firmly identified Zoran and Mirjan Kupreskic as the perpetrators of the massacre of his family. Despite the horror of what had happened and his supposed knowledge of those responsible, he did not divulge the fact when interviewed on 18 and 19 April for a local television station or (more significantly) when interviewed by investigators on 22 April 1993 , when he said that he did not recognise the perpetrators. On 1 October 1998, when interviewed by an investigating judge, the witness said only that the figures resembled Zoran and Mirjan Kupreskic. His explanation for these omissions is that he dared not identify the killers because of the wartime situation. However, the investigators and the investigating judge were Bosniacs and it is difficult to see why he should feel that identifying the perpetrators to them would have put him at risk.
398. It must also be noted that there is a further major discrepancy between his earlier accounts and those he gave subsequently. Initially he said he was in his bedroom when the killings took place whereas later he said that he was in the living room.
399. A possible explanation for the omissions and discrepancies may be that after conversations with others (notably his granddaughter), he had convinced himself that this is what he saw. He did not appear to the Trial Chamber to be an untruthful witness or one who had set out to lie deliberately; however he may have been mistaken .
(ii) Their Alleged Participation in Murder and Arson at the House of Suhret Ahmic.
400. It is alleged that Zoran and Mirjan Kupreskic participated in the murders of Suhret Ahmic and Meho Hrstanovic and the arson of Suhret Ahmic’s house. Evidence concerning this was given by Witness H, who lived with her father Suhret and her family in a house adjacent to that of Witness KL who is her grandfather. Her evidence was as follows. She knew Zoran Kupreskic, Mirjan Kupreskic and Vlatko Kupreskic (the former two she saw practically every day and she played with Vlatko Kupreskic’s daughter). On 16 April 1993, she was awoken by gunfire which shattered the glass in her bedroom. The family took refuge in a shelter constructed next to the garage. A grenade was thrown into the house and her father was told to open the door. When he went outside he was shot and killed. Their neighbour, Meho Hrstanovic, was killed in a burst of gunfire at their front door.513 Witness H left the shelter when the trapdoor was lifted. She was confronted by Zoran Kupreskic whom she recognised immediately (he was one metre away and she also recognised his voice): he told her that he had orders to kill everyone. Mirjan Kupreskic was in the hallway and the witness saw him climbing the stairs to the top floor. Zoran Kupreskic asked “What are we going to do with them, shall we kill them?” Mirjan Kupreskic said that he did not know. Soldiers then set fire to the house and the family left.514 Zoran Kupreskic had black polish in lines on his face, he was in uniform, carrying a rifle and had a rocket launcher on his back. Mirjan Kupreskic was wearing a uniform with a line on each cheek and forehead. He was one metre from her and she had no difficulty identifying him. He too had a rifle and a rocket launcher. She looked at Mirjan Kupreskic and he looked at her and she could see his face clearly. She was positive that it was him.
401. In cross-examination, Witness H said that she was one thousand per cent sure that she had seen Zoran Kupreskic. She saw him for a couple of seconds and although the lights were not on, visibility was good since it was morning.515
402. She was cross-examined about a statement made to an investigating Judge on 17 December 1993.516 Discrepancies between this statement and her evidence were pointed out. The statement said that her father had a rifle, that she saw him killed with a burst of gunfire, and that Zoran and Mirjan Kupreskic were setting fire to the upper floor.517 The witness, however, denied meeting the investigating Judge and denied that the signature on the statement was hers.518
403. This witness appeared confident and forceful. She was in no doubt at all about her identification of the three accused whom she knew well as they had been her neighbours all her life.519 Although the circumstances could not have been more stressful, she had a good opportunity to identify all three accused since they were in close proximity to her.
404. Another witness, referred to as Witness SA, was in Suhret Ahmic's house at the time of the attack. She did not give evidence at the trial, but her statements were admitted as Court Exhibits.520 In two statements in April 1993 (made in Zenica) she did not identify the perpetrators . In a third statement (in May 1993) she said that she did not recognise any of the soldiers. However, in December 1993, in a statement made to an Investigating Judge of the High Court in Zenica she said that she recognised Zoran, Mirjan, Ivica and Vlatko Kupreskic in full combat gear in her house. She repeated this in a statement to the Office of the Prosecutor in October 1994. In the view of the Trial Chamber , little or no weight can be placed upon the statements purporting to identify the accused. It was not until her fourth statement that the witness made any identifications . She did not give evidence and was, therefore, not subject to cross-examination about those discrepancies.
(iii) Other Evidence Relating to Their Presence in Ahmici on 16 April 1993
405. Witness C, a 13 year-old boy, fled barefoot from his house when it was attacked by soldiers and his brother was killed. He was rescued by Croatian soldiers and taken to the house of Jozo Alilovic (a Croatian friend and neighbour). The house is to the east of the village between the Catholic cemetery and the Bungalow . According to Witness C, at 11 a.m. or 12 noon Zoran and Mirjan Kupreskic called at the house with others. They were dressed in camouflage uniforms with green straps on their shoulders and weapons (they did not have paint on their faces). They stayed for about an hour.521
406. Both Zoran and Mirjan Kupreskic are listed in the HVO Mobilisation Report,522 as being mobilised between 16 and 28 April 1993, although there is no indication of the precise date.
407. Witness JJ gave evidence that she had a number of meetings in Vitez with Zoran Kupreskic and that during the course of one of the meetings, Zoran Kupre skic said that the Jokers had been firing at fleeing civilians in Ahmici on 16 April , that one of them had raised his gun and threatened Zoran Kupreskic that unless he also shot at the civilians he himself would be shot. As a result, Zoran Kupre skic testified that in order to save himself he had shot into the air.523
408. The accused deny that they participated in the crimes alleged, were in the places alleged or took any active part in the conflict at all.
409. On 15 April 1993 they were at work. Zoran Kupreskic testified that he was at work until 2 p.m., and then went into Vitez for a coffee with Senad Topoljak and Dragan Grebenar. On his way home things were normal. Just before dusk his uncle, Ivica, brought his wife from Split. Zoran Kupreskic and his wife went to Ivica’s house that evening after 8 p.m., and stayed for half an hour. Ivica spoke about the barricades which he had come across and the incident in Zenica involving Totic (an HVO officer who was killed). Zoran Kupreskic then went home and to bed about midnight.524 When cross-examined about the evidence of Witness V, Zoran Kupreskic said he saw nothing of what Witness V claimed to have seen outside Zoran Kupreskic’s house; nor did anyone else mention it. None of the Kupreskics left the village that night.525
410. Mirjan Kupreskic said that he left work in the Sutre shop in Vitez at 5 p.m., and went to a coffee shop before returning home where he found that his son was ill with a temperature. He, too, then went to Ivica’s house, returning home at 11 p.m.526 His evidence about his whereabouts in Vitez was supported by the evidence of a number of witnesses .527
411. Witnesses also gave evidence concerning the gathering at Ivica Kupreskic’s house, where friends and relatives of Mrs. Ankica Kupreskic had called to welcome her home.528 The guests included Zoran and Mirjan Kupreskic and their wives, Vlatko Kupreskic’s wife and Mirko Sakic.529 According to Gordana Cuic and Witness DC/1,2 they talked of “normal things”.530 According to Ivica Kupreskic, they talked about the journey from Split and the Totic case.531 The guests left at about midnight.532 Gordana Cuic said that she and Zoran Kupreskic had left earlier and gone to his house where her mother was: she stayed late, watching a music video-tape and talking of lots of things, not of war or of conflict.533 She said that if Zoran Kupreskic had known that the conflict would break out the next day, he would have told her.534
412. Zoran Kupreskic’s account of the events of 16 April was as follows:
(a) He was awoken by a ring at the doorbell while it was still dark. He opened the front door to find Dragan Vidovic who told him that there was a possibility of an attack by Mujahedin and that they should flee with their families.
(b) Zoran Kupreskic told his wife to get the children ready; he then went to rouse his brother and parents (he had put on a pair of jeans and a military top). He then returned to his house. He collected his family and with his parents and brother (with his mother in law in a wheelbarrow) went off towards Santici and the shelter at the Vrebac house. He had Ivica’s hunting carbine. There was no shooting at the time.535 Some locals (Croats ) were at Niko Sakic’s house, including Milutin Vidovic who said that Zoran Kupre skic’s children would be safe at his house. Zoran Kupreskic took his family to Milutin Vidovic’s house.536
(c) When he and his family and parents were going to Milutin Vidovic’s house, he saw five or six well-armed soldiers in black and camouflage uniforms around Anto Pudja’s house moving towards Niko Sakic’s house. They had painted faces and rifles and mortars, triangular insignia and some wore white belts. He concluded they were Croats who were coming to repel a possible attack; it was still dark and there was no shooting at the time.537
(d) Zoran Kupreskic and his brother (having put their families in shelters) returned to Niko Sakic’s’ house. On the way they met the Didaks. Zoran Kupreskic then took the Didaks to Milutin Vidovic’s house. He then returned towards Niko Sakic’s house . As he did so shooting started. It was now daybreak, between 5 and 6 a.m., and cloudy with drizzle. The shooting came from the direction of the Kupreskic houses and from the road by the cemetery.538
(e) Zoran Kupreskic ran back to Niko Sakic’s house. Niko said that the others were in the Depression so Zoran Kupreskic went there where he saw Dragan Vidovic, Mirko Sakic, his brother Mirjan, Dragan Samir and Drago Grgic. After about 15-20 minutes smoke could be seen rising which appeared to come from his brother’s house and then more smoke which seemed to come from Zoran Kupreskic’s house. (They later discovered that it was not coming from their houses). A short time later a shell fell nearby . The shooting was at its most intense for the first hour or two and then subsided . Mirko Sakic and Mirjan and Zoran Kupreskic went to see what had happened to their families. On the way, Anto Vidovic told them that Fahran Ahmic, their friend from the folklore group, had been killed. At 9 or 10 a.m., they reached the shelters .539
(f) When they went back towards the Depression, Zoran Kupreskic said that he heard screams and shooting in the area behind the Kupreskic houses or somewhere around the Sutre warehouse. The brothers met Nikola Omazic near Mirko Sakic’s house. Nikola Omazic said that Mirjan Santic had been killed. The brothers went into the Depression. The shooting had subsided. Mirjan Santic’s body was brought down on a ladder and the brothers helped to take the body to a shed at Niko Sakic’s house . Mirjan Santic was wearing a camouflage uniform with a white belt, the insignia of the Military Police and a light blue ribbon. This all happened sometime before 11 a.m.540
(g) They then returned to the Depression. As they were coming back they could see smoke rising from Muslim parts of the village: “you could gain the impression that the Muslims had been driven out of there”.541 There was shooting and the sound of UNPROFOR tanks. Later Ivica Rajic told the brothers that it was not their houses but those of Muslim neighbours which were burning. Ivica said that he had seen 10 soldiers at the Kupreskic brother’s house who identified themselves as Jokers. In the afternoon the brothers went to Zume again. Sporadic fire continued until nightfall. There was then intense fire and a loud explosion: the minaret was destroyed. This was about 7.30 or 8 p.m. They spent the night in their uncle’s stables.542
(h) Zoran and Mirjan Kupreskic never went to Jozo Alilovic’s house. They remained in the Depression all day in order to protect the shelter. Zoran Kupreskic carried Ivica’s rifle the whole time. They did not know who was attacking whom or who would win.543
(i) When cross-examined by the Prosecution, Zoran Kupreskic denied that he had anything to do with the crimes on 16 April or that anybody with him had taken part in them .544 He did not have time to call on Muslim neighbours. He did not pass Witness KL’s or any other Muslim house. He did not take the car. The car was a small Fiat which was in the garage of Branko Livancic.545 They stayed in the Depression because they were 50-100 metres from the shelter in which their women and children were, so they could defend it.546
(j) When asked about the evidence of Witness KL and Witness H, Zoran Kupreskic said that Witness H could not have seen him or his brother because they were not there ,547 nor were they at Witness KL’s house. He had normal relations with Witness KL and would greet him each day. He knew Nazir Ahmic. He never went to Witness KL’s house as an adult, although he had been there as a child.548 When examined by the Trial Chamber, Zoran Kupreskic said that he did not know Witness H: she was a child at the time and it was not customary to say hello to children when passing them.549
(k) When cross-examined about the statement of Witness JJ, Zoran Kupreskic said that she was wrong when she said that he had been threatened by Jokers and pretended to shoot at civilians.
413. Mirjan Kupreskic’s account of the events of 16 April was as follows:
(a) He was awoken before 5 a.m. by his brother Zoran, who told him that an attack from Barin Gaj was expected.550 He roused his family. His mother-in-law suffered back-pain and his son Marko was ill. As a result, Mirjan Kupreskic informed nobody else of the news. The family set off for Zume, Mirjan Kupreskic taking his mother-in-law in a wheelbarrow. They met Zoran and their parents and all went together through the Depression.551 On the road near Anto Pudja’s house they passed some soldiers, commandos with white belts and holsters, some with painted faces and with several cases of ammunition . Mirjan Kupreskic concluded that they were Military Police: they had some type of insignia.552
(b) Mirjan Kupreskic left his family at the Vrebac shelter and returned to Niko Sakic’s house. When the shooting started, he was with others in front of the shelter at the back of the house and they ran into the Depression, at first to take shelter and later to observe what was going on:553 Zoran Kupreskic was not with them, but joined them later. Mirjan Kupreskic had his rifle; Dragan Vidovic and Zoran Kupreskic also had rifles. Zoran Kupreskic wore a camouflage jacket. Mirjan Kupreskic wore blue jeans and a long brown jacket and a green sweater. It was cold and there was drizzle or mist.554 There were six men in the Depression in all.555
(c) The shooting lasted 2-3 hours and it was very intense. They tried to get out along the path but a shell fell nearby. When they tried again bullets were being fired through the forest. There was smoke coming from their houses and a high pillar of smoke rising from the road towards the mosque. There were detonations and small arms fire.556 During the first lull Milutin Vidovic came to the Depression to see whether they had any information. Mirjan Kupreskic then went to see his family with others. On the way, Anto Vidovic told them that Fahrudin (Fahran) Ahmic had been killed. (Mirjan Kupreskic, Fahrudin and Zdravko Vrebac had been inseparable friends).557
(d) On the way back from the shelter, Zoran said that he had been told that other persons had been killed. They heard that there were other casualties by the road near Fahran’s house. Mirjan Kupreskic went with Mirko to the Sakic house briefly and then returned to the Depression. Nikola Omazic told them that Mirjan Santic had been killed. Ivica Kupreskic and Nikola Omazic put Mirjan Santic’s body on a ladder and carried the body to Nikola Sakic’s garage: Mirjan Santic wore a camouflage uniform, with an HVO Military Police insignia on his shoulder and a light blue ribbon .558
(e) UNPROFOR armoured personnel carriers (APCs) went towards Gornji Ahmici and the gunfire stopped. After the APCs left, gunfire started again immediately. About 4-5 p.m., there was another lull and then firing resumed again and stopped only after nightfall. Towards the evening the most intensive fire was from around the mosque. That night some slept in the stable and others in the gulley.559
(f) Over the course of 16 April, they heard that houses were on fire, including all those around the Kupreskic houses. During their visits to their families in Zume they saw houses burning and realised that Muslims had perished.560
(g) When cross-examined by the Prosecution, Mirjan Kupreskic said that the Vrebac shelter was closest: it was 10-15 minutes away. He did not use the car. Asked why they remained in the Depression the witness said that they were hiding in the Depression; they were close to the shelters where their families were and could keep an eye on the path.561 Mirjan Kupreskic said that he did not doubt that what Witness H said had happened did happen but that it had nothing to do with him; he was not there, nor was his brother with him in that house. He had not been in Witness KL’s house.562
414. The accused called witnesses to support their accounts of their journey to the shelter and arrival there.563 They also called witnesses to support their account of spending the day in the Depression .564 In this connection Dragan Vidovic said that the men stayed in the Depression until it was dark when they went to Ivo Kupreskic’s stable.565 When daylight came they went back to the Depression to keep an eye on the path; he agreed (in response to a question put by the Prosecution) that they were guarding the line of approach in case of a Muslim attack.566 In re-examination Dragan Vidovic said that the men in the Depression thought that they could offer some protection to the nearby shelters where the families were.567 When examined by the Court, he said that there were patches of snow in the Depression : they did sit down but stood for most of the time when they were there.568
415. Zoran and Mirjan Kupreskic denied that they had been in the house of Jozo Alilovic on 16 April. Other evidence was given concerning this. Goran Papic denied that he was in Jozo’s house with Zoran and Mirjan Kupreskic in the late morning, as the prosecution witness Witness C, had alleged.569 Likewise, Jozo Alilovic himself denied that Zoran and Mirjan Kupreskic had ever come to his house that day.570
416. Anto Rajic, brother-in-law of Mirjan and Zoran Kupreskic, said that he had seen the broadcast of the interview on Sarajevo TV on 18 April 1993 with Witness KL from Zenica Hospital and that the end of the interview is missing from the recording produced by the Prosecution.571 The interviewer asked Witness KL twice if he recognised the killers. He said that he did not because their faces were painted.572 This evidence was supported by Mirko Safradin, a fellow member of the same anti-aircraft Defence Unit who said that he had witnessed the broadcast with Anto Rajic.573
417. Evidence of what happened to the accused after 16 April was given by Zoran Kupreskic. On 17 April, at 8 or 9 p.m., people fled from the shelters to Rovna . Zoran Kupreskic saw no bodies that day.574 On 18 April there was still shooting in Gornji Ahmici and Gornji Pirici. At about 9 a.m., the accused and his brother went to their houses. Nothing was wrong with Zoran Kupreskic’s house apart from two broken windows.575 Around 4–5 p.m., some military policemen appeared near the stable with some civilians : these men said that the accused had to go to the line at Gornji Pirici. Zoran Kupreskic, Mirjan Kupreskic, Dragan Vidovic, Mirko Sakic, Ivica Kupreskic and Dragan Samija all then left together.576 They passed Enver Sehic’s house and saw the body of Enver and a burnt child’s body in the house. There was a body on the balcony of another house and a further two bodies in between two houses. From the elevated ground they could see the entire village: “it was terrible … everything was burned down”.577 Witness KL’s house had burned down. At the line they were ordered to dig a trench . There was sporadic fire coming from Barin Gaj. They remained in the location for 2–3 days. They were then moved 500–600 metres to the right above Upper Ahmici.578
418. Mirjan Kupreskic said that on the evening of 17 April, he heard that his family had gone to Rovna: the next day he went to Rovna and saw his family at daybreak. He then went to his house to get his accordion. The house was in chaos : everything was pulled from drawers, doors were broken, window panes in the nursery were missing, bullet marks were on the walls, a fire was beginning to burn but died down, some things were missing and many empty cartridge cases were in front of the house.579 In cross-examination it emerged that there are no documents concerning this damage; Mirjan Kupreskic had not obtained any.580 It is the evidence of Mirjan Kupreskic that on 18 April 1993 the Military Police told them that they had to go to the defence lines in Pirici where they were ordered to dig trenches. Mirjan Kupreskic was then transferred to Upper Ahmici where he remained until demobilised at the end of the war in April 1994.581 (The Trial Chamber notes that Exhibit P353, page 30 shows an entry for Mirjan Kupre skic as being mobilised from 8 April 1992 to 22 January 1996. Mirjan Kupreskic said he did not sign this entry and does not know who did: this list was compiled for the allocation of shares).582
419. Zoran Kupreskic testified that he remained on the frontline for three or four months and was then asked to become the Commander of that sector of the line. He refused but agreed to become Deputy Commander. He carried out administrative duties in the command post in Zume. He wrote daily reports for the battalion. In January or February 1994 he was transferred to the battalion command where he did administrative work.583 Zoran Kupreskic said he became a soldier on 18 April 1993 when taken away by the Military Police. He returned to work in May 1994.584 He went to live in Vitez. He did not return to Ahmici because he had been affected by events there. A terrible crime had been committed there, by Croat people. He , Zoran Kupreskic did not participate in it.585 When cross-examined by the Prosecution about the Vitez Brigade List,586 Zoran Kupreskic said that the signature on page 30 is not that of his brother , whereas the signature on page 75 is his. He signed it in 1996 in the municipal office. The dates of service were being stretched so that the value of shares each individual received would be as large as possible. Zoran Kupreskic did not know who put the date of 8 April 1992 in the entry but guessed it indicates participation in the village guards (although the guards had not started then). The entry “P” for “reserve” may reflect the fact that he was a reservist in 1992.587
420. The Defence called Liljana Sapina, a friend and colleague of Witness JJ and Zoran Kupreskic, to contradict the evidence given by Witness JJ. Liljana Sapina said that in the summer of 1997 Zoran Kupreskic asked her to try and locate Witness JJ to see if the latter would be willing to make a statement in his favour . Ms. Sapina did so and the parties met in her flat. Zoran Kupreskic asked Witness JJ to make a statement about his helping her during the war: she said she would , but was afraid to testify because of her children and her family. Subsequently , it was apparent that Witness JJ was reluctant to make a statement: she said that her phone was bugged and from what she said Liljana Sapina concluded that she was under pressure from the Muslim side to make a statement against Zoran Kupreskic.588
5. Findings of the Trial Chamber
421. The Trial Chamber bears in mind the undisputed evidence as to the character of these accused, their activities in the folklore society and their good relations with their Muslim neighbours and colleagues prior to the conflict. Nonetheless, the Trial Chamber is satisfied that both accused were active members of the HVO. In the case of Mirjan Kupreskic, this finding is based on the HVO Register and is also to be inferred from his activities on 16 April 1993 (dealt with below).
422. In the case of Zoran Kupreskic, the Trial Chamber finds that he was a local HVO Commander and that his activities were not limited to assigning village guard duties (as he alleged). The Trial Chamber accepts the evidence of Witness JJ on this topic and also finds that Zoran Kupreskic took part in the oath-taking ceremony and was present on duty on the front line as she alleged in her evidence. The Trial Chamber accepts the evidence of Witness B and Abdulah Ahmic in relation to the negotiations for the return of the Muslims after the conflict of 20 October and finds that Zoran Kupreskic’s role in these negotiations was more active than he himself admitted in evidence.589 Finally, the Trial Chamber notes that Zoran Kupreskic, as a reserve officer and in charge of a maintenance unit at work, was used to the exercise of authority.
423. In relation to the events of 15 April 1993, the Trial Chamber accepts that the accused may have been at work that day and may have gone to a gathering at Ivica Kupreskic’s house that evening. However, the Trial Chamber does not accept their evidence, and that of their witnesses, that they did not know of the planned attack on the village the next morning. Preparations were already under way for the attack : in the light of what happened the next day, the Trial Chamber is satisfied that these accused must have known that an attack was planned and were ready to play a part in it. In this connection the Trial Chamber accepts the evidence of Witness V that he saw a group of soldiers, armed and in camouflage uniform, in front of Zoran Kupreskic’s house in the early evening of 15 April 1993.
424. With regard to the allegations of participation in the conflict of 16 April 1993, upon which the prosecution case is based, the Trial Chamber deals, first, with the alleged participation of the accused in murder and arson at the house of Witness KL. This allegation depends on the evidence of Witness KL. The Trial Chamber has already analysed that witness’s evidence and found it wanting in credibility . The Trial Chamber found that the witness may have been mistaken in his identification of the accused as perpetrators of these crimes. Thus, there is no reliable evidence that the accused participated in the crimes at the house of Witness KL.
425. The Trial Chamber deals next with the allegation that the accused participated in the murders and arson at the house of Suhret Ahmic. This allegation depends principally upon the evidence of Witness H. The Trial Chamber has already analysed her evidence. The Trial Chamber takes into consideration the criticism of her credibility arising from: (a) the discrepancies between her statement and her evidence; and (b) her denial that the signature on the statement is hers. However, these criticisms are outweighed by the impression made by the witness upon the Trial Chamber while she was giving evidence. Her evidence concerning the identification of the accused was unshaken. The Trial Chamber is in no doubt that she was a truthful and accurate witness of events on 16 April. Her evidence might have been confirmed by the statements of Witness SA; however, the Trial Chamber places no reliance on this evidence.
426. Accordingly, the Trial Chamber finds that Zoran and Mirjan Kupreskic, armed , in uniform and with polish on their faces, were in the house of Suhret Ahmic immediately after he and Meho Hrstanovic were shot and immediately before the house was set on fire. The Trial Chamber concludes from this evidence that the two accused were participants in the attack on the house as part of the group of soldiers who carried it out.
427. Turning to the evidence of Witness C that the accused were in the house of Jozo Alilovic at about midday and that they were armed and in uniform, the Trial Chamber, having heard the evidence of Jozo Alilovic, is not satisfied as to the accuracy of Witness C’s identification of the accused, given the stressful conditions under which it was made and the appalling ordeal to which the young Witness C had been subjected.
428. Finally, the Trial Chamber accepts the evidence of Witness JJ that Zoran Kupreskic admitted to her that the Jokers had been firing on fleeing civilians and that under threats, he himself had fired into the air. Although Zoran Kupreskic denied making this admission and an attempt was made to undermine Witness JJ’s credibility by calling Liljana Sapina, the Trial Chamber is satisfied that she told the truth . She came to give evidence despite pressure being exerted to prevent her coming and went to great lengths in her evidence to acknowledge the considerable part which Zoran Kupreskic had played in assisting her and her family during the conflict. There was no reason for her to have lied about Zoran Kupreskic in her evidence and every reason for thinking that she told the truth. This is not to say that Zoran Kupreskic, himself, told the truth in his admission to Witness JJ. It was no more than a partial admission by someone who was troubled by the horror of what had transpired that day. However, it is an admission of some participation on the part of Zoran Kupreskic and, as such, serves to undermine his contention that he did not participate in the conflict.
429. It will be apparent from the foregoing that the Trial Chamber rejects the evidence of the accused and their witnesses to the effect that the accused took no part in the crimes alleged and were elsewhere when they took place. While it is true that they may have taken their families to the shelter, the evidence about their doing so and their whereabouts during the morning are rejected as untrue. In particular , the evidence that they spent almost the entire day standing around with others in the Depression is inherently not credible given the circumstances of the conflict taking place that day in Ahmici.
430. In summary, the Trial Chamber concludes that both accused participated in the attack on Ahmici on 16 April 1993 as soldiers in the HVO. It is reasonable to conclude that their part involved their providing local knowledge and their houses as bases for the attacking troops. In addition, they participated in the attack on at least one house. Of the two accused, Zoran Kupreskic, as the local HVO Commander, must be taken to have played a more leading role.
C. Vlatko Kupreskic
1. Introduction
431. The Prosecution case against this accused is that he was involved in the preparations for the attack on Ahmici. His house was used as a gathering point for the attackers and he participated in the attack on the 16 April 1993, in particular, in the shooting of members of the Pezer family. The Defence case is that he did not participate at all in the attack or shooting. On 16 April he was concerned only with the protection of his family.
2. Background
432. Vlatko Kupreskic is 41 years old, having been born on 1 January 1958. He is married with two children. He is the cousin of Zoran and Mirjan Kupreskic and co -owner of the Sutre shop on the road to Upper Ahmici in Grabovo. He lives on the road near the shop, and near the houses of Zoran and Mirjan Kupreskic.
433. The Prosecution evidence concerning these events was as follows:
(a) One day in October 1992 Witness T saw Vlatko Kupreskic and his wife and a third person unloading weapons from a Yugo car on the road in front of Vlatko Kupreskic’s house.590
(b) Vlatko Kupreskic was seen by Witness B at the Hotel Vitez (the headquarters of the HVO) three to five times between October 1992 and April 1993.
(c) Reports of the Travnik police administration of December 1992 and February 1993 describe Vlatko Kupreskic as “Operations Officer for the Prevention of Crimes of Particular State Interest”: his rank is shown as Inspector 1st Class.591
(d) When a neighbour made a plea for peace after the first conflict in Ahmici in October of 1992, Vlatko Kupreskic said that they (the Croats) had waited 45 years for their own State and now they had it.592
434. Vlatko Kupreskic, in his own defence, said:
(a) He has a congenital heart condition (for which he was operated on in 1966) and must not undergo stress. He was relieved of military service as one hundred per cent disabled.593 He produced his military identification card and certificates showing him to be unfit for military service594 and called evidence to this effect.595
(b) He was against ethnically-based parties, including the HDZ. He was not, in any way, politically active and was never a member of the HVO. He was on very good terms with his Muslim neighbours (including the Pezer family). He was never an HVO soldier. He produced a statement from the local HDZ to this effect596 and called witnesses to say that he was on good terms with Muslims and did not engage in political activity, wear a uniform or carry a gun.597 The Defence also produced the statements of 14 character witnesses (all Muslims or Serbs) who spoke of the absence of nationalist or ethnic prejudice on the part of Vlatko Kupreskic.598
(c) Vlatko Kupreskic said that he was not a police operations officer but was carrying out an inventory for the police, and the police chief had to assign him to a vacant post in order to be able to pay him. He was assigned to the Office of the Crime Prevention Service and assigned a desk where he would work with the commission in making inventories of basic supplies.599
4. His Role on 15 April 1993
435. According to Witness KL, Vlatko Kupreskic was among HVO soldiers, carrying rifles, on the main road between 11 a.m. and 12 noon on 15 April 1993.600
436. Witness B saw him at the Hotel Vitez on 15 April at around 2 or 3 p. m., with two or three men in uniform, standing in front of the entrance to the hotel . He was in civilian clothes.601
437. On 15 April between 5 and 6 p.m., a neighbour saw 20-30 soldiers on Vlatko Kupreskic's balcony; Vlatko Kupreskic himself was sitting outside the shop.602 Another witness saw a truck arrive with soldiers at dusk. Five or six soldiers got out in the vicinity of the house.603 Another witness also saw several soldiers in front of Vlatko Kupreskic 's house at dusk.604 Witness V's diary records that on 15 April 1993 before dark he learned that the Croats were concentrating around the Kupreskic houses.605
438. The Defence case was that on 15 April Vlatko Kupreskic was not in Vitez or Ahmici until the evening: he was accompanying his cousin, Ivica Kupreskic, on a trip to Split to collect the latter’s wife from the airport on her return from Germany .
439. According to the evidence of Ivica and Vlatko Kupreskic, they left Ahmici on 14 April and were stopped at numerous roadblocks on the way.606 Permits for the journey were produced.607 They arrived at Split at about 12 noon. While in Split they went to the market and bought jeans (for re-sale) in cash and filled the boot of the car with them: they then held a business meeting at a company called Kotex about buying salt, but concluded no contracts. At about 9 p.m., they met Mrs. Ankica Kupreskic at the airport. They spent the night at Baska Voda, one hour from Split with Radoslav Simovic. The next day (15 April) they set off for Ahmici. They got home at about 6.30 p.m. and unloaded the jeans at Vlatko Kupreskic’s house.608 Further supporting evidence about the journey was given by Witness DE,609 Radoslav Simovic610 and Mrs. Ljubica Kupreskic.611
440. Vlatko Kupreskic gave evidence about events that evening. He said that he unloaded the goods from the boot of the car and spent the evening preparing the goods for a buyer from Travnik to whom the goods were to be delivered on 16 April . There were no soldiers at his house or in front of it, or at the shop that evening . Everything was normal. He had nothing to do with the army: he did not prepare weapons or ammunition at his house as a staging post.612
441. Vlatko Kupreskic denied that he was outside the Hotel Vitez earlier that day , and denied going into the HVO Headquarters.613 He was not, on 15 April, with a group of soldiers in front of his shop nor with soldiers on the balcony of his house.614 There were lights on in his house (as alleged by Witnesses M and O) during the night : there were lights on the balconies and parking space for safety reasons.615
5. His Role on 16 April 1993
442. Two documents point to Vlatko Kupreskic’s having been mobilised on 16 April 1993:
(a) His name appears on the HVO Mobilisation Report,616 dated 30 April 1993, as being mobilised on a date between 16 and 28 April 1993. (His name does not appear on the reserve list. Additionally, he is listed neither for special duties nor as a medical corps driver);
(b) An HVO Certificate of 4 June 1996 was recovered from his briefcase on his arrest confirming that Vlatko Kupreskic was a member of the 92nd Viteska Home Guard Regiment between 16 April 1993 and January 1996. He is described as performing duties as “Assistant Commander for Health Matters”.617
443. Gunfire came from the vicinity of Vlatko Kupreskic’s house during the early part of the day. According to Esad Rizvanovic (a refugee in Ahmici, who was staying in a house close to the lower mosque) the first shots were in the direction of the mosque and the lower part of the village, coming from the Kupreskic houses including that of Vlatko Kupreskic.618
444. Witness E was another refugee whose family were staying in a house near the lower mosque. Shortly after 6.20 a.m., he was fleeing with his mother and sister along a path towards Upper Ahmici. They were forced to stop because of gunfire, some of which, according to Witness E, came from the direction of the houses, one being the house of Vlatko Kupreskic.619
445. Evidence was given that Vlatko Kupreskic was in the vicinity of Suhret Ahmic’s house shortly after Suhret was murdered. When Witness H ran with her family from the house, they were forced to turn back because they came to a clearing where they were in danger of being shot. When they returned to their house, the witness saw Vlatko Kupreskic (wearing a blue overcoat with something under it) in front of the garage of her house. This was at about 5.45 a.m.620 Her evidence was supported by the evidence of Witness KL who said that upon looking out of the window of his house after the murder of his family, he saw Vlatko Kupreskic leave the yard of Suhret’s house, cross his (Witness KL’s) garden and go towards Vlatko Kupreskic’s own house.621
446. Witness KL also testified that while he was hiding in a stack of hay in his barn later in the day, he saw five young men killed: the shots appeared to come from Vlatko Kupreskic’s house. Three Croat soldiers came out of Vlatko Kupreskic’s house, patted the bodies and returned towards the same house.622
447. There was evidence of the following activity during the day of the attack from Vlatko Kupreskic’s house:
(a) Witness N came under fire from in front of the store.623
(b) Witness V heard shooting coming from the direction of Vlatko Kupreskic's house.624 Witness W was in the vicinity of the house, hiding during the morning with his grievously wounded wife, when they were accosted by a group of soldiers who came from bushes to the right of Vlatko Kupreskic's house.625 Witness BB saw her neighbour Nadira fatally wounded by a shot which came from the house of Vlatko or Franjo Kupreskic.626
(c) Witness X was also hiding there: one of her daughters (aged 19) was killed and another wounded. She testified that about midday Vlatko Kupreskic's yard was full of soldiers. She heard voices calling for brandy and lunch: somebody said that everybody had been killed down there and that they had done a good job .627
448. A defence witness, Witness DE, was cross-examined about a statement made to a representative of the BiH army on 25 June 1993,628 where he stated that “it was said that the destruction of the Ahmici mosque was ordered by Nenad Santic with the support of Vlatko Kupreskic”. The witness said in evidence that that is what he heard, what people were saying, but nobody proved it.629 In re-examination, the witness said people from Ahmici were detained at Dubravica school and he took food to them . He asked them who destroyed the mosque and one replied masked soldiers. He then asked what Vlatko did: one said Vlatko took shelter; another said that he had not seen Vlatko but that all Croats are the same. After the war Vlatko denied destroying the mosque saying “my friend you know I would never do anything like that”,630 and he said that he was ready to do his part in the reconstruction.631
449. Finally, evidence was given of Vlatko Kupreskic’s alleged participation in an attack on the Pezer family which culminated in the killing of Fata Pezer and the wounding of Dzenana Pezer. Fata Pezer was the wife of Ismail Pezer and mother of Dzenana. They lived in a house on the opposite side of a small hill ( which then existed, but which has now been flattened) from the Kupreskic houses. On the morning of the attack, they were joined by Witness S and his wife and by a refugee, Witness CF and his family, who had been living nearby. At about 8 or 8.30 a.m., the whole group (consisting of about 15 people including four small children ) set off for the house of Nermin Kermo which was not far away in the direction of Upper Ahmici. Five witnesses from the group gave evidence: they were referred to as Witnesses P, Q, R, S and T. The journey involved going down a gully and climbing a hill opposite Vlatko Kupreskic’s house.632 The route was described by Witness Q. In cross-examination Witness Q was shown a video-recording made in April 1998 in which Witness CF is shown describing a different route.633 Witness Q commented that the route described by Witness CF was marshy and was not passable at the time.634 This evidence was corroborated by that of Witness S, who was also shown the video-recording and who stated that the route described by Witness CF was not the one taken. As the party climbed the hill, they heard shouting and swearing and came under fire from a group of soldiers standing in front of Vlatko Kupreskic's house. As a result of the shooting Fata was killed and D‘enana was wounded. The five witnesses all gave evidence concerning these incidents. The witnesses said that the soldiers were in front of Vlatko Kupre skic's house. Two witnesses, Q and S, said that there was a civilian with the soldiers. Witness Q identified the civilian as Vlatko Kupreskic. Vlatko Kupre skic was 50-60 metres away and the witness had him in his view for several moments ; he had known Vlatko Kupreskic all his life and said that he was 100 per cent sure it was him.635 This evidence as to distance was confirmed by the evidence of Howard Tucker, an Investigator with the Office of the Prosecutor, who measured the distance with range-finding binoculars and found it to be 53 metres.636
450. The Prosecution called Witness II in rebuttal on this topic. He said that he was crossing the meadow when he heard cries for help coming from the top of the hill where he found Fata, D‘enana and Ismail Pezer. Fata and Dzenana were lying on the ground. Fata showed no signs of life. The witness went to another part of the hill to observe. He said that there was shooting from the house of Vlatko Kupreskic. He saw five to six soldiers with painted faces and helmets running near Vlatko Kupreskic’s house: their rifles were pointed in the direction of the Pezer family and himself. He then picked up Dzenana, put her over his shoulder and carried her, using the hill as shelter, towards Kermo’s house. Two minutes elapsed between his hearing cries for help and his reaching Fata Pezer. When he reached her there were gunshots, coming primarily from Vlatko Kupreskic’s house. However, he noticed no civilians among the soldiers. It is his opinion that the Pezers were hit from Vlatko Kupreskic’s house.637
451. The Defence case is that Vlatko Kupreskic was not involved in the conflict and did not participate in any of the killing or wounding of civilians or the looting and burning of property. The Defence case is also that between 5.30 and 6 a.m., Vlatko Kupreskic was taking his family to Jozo Vrebac’s shelter in Santici where he remained with them until 10 a.m., when he set off to try and contact his father in the family home, ending up in Niko Sakic’s house where he remained until after midday.
452. Vlatko Kupreskic’s account in evidence of the events that day was as follows:
(a) At 5 a.m., the telephone rang; he answered and an unknown person said “Vlatko , what are you waiting for? Go to the shelter”. He did not take this seriously , but Ivica Kupreskic then rang and told him to go to the shelter: everyone had left. His wife told him someone had already called at 3 a.m. that morning. He left quickly with his family (wife, two children and mother): his father refused to go to the shelter. They went to Ivica Kupreskic’s house, found nobody there and went to Niko Sakic’s house where they met Sakic. They then went on towards Zume: when they were near the sportsground they heard heavy fire and detonations . They went to Jozo Vrebac’s shelter, arriving at about 6 a.m.638
(b) He stayed in the shelter until 10 a.m., when he left to go and see his father . He told his wife that he was going to help the wounded. When he got to Niko Sakic’s house the latter told him to come in. By this time there was continuous shooting and Niko Sakic said that he had seen HVO soldiers going towards Vlatko Kupreskic’s house. Vlatko Kupreskic remained in Sakic’s kitchen until the shooting died down at about 12.30 p.m., when he left for his own house.639
(c) As he approached his own house he saw a soldier, outside the house at the entrance , who challenged him. Vlatko Kupreskic said that he had come to get his father. The soldier took him into the house. There were approximately 7 or 8 soldiers in a room in the house. His father was sitting in a chair. The front door had been broken down, the house had been ransacked, merchandise thrown around and the flower pots spilled. The house had been looted. Vlatko Kupreskic was upset and angry but a soldier pointed to the house of Suhreta Ahmic (which was on fire) and said : “Is that what you want? …. Scram, come and get your father later”. Vlatko Kupre skic ran out and returned to Niko Sakic’s house. On the way he met Drago Grgic, another soldier in camouflage uniform, and Anto Vidovic. He then fled to the basement of Nikola Samija’s house where he remained until the shooting subsided again at 4 p.m., when he returned to Jozo Vrebac’s shelter. The soldiers he had seen had painted faces, most had camouflage uniforms, two had black uniforms and some had helmets: all had ribbons on the left shoulder and were well-armed. They were all unknown to him.640 In his evidence he commented that the soldiers had entered his house violently, perhaps because it was a good vantage point for viewing Ahmici. It was probably a very useful point for them strategically.641
(d) He stayed in Jozo Vrebac’s shelter until 6 p.m., when he went to collect his father, returning to the shelter at 7 p.m. There were then no soldiers inside or around the house. His father told him that soldiers had burst into the house and shot from the house and from around it. (Vlatko Kupreskic himself, in the morning , had seen shell casings). The father said he had helped Cazim Ahmic to assist his wife by providing a blanket and axe from which Cazim could make a stretcher. His father told him nothing about the Pezer’s predicament.642
(e) Vlatko Kupreskic denied killing anyone or taking property or setting property on fire. He did not participate in the killing or wounding of the Pezer family: he did not come home until about 1 p.m., on 16 April.643 He was not in Witness H’s yard at 6 a.m.644 He was not in Witness KL’s yard: he did not have a blue coat. He was not with soldiers shooting in front of his house or involved in the killing of Fata Pezer as alleged by Witness Q: he was in the shelter.645
(f) When cross-examined, Vlatko Kupreskic said he was wearing civilian clothes; a chocolate-coloured winter jacket and corduroy trousers.646 Prior to 16 April 1993 he did not have a rifle but had a pistol for self-defence and that no more than 10 bullets were ever fired from it.647 On 16 April at approximately 1 p.m., when he met Dragan Grgic, the latter gave him a small rifle (a hunting carbine) to give to Ivica Kupreskic: the weapon went off and Vlatko Kupreskic gave it back to Dragan Grgic.648
453. The evidence of the accused as to his clothing, the circumstances of their being woken and their journey to the shelter was supported by the evidence of his wife, Mrs. Ljubica Kupreskic649 and cousin Ivica Kupreskic.650
454. The evidence of the accused that he was present in the shelter from about 6 a.m. until 10 a.m. was supported by that of his wife Ljubica,651 Ivo Vidovic,652 Ljuba Vidovic653 and Gordana Cuic.654
455. Niko Sakic gave evidence in support of the accused’s account of events at his house. This witness was cross-examined about a statement which he made in January 1998 in which he said Vlatko Kupreskic appeared at his house at about 10 a.m., to help in the evacuation of the wounded, remained for three hours and then left. The witness said that he thought that Vlatko Kupreskic could provide medical assistance because, in the witness’s personal opinion he was unfit.655
456. Further evidence was given concerning conditions in the house of the accused on 16 April:
(a) Witness DE said that between 6.30 and 9 a.m., he tried to phone Vlatko Kupreskic but could not get through or there was no answer: at 9 a.m., somebody picked up the phone and, when the witness asked for Vlatko Kupreskic, brusquely said that Vlatko Kupreskic was not there and put the phone down.656
(b) According to Ljubica Kupreskic, Franjo (Vlatko’s father) had said that three camouflaged soldiers had come to the house, asking for money and stealing a synthesizer.657
(c) Witness DF said that he was waiting at his home for Vlatko Kupreskic to bring the jeans (as promised) but by 8 a.m., he had not done so and the witness phoned him. Vlatko Kupreskic’s father (Franjo) answered and said that Vlatko Kupre skic had escaped with his wife, mother and children to the shelter: there was a war going on. Shooting could be heard on the phone. Franjo Kupreskic died after the war but before he died he told the witness “that on 16 April masked members of the special police had entered the village and nobody could recognise them because they wore paint on their faces”.658
457. The Defence called a great deal of evidence to contradict the Prosecution evidence concerning the murder of Fata Pezer. Summarising that evidence, it is convenient , first, to deal with the evidence of Professor Wagenaar, Professor of Experimental Psychology, University of Leiden, who gave his expert opinion on the identification of Vlatko Kupreskic by Witness Q. The Professor said that the important aspect of the recognition by Witness Q was the distance over which the observation was carried out. He said that, based on his studies, at the distance of 40 metres the accuracy rate is 50 per cent, i.e., it is as likely that a person would make a mistake as that they would be correct. Therefore, the likelihood of a witness making a mistake at 60 metres is higher than 50 per cent.659 On the other hand, matters such as the length of the observation, the fact that the person identified was in a group, and the fact that Witness Q could not provide details of clothing are not relevant since this is a case of recognition.660
458. The Defence also called evidence to show that Fata Pezer was not shot on the slope opposite Vlatko Kupreskic’s house (as alleged by the Prosecution) but on the other side of the hill at a place from which the house could not be seen. They called four factual witnesses on this topic:
(a) Witness CF and Witness CE (a husband and wife respectively) were Muslim refugees from Prijedor living in the school in Ahmici. According to their evidence, on the morning of 16 April they heard shooting and went to the Pezer house and then accompanied the family on the journey to Nermin Kermo’s house. They said that they were in the wood when the shooting started and the people were hit.661 A video recording was played,662 showing Witness CF demonstrating the alleged route taken from the Pezer house across the meadow and giving a commentary which may be summarised as follows. They were fired upon from behind as they were in the wood. Witness CF was wounded in the neck and shoulder. Fata fell dead to his left and remained on the spot; the little girl (Dzenana) was picked up and the rest went on.663 Both witnesses were cross-examined. Witness CF was cross-examined about a statement he had made to defence counsel on 18 March 1998, the day that they were filming, in which he said that they started walking from the Pezer house across a meadow under a hill on the right side towards the forest (i.e. an account which supports the Prosecution case).664 The witness said in evidence that in fact the slope was to the left of the hill.665 He was also cross-examined about a statement made to an Office of the Prosecutor Investigator of 9 June 1998 ,666 in which he said that he was shot from behind when running away from the main road and the Sutre store.667 Witness CE was cross-examined about a statement she made to an Office of the Prosecutor Investigator in June 1998 in which she said that they hid for a while in a vegetable storage shelter. 668 She did not remember saying in the statement that the voice came from the Sutre shop or that somebody from the direction of the Sutre shop, or next to it, started shooting at them. She denied saying this.669
(b) In the light of these very serious discrepancies between their statements and their evidence, the Trial Chamber places no reliance on the evidence of these witnesses . In any event, the Trial Chamber prefers the evidence of the prosecution witnesses as to the route taken, in particular the evidence of Witness Q who knew the area well, as opposed to the two defence witnesses who had only been there for a few months.
(c) Witness CG lived near the lower mosque and said that on 16 April when the shooting began, he and his family left their house and went to an old house with a cellar 50 metres from their house. At about 8 a.m., the witness heard a scream and saw a line of people 150 metres away. He heard shouting and screaming . He saw people in the middle of the wood on a path on the side of the hill facing the witness. Gunfire was coming from all round and fragmentation bullets were hitting the trees. The shooting was coming from Hrasno. The weapons being used were not ordinary rifles, but weapons of a higher calibre. The witness left the house at about 1 p.m. and took the path to Nermin Kermo’s house. Just below the wood he came across Fata’s body next to the path: it was in the same place as he had seen the group of people.670
(d) Stipan Vidovic said that 10-12 days after the conflict, he found the body of Fata Pezer in the woods about 100-150 meters behind her house. It is not possible from that place to see Vlatko Kupreskic’s house or yard because it is in a wood and there is a hill in between. The body had originally been found by two other men but they did not recognise Fata and told the witness. He could not tell if the body had been displaced before he discovered it. He ensured that the Red Cross were informed and they removed the body.671
459. The Defence called a Land Surveyor, Mr. Kesic, to show that the place where Stipan Vidovic found the body of Fata Pezer is in the same area as the place where Witness F said that he saw Fata Pezer’s body on 17 April. Vlatko Kupreskic’s house cannot be seen from either of these places as it lies on the other side of the hill.672
460. With regard to the evidence regarding the finding of the body of Fata Pezer , the Trial Chamber notes that the position where the body was found cannot establish where the shooting occurred because of the possibility of the body having been moved after the shooting.
461. The Defence next called two witnesses from Zagreb to give evidence concerning the injuries to Dzenana Pezer and Witness CF and the way in which those injuries were inflicted, namely Professor Skavic, Professor of Forensic Medicine and Mr. Catipovic, a Ballistics Expert at the Ministry of the Interior.673 Their evidence may be summarised as follows:
(a) the injuries to Dzenana Pezer were wounds to the right leg above and below the knee and included a fracture of the shin and the intrusion of alien metal bodies The injury to Dzenana Pezer’s shin was due to a bullet or shrapnel; the explosion was on the right side and the projectile came from the right.674 Witness CF sustained injuries to the right side of his neck and back; in fact this was a single injury, starting with a groove to the right side of the neck, the projectile then entering the right shoulder and exiting above the right shoulder blade. This wound was caused by a small firearm or fragmentation bullet. The groove formed by the projectile in the neck suggests that it is more likely to have been caused by shrapnel since a firearm would cause a narrower groove. The injury was inflicted from upward and then backward and downward.675
(b) the injuries to Witness CF were caused by a bullet (or fragment) fired from a firearm of heavy calibre: an MK-84 machine gun or heavier rather than to an automatic rifle. The bullets must have been fragmentation bullets which hit the treetops and then hit Witness CF in the neck, because the channel is too irregular. The injury D‘enana Pezer’s leg could not have been caused by a small bullet but by a projectile from an MK-84 machine gun or anti-aircraft gun hitting the trees.676
6. Findings of the Trial Chamber
462. The Trial Chamber takes account of the undisputed evidence that, prior to the conflict this accused was on good terms with Muslims and displayed no nationalist or ethnic prejudice. The Trial Chamber also takes account of the evidence (again undisputed) that he suffers from a congenital heart condition and, as a result, was excused from military service. However, this condition neither prevented him from leading an active life (as his evidence concerning his business shows), nor meant that he could not play a part in the events with which this trial is concerned .
463. In this connection, the Trial Chamber finds that in 1992-1993 Vlatko Kupreskic was an Operations Officer in the police with the rank of Inspector, as the Report of the Travnik Police Administration shows. The Trial Chamber rejects the evidence of the accused to the effect that he was concerned merely to make inventories of supplies for the police, and finds that he was an active operations officer. This occupation explains why he was seen unloading weapons from a car in front of his house in October 1992 and April 1993 and was again seen there on the afternoon of 15 April 1993. This is all evidence which the Trial Chamber accepts.
464. In addition to his police duties, the accused was engaged in business. It is his case that he did not return to Ahmici on 15 April until the evening when he got back from the trip to Split. On the other hand, the Prosecution evidence is that he was seen in Ahmici during the morning of 15 April at the Hotel Vitez (as noted) during the afternoon, and in the early evening in the vicinity of soldiers who were at his house. The Trial Chamber accepts the Prosecution evidence on this topic. While it has not been disputed by the Prosecution that the accused made the journey to Split, there is no evidence, apart from that given by the accused and his witnesses, as to the time of his return. The Trial Chamber is prepared to accept that Witness KL may have been mistaken in his identification of the accused in the morning, but is not prepared to accept that Witness B and Witness L are mistaken in their identification of the accused later in the day. Witness B, himself a security officer in the Territorial Defence and Witness L, a neighbour, both knew the accused and there is no reason to think either that they were mistaken or that they were lying during their evidence. The explanation for the discrepancy in the evidence is that the accused returned earlier in the day than he or his witnesses admitted .
465. The Trial Chamber also accepts the evidence given by the Prosecution witnesses in relation to the troop activities in and around the accused’s house on the evening of 15 April. This evidence is confirmed by the entry in Witness V’s diary recording that he learned that evening that the Croats were concentrating around the Kupreskic houses.
466. The Trial Chamber concludes from the above evidence that Vlatko Kupreskic was involved in the preparations for the attack on Ahmici in his role as police operations officer and as a resident of the village. The Trial Chamber also concludes that the accused allowed his house to be used for the purposes of the attack and as a place for the troops to gather the night before.
467. With regard to events on 16 April, it was not disputed that shots may have been fired from Vlatko Kupreskic’s house (although the circumstances in which they were fired are in dispute). The Trial Chamber finds that the first shots came from the Kupreskic houses, including that of the accused, as alleged by Esad Rizvanovic , and that firing continued from that house or its vicinity during the day as alleged by Witness E, Witness V, Witness W, Witness KL and Witness BB and the witnesses to the firing upon the Pezer family (dealt with below).
468. In this connection the Trial Chamber rejects the evidence of the accused that the firing from his house had no connection with him and came about because soldiers broke into his house and used it. The Trial Chamber concludes that part of the accused’s contribution to the attack was to authorise the use of his house for this purpose.
469. With regard to the evidence relating to the direct participation of the accused in the conflict of 16 April, the significant part is that relating to the shooting of the Pezer family, involving, as it did, the killing of Fata Pezer and the wounding of her daughter, D‘enana. The Trial Chamber accepts that those responsible for these crimes were a group of soldiers standing in front of Vlatko Kupreskic’s house . Whatever the exact cause of D‘enana’s injuries was, the Trial Chamber is in no doubt that there was a group of soldiers firing, as alleged. However, the Trial Chamber is not satisfied that Vlatko Kupreskic was among them. Only one witness ,Witness Q, identified the accused. This witness did so at a distance of over 50 metres: a distance at which, as Professor Wagenaar pointed out, a witness is as likely to be mistaken as not. In the absence of confirmation of the correctness of this identification, the Trial Chamber is not able to be sure that it is correct . Accordingly, the allegation that Vlatko Kupreskic was present when these crimes were committed is not made out.
470. The other evidence relating to the presence of the accused during the armed conflict was that given by Witness H, who contends that the accused was in the vicinity of Suhret Ahmic’s house at about 5.45 a.m. and shortly after the latter was murdered . This evidence was disputed by the accused. The evidence of Witness H has already been discussed in connection with the cases of the co-accused Zoran and Mirjan Kupreskic. She knew Vlatko Kupreskic and had no doubt of her identification of him. Her evidence was supported by the evidence of Witness KL. The Trial Chamber finds that this identification was correct and that Vlatko Kupreskic was in the vicinity shortly after the attack on Suhret Ahmic’s house. There is no further evidence as to what the accused was doing there,677 but the Trial Chamber concludes that he was present and ready to lend assistance in whatever way he could to the attacking forces, for instance by providing local knowledge . In this connection the Trial Chamber notes that he is recorded in two documents as being mobilised as a member of an HVO regiment on 16 April.
471. It follows that the evidence of the accused and his witnesses as to his non-participation in the conflict is rejected as untruthful. His role in the conflict was to assist in the preparation for it and to be present and ready to give assistance during it.
D. Drago Josipovic and Vladimir Santic
1. Introduction
472. The cases involving these two accused may conveniently be considered together because both are charged together with offences in count 1 and counts 16-17 (the attack on the Puscul family and their house).
2. Background
473. Drago Josipovic is aged 44, having been born on 14 February 1955. Prior to the conflict he worked in a factory. The following evidence was given regarding his conduct and associations:
(a) Witness G, who lived in Ahmici with his family was 13 years old in 1993 . In the early 1990’s he was a friend of Drago Josipovic’s son, Goran. Witness G said in evidence that a rifle was kept in the porch of the Josipovic house and Drago Josipovic used to wear a uniform, a pistol and a belt.678
(b) Drago Josipovic’s wife, Slavica, came from what Witness Z described as an “Ustasa family” (her brother was Nenad Santic). Drago Josipovic was seen with a rifle, usually in civilian clothes, but, on occasion, in uniform.679 Witness GG in the period before the attack on 16 April saw Drago Josipovic in a camouflage uniform with HVO patches.680 She also saw Slavica in uniform on television with Dario Kordic when HVO soldiers were taking a solemn oath.681 Witness CB said that the accused was a member of the HVO but was not on active duty: he was a member of the village guard taking part in patrols.682
(c) Witness EE knew Drago Josipovic well as a neighbour: she had known him since childhood.683 She also knew Vladimir Santic since she used to meet him during the course of her work for the Vitez Municipality and often used to see him in the street going towards the Hotel Vitez.684 Passing her house before the conflict, Drago Josipovic had said to Fahrudin Ahmic (who was killed on 16 April) “pity for those two houses here”. Fahrudin then told Witness EE what Drago Josipovic had said.685
(d) The accused’s name appears on the HVO Mobilisation Report686 as having been mobilised between 16 and 28 April 1993.
474. Witnesses called by the Defence painted a different picture. Drago Josipovic was portrayed as a quiet, hardworking craftsman, not politically active and on good terms with his neighbours.687 He was a member of the village guard688 and had a rifle which had belonged to Fahrudin Ahmic, but which had been surrendered to Nenad Santic who had given it to Drago Josipovic. The latter was not comfortable with this.689
475. The accused is by profession a policeman. He is aged 41, having been born on 1 April 1958. The Prosecution case is that by the time of the conflict he was a Commander in the Military Police and had an office in the Hotel Vitez.690 In January 1993 he had been promoted from Criminal Inspector to Commander of the 1st Company of the 4th Battalion, which was under the command of Pasko Ljubicic.691
476. Evidence concerning his position was given by Prosecution witnesses:
(a) Witness B, a Muslim Territorial Defence Security Officer in Vitez took up complaints which he had received about the activities of the Military Police with Vladimir Santic, either on the telephone, or in person in Vladimir Santic’s office. On one occasion Anto Furundzija came into the office in uniform, his face masked by cream and carrying a gun. Anto Furund`ija said to Vladimir Santic: “ It’s all right, we’re back”. Vladimir Santic asked “How did it go? Is everything all right?” In the witness’s opinion, Vladimir Santic was the superior of the former .692
(b) Brigadier Asim Dzambasovic of the BiH army, a professional soldier and former JNA officer, described six documents693 signed by Vladimir Santic as documents all signed by a company commander and one 694 as a company commander’s report to the Commander of the Military Police.695
477. Vladimir Santic was also Commander of the Jokers. This was according to the evidence of Witness AA, who was a Muslim member of the HVO Military Police and a member of the Jokers. Witness AA had known Vladimir Santic since childhood , their fathers having been friends, and Vladimir Santic was his superior when he joined the HVO Military Police.696 According to Witness AA, Vladimir Santic told him of the establishment of a “special purpose or anti-terrorist” unit to be set up at the Bungalow in Nadioci. The witness’s platoon reported there.697 Vladimir Santic gave them orders, e.g. telling them to decide on a name for the unit, to take anything they needed for the Bungalow from Busovaca and to visit the lines at Rovna. Vladimir Santic approved the election of Anto Furundzija as “Immediate Commander”. In the witness's view the Jokers could do nothing without orders from Vladimir Santic.698 In March 1993 Vladimir Santic signed three orders imposing various punishments on Witness AA.699
478. On the other hand, defence witnesses gave evidence of his good character. According to one witness, distantly related to him, Vladimir Santic was employed in the civilian police before the war and was an exemplary individual.700 According to another witness (Zeljko Kocaj) he never drew attention to himself as a nationalist.701 Declarations were admitted from his wife, sister, a colleague and a Muslim family friend, which speak of his professional approach to his work, sociability and friendliness, including a willingness to help to those in need, of whatever religion.702
3. Their Alleged Participation in the Killing of Musafer Puscul and Burning of the Puscul House
479. The Prosecution relied on the evidence of one witness, Witness EE, in the case against the accused in relation to these allegations. Witness EE's evidence was as follows: at dawn on 16 April there was a loud detonation and shooting. Voices could be heard calling out her husband, Musafer's, name: “Open the door, this is the police”. There was then a burst of gunfire and Musafer opened the door . Soldiers in full uniform were on the verandah outside the door: the witness was at the door and recognised Drago Josipovic, Vladimir Santic, Zjeliko Livancic, Marinko Katava and Karlo Cerkez. Santic and Livancic then took Musafer away and the witness never saw him again. Santic and Livancic were wearing camouflage uniforms with an HVO patch and they were wearing helmets (the only ones to do so ).703 Drago Josipovic told Witness EE and her children to go into the corner of the veranda and threatened to cut their throats. When the witness and the children went into the corner, a single soldier , Stipo Alilovic, remained. Then the group of soldiers re-appeared, including Drago Josipovic. Livancic ordered the witness and children to get out. She and the children went outside near some sheds where her mother was. While there, the witness saw Vlado Santic passing by: she hailed him, but he moved away.704 The witness, her children and mother spent the day in a shed. There was shooting throughout the day, and soldiers set fire to her house. Towards evening Drago Josipovic (in full military gear), Anto Papic and Jozo Livancic came to the shed. They told her to come out and she, her mother and the children did so. Drago Josipovic said that the shed would be set on fire. (She asked for the cows to be let out and he let the animals out). She was told to go to Anto Papic's house with her family , which is where they went.705 While they were in front of the shed Drago Josipovic told her that her husband Musafer had been killed.706
480. In cross-examination Witness EE said that she wore glasses outside and when driving a car, but not in the house or at work. She was not wearing her glasses on 16 April.707 Her husband (Musafer ) was killed beside the shed: she could hear shooting while Drago Josipovic was ordering her to go into the corner. Her late mother was standing there and watching Vladimir Santic and Zeljo Livancic as they were leading him behind the shed.708 Drago Josipovic wore a camouflage cap but she recognised him: “. . . it was Drago . I saw the moustache and everything and I saw him there. I recognised him by everything because we saw each other every day. We were neighbours”.709 In re-examination she testified that Drago Josipovic was “in full military gear, camouflage uniform, camouflage cap, HVO insignia and weapons”.710 She had no doubt that Drago Josipovic and Vladimir Santic were in her yard on the morning of 16 April 1993.711
481. The following is a summary of statements made by Witness EE:
(a) On 5 May 1993 at Zenica the witness made a tape-recorded statement for an Officer of the United Nations Centre for Human Rights (Witness HH). According to the latter's note of the recording712 the witness said that on 16 April she heard shouting at the door, telling her husband to open the door. When Musafer opened the door she saw HVO soldiers, whom she knew. Zeljko Ivancic took her husband and fired three bursts of gunfire into him; thereupon she saw Stipo Alilovic, Drago Josipovic and Vladimir Santic. Stipo Alilovic told her to shut up and threatened to kill the witness and her children.
(b) On 14 May 1993 in a statement to Zenica Security Services she said that Stipo Alilovic ordered Zjelko Livancic to take her husband and he took him behind a shed and shortly after she heard a burst of gunfire.713
(c) On 20 December 1993, in a statement to the Zenica court she said that Zjelko Livancic took her husband behind the shed and fired three bursts of gunfire into him.714
(d) On 1 February 1995, in a statement made to investigators of the Office of the Prosecutor, she said that Zjelko Livancic, Vladimir Santic, Drago Josipovic and Marinko Katava took Musafer behind the shed: she heard many bursts of gunfire from the shed where they took her husband.715 She said in evidence that she had not said that the four men took her husband off .
482. The Defence called evidence to cast doubt on the credibility of Witness EE. The purpose was to show that Marinko Katava, Stipo Alilovic and Zeljko Livancic were not in Ahmici on 16 April 1993 and, accordingly, that the witness was mistaken in her identification of them as parties to the killing of her husband.
(a) The Defence called evidence to show that Stipo Alilovic was in the Netherlands on 16 April 1993, i.e. the evidence of Mrs. Dragica Krizanac, the widow of Stipo Alilovic,716 supported by the evidence of Ms. Johanna Hume, a Dutch friend of the Alilovic’s whose daughter went to the same school as the Alilovic’s daughter.717 Documents were exhibited to the same effect.718
(b) Evidence was called that Marinko Katava was in his apartment in a building on Marshall Tito Street, Vitez on the morning of 16 April; i.e., the evidence of Witness CD, who lived in the same apartment,719 and Marinko Katava himself.720
(c) Evidence was called as to the presence of Zeljo Livancic in Kuber on the morning of 16 April. According to this evidence Livancic was Commander of a unit of guards who went to Kuber on 13 April and which were still there on 16 April and which remained there all day.721 Livancic was killed on 17 April.
483. The Prosecution sought (and were granted) leave to withdraw the indictment against Katava on the grounds that there was an insufficient evidentiary basis to justify proceeding with the prosecution. However, the decision to withdraw the indictment was one for the Prosecution and it does not follow that Witness EE is mistaken in her identification of the accused. Similarly, even if she was mistaken about her identification of Katava (and Alilovic and Livancic), it does not necessarily mean that she was mistaken in her identification of Drago Josipovic and Vladimir Santic . Although she did not see the accused for long (a matter of seconds),722 she recognised them as people known to her before the attack (Drago Josipovic as a neighbour for more than 30 years and Vladimir Santic professionally).
4. Their Alleged Participation in Other Incidents on 16 April 1993
484. Drago Josipovic was identified as a participant in other attacks on the homes of his neighbours in which the male inhabitants of the houses were executed and the houses set on fire. This was part of what appears to have been a concerted attack on Muslim homes in the area.
485. First, it is alleged that Drago Josipovic participated in the attack on the house of Nazif and Senija Ahmic, during which Nazif and his 14 year old son, Amir , were killed. Witness DD gave evidence of this attack. She saw Drago Josipovic among soldiers near Asim's house, shooting at Nazif's house: the soldiers came to the latter house. A soldier took Amir behind the house and a shot was heard. Drago Josipovic then came from behind the house, taking off his mask or cap to wipe sweat from his forehead. Drago Josipovic pointed a rifle and told a soldier with whom she had been struggling to leave the witness alone.723 It seemed to the witness that Drago Josipovic was in command.724 She had known Drago Josipovic as a neighbour for 21 years prior to the attack.
486. Secondly, it is alleged that Drago Josipovic participated in an attack in which Fahrudin (‘Fahran’) Ahmic was killed. Fahrudin’s mother, Witness CA, gave evidence regarding this attack. (She was a Court witness, called by the Trial Chamber ). She lived in Zume near Fahrudin and Drago Josipovic: only a fence separated her house from that of Drago Josipovic. She said she had good relations with Drago Josipovic 's mother who was like a sister to her. Drago Josipovic grew up with her children in her courtyard; her son, Fahrudin and Drago were like “blood brothers ”.725 Her evidence was as follows :
(a) On the morning of the 16 April at about 5.20 a.m., after some detonations, Witness CA saw four soldiers in camouflage uniforms and with rifles coming from Drago Josipovic's yard to her house. They asked for her son, Fahrudin, and shortly afterwards threw a bomb into the upper part of her house. They then broke in and put her husband up against a pillar to be shot. She successfully pleaded for his life. The soldiers then told her to leave (which she did) and they set fire to the house. Witness CA then went to Fahrudin's house where his children told her that he had been killed .726 She subsequently saw his body .
(b) Later she saw Drago Josipovic nearby with a man called Anto Papic; they had camouflage uniforms and weapons. She asked Drago Josipovic where he was when Fahrudin was killed. He was crying and said he would have done something if he could, but he could not do anything. When asked who had ordered the killing, he said “somebody higher up, some higher force”.727 At Drago Josipovic’s suggestion the witness and her family were taken to Anto Papic's house. While they were in the house Witness CA asked Drago Josipovic to collect two other families from their houses which he did. Drago Josipovic told the witness that Musafer Puscul had been killed and that Jozo Livancic had told him.728
(c) The next day, on 17 April 1998, Drago Josipovic and Anto Papic told the witness and her husband to go to Ramiz's yard. When she met Drago Josipovic later, she asked him to accompany her. He refused, saying that he could not save them since there was shooting and they would all be killed. He told her to follow her people .729 They went to Ramiz’s yard and her husband was subsequently taken away and executed.
487. It may be noted that there was evidence of a similar attack on another house nearby on 16 April (although Drago Josipovic was not identified as a participant ). This evidence, given by Witness FF, was to the effect that shots were fired at the house, her husband Razim was taken from the house and while she and her children were locked in a barn her husband was executed.730
488. The remaining evidence concerning Drago Josipovic’s conduct on 16 April concerns events at or near the Ogrjev Plant:
(a) Witness Z said that he saw Drago Josipovic on the main road near the Ogrjev Plant at about 4.30 p.m., leading a group of soldiers, wearing a camouflage uniform and multi-coloured cap and with an automatic rifle, but no paint on his face.731
(b) According to Witness Z, Aladin Karahodja, night watchman at the Ogrjev Plant , told Witness Z that on 16 April 1993 Drago Josipovic took his gun from him and threatened him.732
(c) According to Witness BB, Aladin told her that Drago Josipovic had locked him in his hut and told him that he would see everything and be the last to be killed .733 (Aladin is now dead). However , the Trial Chamber notes that this allegation was not contained in Witness BB’s statement made in 1995.
489. There is no other direct evidence of Vladimir Santic’s involvement in attacks on 16 April 1993. However there is evidence of the accused’s involvement with the Jokers from which the Prosecution invited the Trial Chamber to conclude that he participated in such attacks, at least in his capacity as Commander of the Jokers . This evidence was as follows:
(a) According to Witness B, on 16 or 17 April 1993 a young HVO soldier, Zoran Santic, was arrested in Stari Vitez and was questioned. Witness B overheard part of the questioning. Zoran Santic said that he had spent the last few months at the Bungalow as a messenger and that it was full of troops and Special Purpose Units: he had often seen Vladimir Santic there. On the evening of 15 April 1993 “there was intensified activity with arming, equipment and fresh forces coming in ”. Zoran Santic was at the Bungalow and Vladimir Santic came in a car with a crate of alcohol. There had been a meeting at which he overheard Vladimir Santic say that the order was that not a single male from 12-70 years must remain alive; everyone else was to be captured.734 (The Trial Chamber bears in mind that this evidence is double hearsay).
(b) A video tape of a TV report (alleged to have been made by Bosnian Croat TV from Busovaca) relating to events on the evening of 16 April showed a scene at 2248 hours which Witness AA identified as showing the Jokers in the Bungalow with Pasko Ljubicic and Vladimir Santic.735 The Defence did not dispute that Vladimir Santic is shown on the tape but disputed the circumstances in which it was filmed and said that the time shown therein was not accurate.
(c) According to Sulejman Kavazovic, on 24 April 1993 he was taken to the Bungalow where he saw Vladimir Santic, wearing a black uniform normally worn by the Jokers, together with 50 or 60 people from various units. Vladimir Santic ordered some men to take the witness to Kratine.736
(d) Zaim Kabler, a Muslim prisoner and an acquaintance of Vladimir Santic ’s, said that he saw Vladimir Santic at the Bungalow on 26 April 1993 in a camouflage shirt and patches.737
5. Defence Evidence concerning Events on 16 April 1993
490. The case for this accused is that he was not involved in the murders as alleged by the Prosecution. He alleges that he was not at the location alleged at the material time but that he instead spent the day moving around the houses nearby, in particular , those of Anto Bralo and Anto Papic. He took no part in military activity but rather, was helping others find shelter (including Muslims).
491. In support of this case Drago Josipovic called evidence from five of his neighbours and another witness was called by the Trial Chamber. First, Anto Papic said that at 5.15 a.m., he saw Drago Josipovic going past his (the witness’s) house. The witness was in his yard and invited Drago Josipovic in for a cup of coffee. Drago Josipovic said he was going to his father-in-law’s in Rovna where he had some business. After ten minutes shots were fired. Drago Josipovic said he did not know what it was. The witness suggested that they go to see who was firing. They went out and met Witness CB (the wife of Fahran) and her children. She asked the witness for shelter. He agreed. There were a number of Muslims at his house. Drago Josipovic brought Mirsad Osmancevic and Casim Ramic and family to the witness’s house where they were protected.738 Later he also brought back Witness EE.739
492. This evidence was supported by the evidence of Mr. and Mrs Kovac, Mr. Anto Bralo and Mrs. Finka Bralo, who described the accused moving around with Anto Papic in the vicinity of Anto Papic’s house between 5.30 and 5.45 a.m. that morning and taking Muslims to that house.740 These witnesses, together with Witness CB, testified that Drago Josipovic remained in this vicinity all day and helped various Muslims to find shelter in the house.741
493. It may be noted that Mr. Kovac and Mr. Bralo said that Drago Josipovic was carrying a rifle.742 Also, there was evidence that the accused was wearing an army vest which he lent to Mirsad Osmancevic (a member of the BiH Army).743 The vest had an insignia which was similar to that on the Croat flag, a small chessboard .744
494. A suggestion appeared to be made that a man called Slavko Rajkovic (a Croat soldier wearing a Jokers patch), who was himself killed on 16 April 1993, and who was seen together with other soldiers wearing black uniforms with painted faces in front of Ramiz Ahmic’s house, may have been responsible for the killings. Evidence of this was given by Josip Vidovic and Josip Covic.745
495. Witness CB was the wife of Fahran Ahmic and gave evidence which tended to contradict that of her mother-in-law, Witness CA. Witness CB said that she and her family were awoken by loud explosions. They went downstairs. A grenade was thrown into an adjacent room. A shot was fired into the door and a man came in.746 She said that he was tall and blonde, wearing a camouflage uniform with the insignia of the Military Police on his arm.747 The man told the family to get out. Her husband, Fahran, went out – the man shot him in a burst of gunfire. The rest of the family remained in the house. Her mother -in-law, Fatima, came to the house. A Croat soldier in camouflage uniform told them to leave.748 They left the house and went across the fields. There was gunfire all around.749 They met Drago Josipovic and Anto Papic. This was before 6 a.m.750 The witness said that Fahran had been killed and they expressed their condolences . Drago Josipovic said that if he had been there he would have been killed. Anto Papic and Drago Josipovic told them to go to Anto Papic’s house: his family would share their fate. The witness agreed with her statement to the Office of the Prosecutor that in her opinion Drago Josipovic could not have been near her house when her husband was killed. The distance between the witness’s house and Anto Papic’s house was 10 minutes walk.751
496. Dragan Calic, who was foreman of the warehouse in the Ogrjev plant, was called to give evidence about events at the plant. He said in evidence that Aladin Karahodja was one of the guards (he was between 27-30 years old and healthy ). He was on duty from 4 p.m. on 15 April 1993 to 8 a.m. on 16 April 1993. According to the rules, he could not leave until the foreman arrived. The witness did not go to work on 16 April. Aladin could have climbed out over the fence or gone through the small gate which was not locked. If the guard hut was locked a person inside could get out through the door or window. On 18 April the witness returned to work and everything was in order: the door was unlocked and a pistol was in the drawer with two rounds which had been issued to Aladin.752
497. The Defence case is one of alibi, i.e. that at the time that Witness EE alleged that he was one of the party who attacked her house and killed her husband, Vladimir Santic was in fact in the HVO Headquarters in the Hotel Vitez. He called two witnesses in support of his alibi.
498. The first witness was Davor Biletic, a member of the 4th Batallion of the HVO Military Police, employed in security in the Hotel Vitez. He said that at midnight of 15 April, he was on duty at the reception desk at the Hotel. At 5.15 a.m. on 16 April Vladimir Santic arrived as usual: there was a clock on the desk and the witness was aware of the time as he had to wake up those who were going on guard duty. Vladimir Santic came to the hotel on foot: he was dressed in a camouflage uniform and was carrying a pistol.753 The witness exchanged greetings with Vladimir Santic who then went into the Military Police office behind the reception. At 5.30 a.m., there was a loud detonation, followed by smaller detonations which shattered some of the glass. There was also fire from rifles. Shells and bullets were falling around the hotel. The witness took up position outside the entrance: he heard Vladimir Santic’s voice.754 The witness remained at his post at the entrance until 11 a.m., when he went to get a sandwich and saw Vladimir Santic going into the mess. At about 6 p.m., the witness went to get his dinner and again saw Vladimir Santic in the mess.755 After 8 p.m., the witness and six others from hotel security were sent to the Bungalow by vehicle. He saw Vladimir Santic in front of the Bungalow. The group stayed for 20 minutes at the Bungalow and were then taken to the frontline at Kratine.756
499. The second witness, Ivica Franjic, was at the time Manager of the Hotel Vitez. According to his evidence, he was living in Kruscice, about 1 km. from the hotel.757 On 16 April, having been woken by detonations, he left for the hotel, arriving there between 6.15 - 6.30 a.m. He saw Vladimir Santic in the lobby of the hotel and asked him what was going on, only to receive a dismissive reply, to the effect that “well, don’t you see?” The witness left the hotel shortly afterwards because none of his staff were there . Santic stayed in the lobby, issuing instructions.758 This witness was cross-examined about an interview with an Office of the Prosecutor Investigator in March 1999 (in the presence of both Prosecution and Defence Counsel ) in which (contrary to his evidence) he said that he left the hotel by the exit to the coffee shop: the witness said in evidence that he went through the coffee shop to the main entrance.759
6. Findings of the Trial Chamber
500. Dealing, first, with Vladimir Santic, the Trial Chamber finds that in April 1993 he held the following positions. It was not disputed that he was commander of the 1st Company of the 4th Battalion of the Military Police: the evidence of Witness B and the documents signed by the accused in this capacity make this clear .
501. The Trial Chamber also finds that Vladimir Santic was Commander of the Jokers . In this connection the Trial Chamber accepts the evidence of Witness AA who, as a member of the Jokers, gave evidence that the accused was their Commander.
502. The Trial Chamber finds that Drago Josipovic was a member of the HVO prior to 16 April 1993; he was a member of the village guard and was seen in the village in uniform and with a rifle. The Trial Chamber accepts the Prosecution evidence on this point and notes that much is undisputed. However, the background, views and conduct of the accused’s wife are irrelevant.
503. Turning to the alleged direct participation of both accused in the conflict on 16 April 1993, the prosecution relies on the evidence of Witness EE, who identified them both as participants in the attack on her house when her husband was murdered . Her evidence, together with the evidence called to cast doubt on it, have been analysed above. The thrust of the criticism is that she mis-identified three other participants. It is accepted by the Trial Chamber that the witness was mistaken in her identification of Katava and Alilovic, since there is compelling evidence that neither was in Ahmici that morning. (It is not accepted that she was mistaken about Livancic since the only evidence concerning his whereabouts that morning came from two of his colleagues). However, it does not follow from the fact that the witness was mistaken in the identification of two of the participants that she was mistaken in the identification of the accused. The witness struck the Trial Chamber as a trustworthy and careful witness who identified the two accused in a statement made within three weeks of these offences and has not, in any way, retracted it. The Trial Chamber accepts her evidence and finds that Vladimir Santic and Drago Josipovic participated in the attack on the Puscul house: they were part of the group of soldiers who attacked and burned the house and murdered Musafer Puscul.
504. The Trial Chamber also finds that Drago Josipovic participated in the attack on the house of Nazif Ahmic in which Nazif and his 14 year old son were killed. The Prosecution case, in relation to these crimes, rests upon the evidence of Witness DD. The Trial Chamber is satisfied that she accurately identified the accused. The witness had known the accused as a neighbour for a great many years and had a ample opportunity to identify him during the incident. The Trial Chamber is also satisfied that the witness accurately described the role played by the accused in the attack and that he was, in fact, in a commanding position with regard to the troops involved.
505. On the other hand, having heard the evidence of Witness CB, the Trial Chamber is not satisfied that Drago Josipovic participated in the attack on the house of Fahran Ahmic. At most, his comments to Witness CA amount to his saying that he knew of the incident and had not been able to do anything to prevent it.
506. The evidence concerning Drago Josipovic and the nightwatchman of the Ogrjev Plant is hearsay and inconclusive. However, the Trial Chamber accepts the evidence of Witness Z regarding the presence of the accused leading soldiers near the plant on the afternoon of 16 April.
507. In relation to Vladimir Santic, the Trial Chamber is unable to accept the evidence of the conversation overheard by Witness B. As noted, this evidence is double hearsay and lacks any features which could confirm its reliability. On the other hand, the Trial Chamber notes the scene displayed on the video tape, referred to in the same paragraph, showing the accused at the Bungalow with the Jokers in the Bungalow on the evening of the conflict.
508. In finding that Vladimir Santic was present during the conflict, the Trial Chamber rejects his alibi. In relation to one of the two witnesses whom the accused called to support his alibi, Davor Biletic, an indication of this witness’s lack of credibility was that although he was a member of the Military Police in Vitez, he denied knowing anything about the Jokers.760 He also denied knowing Vladimir Santic’s rank.761 In relation to the second witness, Ivica Franjic, the Trial Chamber, having noted the discrepancy between his evidence and the interview he gave, does not accept his evidence.
509. The Trial Chamber, likewise, rejects the defence put forward by Drago Josipovic and his witnesses. The picture which they paint of the accused spending the day moving around the locality to very little apparent purpose is simply not credible . The truth is that he was armed and active, playing his full part in the attacks on his neighbours, sometimes having command over a group of soldiers.