1 Tuesday, 24 July 2001

2 [Appeals Hearing]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 9.03 a.m.

6 JUDGE WALD: Good morning. We will resume the case. I think the

7 next one scheduled to speak is Ms. Glumac, but I see Mr. Abell on his

8 feet.

9 MR. ABELL: Your Honour, only to say this out of courtesy, I have,

10 overnight, prepared copies of that extra case that I cited in response to

11 Your Honour's question to me at the end of my oral submission, the case of

12 Davis, Rowe, and Johnson which is an English Court of Appeal case. The

13 relevant paragraphs I have marked are paragraphs 52 and 95. That will be

14 handed to Your Honours from the deputy registrar and I gather copies to

15 all parties will be distributed in early course.

16 JUDGE WALD: Thank you, Mr. Abell.

17 I understood, Mr. Radovic, that you had completed your part of the

18 presentation yesterday, is that not true, and that Ms. Glumac was going to

19 begin today or do you have something else?

20 MR. RADOVIC: [Interpretation] If you will allow me, I would like

21 to take 20 more minutes out of the time allotted to us.

22 JUDGE WALD: Is that satisfactory to Ms. Glumac because she does

23 have to -- I only have between both defendants. You have approximately, I

24 take it I have it a little over maybe an hour, an hour and 15 minutes

25 left. I do think as Ms. Glumac is representing one of the defendants

1 should have a portion of that.

2 MS. SLOKOVIC-GLUMAC: [Interpretation] I think that 55 minutes

3 would be enough for what I have to say because we calculated after our

4 work yesterday, and we decided that Mr. Radovic still has some time left

5 and I would need less than an hour.

6 JUDGE WALD: All right, but I'm going to keep you to the 20

7 minutes, Mr. Radovic, really, because I do think that she has to represent

8 herself, her client on part of this. So go ahead. You have until 25

9 after. Okay.

10 MR. RADOVIC: [Interpretation] Thank you.

11 I would like to begin with Witness SA. First of all, we deem that

12 psychiatric expertise should have been carried out, an examination first

13 of all to see whether she really is a psychiatric patient and, secondly,

14 whether she is able to testify despite of her illness because some persons

15 can testify even though they are ill, and the fact that we are in the

16 right is also shown by the Furundzija case where a witness who is a mental

17 patient also testified and her testimony was accepted. She gave a

18 statement, SA gave a statement on the 24th of April, on the 23rd of April,

19 then there is also a record on the investigation --

20 THE INTERPRETER: Could the counsel please be asked to slow down.

21 JUDGE WALD: Counsel, would you please slow down. The translator

22 has asked me to have you slow down.

23 MR. RADOVIC: [Interpretation] Statement of the 18th of October

24 1994, C5; 24th of September, 1995, C6. The Defence thinks that the first

25 three statements given directly after the events are the most accurate

1 because her memory was the freshest at the time, and also there were no

2 speculations at the time or conversations among the witnesses which might

3 have influenced her testimony.

4 In the first statements, SA stated that she did not recognise any

5 of the attackers because they were masked and their faces were painted.

6 Then, in contravention of Witness H's statement, Witness SA did not

7 confirm that Witness H had told her that among the attackers, she had

8 recognised Mirjan Kupreskic too. She said that she recognised only Zoran

9 Kupreskic.

10 In the first statement given to the police, she stated that she

11 heard a call for all the people in the house to come out, and then when

12 her husband came out, she heard a burst of gunfire. In her first

13 statement, she said that she could not identify any of the soldiers, but

14 she mentioned the people who were walking around the village and she named

15 them. Among those she named were not -- neither Zoran nor Mirjan

16 Kupreskic.

17 On the 5th of May, SA gave a statement to HH who is now a court

18 official. In this statement, she did not mention any of the perpetrators,

19 but she used the term "soldiers." In her statement dated 5th of May,

20 1993, she talks about the fact that her elder daughter did recognise Zoran

21 who was in the house allegedly with four other soldiers. In this

22 statement, she also mentions Mirjan Kupreskic, but not as a person who was

23 actually in her house but as a person she had seen before in the village

24 wearing a uniform.

25 If we compare her statement with the statement of Witness SA, then

1 one can see that they differ in many points, and that is why we deem that

2 the final testimony of Witness H cannot be used as a basis for making a

3 factual determination.

4 The stand taken by the Prosecution towards our clients is very

5 interesting too because in their closing argument, the Prosecutor asked

6 for 25 years in prison for them. And when they realised that the whole

7 set of accusations against Witness KL is, in fact, exculpatory then they

8 did not file an appeal against this, and they did have a very good reason

9 not to lodge an appeal because everything that our clients said in their

10 statements was either corroborated by witnesses or was corroborated later

11 on by documents that emerged on a later date.

12 Another interesting point when it comes to Witness H is that she

13 even confused the colour of the uniforms worn by the persons who were in

14 the house. When I talked about the fact that the villagers of Ahmici, or

15 of the middle section of the village where the Kupreskic houses are

16 located, in contravention to what is stated in the judgement that they did

17 not in any way assist the attackers, that they did not provide them with

18 any information and were not their guides, did not act as their guides,

19 then in my appellant's brief, I mostly used the testimonies of Zoran and

20 Mirjan Kupreskic.

21 However, of all the evidence that was accepted later -- all the

22 evidence that was accepted later confirms their testimony. I'm referring

23 to the testimony of one of the witnesses - you know the witness I mean -

24 who specifically said that the group which set off from the Kupreskics'

25 house contained also a person by the name of Mirjan Santic, who knew the

1 terrain well because he was from the neighbouring village. Mirjan Santic

2 died near the starting point.

3 When we claimed that the villagers of Ahmici did not know that an

4 attack was being prepared, we bore in mind the actual order of the events,

5 and that is the fact that the decision to launch an attack was made at a

6 meeting of the political leadership of the Vitez municipality, at Colonel

7 Blaskic's place, on the 15th of April, in the afternoon of that day. And

8 then a meeting was held with the military commanders and each of the

9 commanders was given an order what the units under their command were to

10 do. After that, the military police was transferred to the Bungalow and

11 the attack was launched the way you know it was launched.

12 When we talk about Zoran Kupreskic as a commander, then it is not

13 enough to say that he was a commander or some kind of a commander, but we

14 should also have a definition of what a commander actually is. According

15 to the stand of the Defence counsel, a commander is a person who makes

16 decisions and who entrusts the execution of their decision to a certain

17 circle of persons; or a person who receives an order from the superior

18 commander and relays it to his own subordinates with some elaboration,

19 providing some details.

20 If we take this definition of a commander as a starting point,

21 then you can see that Zoran Kupreskic -- that as regards the attack on

22 Ahmici, Zoran Kupreskic does not fit this definition, even if he were in a

23 position in which he was on the 20th of the October, 1992, when he

24 actually assigned guards to their duties.

25 As regards Witness H, we should note that at the time she was 13

1 years old; she was, therefore, a child. Her testimony has not been

2 corroborated by any other witnesses, and she was in a state of shock.

3 As regards the fact whether or not the Kupreskic brothers were

4 members of the HVO or not, I have already said that the Prosecution bases

5 this on the document P353 [as interpreted], which we have challenged. I

6 spoke about that very quickly yesterday, and now I will go over it in some

7 detail since I do have some time --

8 JUDGE WALD: I warn you, you only have approximately three minutes

9 more. Three minutes more. Three, right.

10 MR. RADOVIC: [Interpretation] What is important for us is the

11 document that was issued at the time, and that's document P335. Attached

12 to it is a list of persons mobilised in the period from the 16th to the

13 28th. Since the Kupreskic brothers are on this list as mobilised in this

14 period of time, then it is impossible for them to be members of the army

15 before the mobilisation, because if you are in the army, a member of the

16 armed forces, you cannot join the armed forces again to be mobilised.

17 And if you'd just allow me, I'd like to mention that P335 confirms

18 that the attack was carried out by the military police, because the

19 report, which is on pages 1 and 2 of this report, specifies that the

20 mobile units carried out the first attack; and after the mobile units

21 carried out the first attacks, the mobilised persons were brought to the

22 front lines to hold the positions gained by the attackers or reached by

23 the attackers.

24 Thank you very much, Your Honour. I think that I am in compliance

25 with your instructions.

1 JUDGE WALD: Yes, thank you, Mr. Radovic. All right, Ms. Glumac,

2 you have, by my reckoning, till quarter past ten, till 10.15.

3 MS. SLOKOVIC-GLUMAC: [Interpretation] Thank you very much, Your

4 Honours.

5 First of all, I would like us to go into private session because I

6 would like to say something that pertains to what my colleague Mr. Abell

7 said last night, and I believe that this should be corrected.

8 JUDGE WALD: We'll go into private session.

9 [Private session]

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6 [Open session]

7 MS. SLOKOVIC-GLUMAC: [Interpretation] Mirjan Kupreskic was

8 convicted for persecution as a crime against humanity under Article 5 of

9 the Statute described in Count 1 of the indictment. The Trial Chamber in

10 paragraph 779 of the judgement indicates that it had been confirmed that

11 Mirjan Kupreskic was in action in Ahmici as an attacker on the 6th of

12 April, 1993, and that he took an active part in those events. It is

13 stated that he entered a house and that he evicted Sukrija Ahmic's house,

14 Sukrija Ahmic from his house and his family. They used mostly the

15 principle of mutatis mutandis. Everything that has been found as regards

16 Zoran Kupreskic is also applied directly to his brother although I believe

17 that there are some differences.

18 So the question is: What evidence do we have to confirm the

19 established -- the fact established by the Trial Chamber that Mirjan

20 Kupreskic entered Sukrija Ahmic's house and expelled his family? As

21 regards the material element of persecution that Mirjan Kupreskic

22 committed, the Trial Chamber based itself on one single piece of evidence

23 and that is the statement of Witness H. Witness H was used by the Trial

24 Chamber to identify the perpetrators. She stated that when her family's

25 house was attacked, that she hid in a shelter, and then her father left

1 the shelter, opened the door, HVO soldiers killed him, and her family was

2 expelled from the shelter.

3 As she went out of the shelter she saw Zoran Kupreskic and then as

4 she passed through the corridor, she saw Mirjan Kupreskic. The question

5 is: How well could she have recognised or identified this person?

6 Witness H said that the attack on her house took place between 5.20 and

7 5.30 in the morning, that there were no lights on in the house. As she

8 passed through the corridor from the children's room, she saw a soldier on

9 the staircase, and she recognised him as Mirjan Kupreskic.

10 The witness, herself, says that the identification took just one

11 second. She then turned her head away and went to the kitchen. She did

12 not see him after that.

13 When she saw him, she saw that he wore a black uniform and that

14 his face was painted black. That he carried an automatic weapon, and

15 hand-held rocket launcher slung on his back.

16 What is the quality of the identification? First of all, it was

17 just a glance. The witness testified that it was just a second.

18 Secondly, it was very dark in the house. There were no lights on. We

19 heard from other witnesses that that morning, in the village, it was

20 dark.

21 Witness K, who lived in a house next door, said that it was so

22 dark that her husband was unable to find his trousers. Witness C used the

23 phrase that it was "pitch dark." And other witnesses said that they had

24 to turn on the lights in order to be able to see anything.

25 It was a cloudy day. It was raining, and there was a fog, and

1 there were no street lights because this was, after all, a village.

2 Thirdly, the ability to identify someone was lessened because the

3 face of the attacker was masked. It was painted black and the witness,

4 herself, said that she was in a state of serious shock, that she was

5 petrified a horror because her father had been killed and she was,

6 together with her two sisters and her mother, was at the mercy of the

7 attackers.

8 If we take all this into account, it is doubtful whether the

9 identification of that man standing on the staircase as Mirjan Kupreskic

10 is accurate. There is a very real possibility that the witness may have

11 made a mistake. Her conviction that she speaks the truth does not mean

12 that she really did speak the truth.

13 In this particular case, the quality of the identification was low

14 because it was made after just a glance in very difficult conditions. The

15 Trial Chamber did not admit any other evidence to the effect that Mirjan

16 Kupreskic was indeed there in that place at that time that morning.

17 In judgement, the Queen versus Turnbull quoted by the Trial

18 Chamber and as I can see my learned colleagues are using it all the time,

19 it is stated that when an identification is bad, if the identification was

20 based on just a glance or a prolonged observation in difficult conditions,

21 that in those circumstances, corroborating evidence must be found.

22 In this case, there were no other pieces of evidence of this

23 kind. The Trial Chamber bases its judgement only on the impression that

24 Witness H made on it. The Trial Chamber states that the critical remarks

25 on her testimony are weaker than the effect that she made -- the

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1 impression that she made on the Trial Chamber.

2 The Trial Chamber says that the witness looked very confident and

3 very convincing and that she had no doubt with respect to the

4 identification that she carried out, paragraph 403. The fact that the

5 witness seemed convincing does not mean that she said the truth. Even her

6 conviction with regard to the accuracy of the identification does not mean

7 that she said the truth.

8 Professor William Wagenaar, who was an expert witness during the

9 trial concerning problems of identification, he said that hundreds of

10 research projects were carried out in order to distinguish between the

11 conviction of witness in terms of whether he was speaking the truth and,

12 on the other hand, the accuracy of the statement itself.

13 This is exactly what he said [In English]:

14 "... studies is that the relationship between certainty

15 and correctness is very, very weak. There are many

16 witnesses who are perfectly certain and they are wrong

17 and there are many witnesses who are totally uncertain

18 but they are right. The bottom line is that the amount

19 of certainty expressed is much more an aspect of

20 personality of that witness. Some are very certain

21 witness. That's the way they are. Some other people are

22 always uncertain even if they know the answer perfectly

23 well. It's more an aspect of personality than an aspect

24 of the quality of what they say or what they remember.

25 So it is quite likely that an eye witness is totally

1 sincere, totally honest, very convinced, does not

2 assume that he or she can make a mistake, and still is

3 very wrong about it." [Interpretation] Transcript 9862.

4 That is to say that although the Trial Chamber was composed of

5 three extremely competent and qualified Judges, if judgement is based on

6 the impression that a witness makes, there is still the possibility of

7 making a mistake.

8 The witness was very convincing, and also she was convinced that

9 she did not make a statement to an investigative judge before, that and

10 she also said that the signature on the interrogation statement was not her

11 own. She probably forgot that situation altogether. And having made such

12 a statement again, she left the impression of a very convincing witness

13 and a witness who was sincere and meant what she said.

14 Also, the statement she made before the Trial Chamber differs

15 considerably from the statement she made to the investigating judge. Most

16 of these differences can be ascribed to the fact that time has gone by;

17 however, some of them are very important, because, for example, if in one

18 case she says that she saw the situation where the attackers killed her

19 father and in the other situation she said that she did not see this, then

20 the question is whether she spoke sincerely about everything she said.

21 The Defence could challenge the credibility of this witness only

22 on the basis of the differences between the statement she made before this

23 Tribunal and the statement she made earlier on before the investigating

24 judge, because the Defence did not have any other materials, because from

25 Witness H no other statements had been taken. The only statement that the

1 witness had was the statement that the witness gave in December 1993.

2 It is precisely for that reason that the Defence proposed to the

3 Court to call as a witness the mother of Witness H; namely, Witness SA,

4 who was an eyewitness and who could give her account as to how the event

5 actually happened.

6 I shall just mention briefly that Witness SA - my colleague just

7 mentioned this, but I had also put this in my brief because I thought that

8 we'd missed this - she gave a different account than Witness H did. The

9 difference was in the following: Witness SA claimed that the entire

10 family, when they were in the shelter and when they heard soldiers in the

11 house, decided to surrender and leave the shelter together; then the

12 father was singled out and killed. Witness H said that her father walked

13 out first on his own in order to surrender so that his family, all the

14 people who were in the shelter, would have no further problems; and that

15 is how she was in a position to talk to Zoran Kupreskic.

16 In this first version of events that Witness SA gave, there was no

17 such possibility at all; that is to say, the idea of the Defence to call a

18 witness which had first been proposed as a Prosecution witness was based

19 on the following: We wanted to find another statement made by Witness H

20 and also another eyewitness of the events concerned.

21 Since Judge Cassese, after having received a medical report on the

22 poor health condition of Witness SA, decided that he would not subpoena

23 her, and that the interests of the Defence were met through the fact that

24 all the statements that this witness had made would be admitted into

25 evidence, the Defence thought that in this way they were put in a position

1 to discuss the statements that were included in the evidence; and that the

2 substance of those statements could be confronted with the substance of

3 Witness H's statements.

4 The Defence did not think that these materials were being admitted

5 in order to confirm that Witness SA, in her fifth statement, says that she

6 recognised Zoran and Mirjan Kupreskic among the attackers in the house.

7 That would really be very, very bad, and it would be an ugly thing for the

8 Defence to do. However, in the judgement, we realised that the only thing

9 that the Trial Chamber took into account was precisely that, when Witness

10 SA first mentioned Mirjan and Zoran Kupreskic. And therefore I believe

11 that the Defence had really been mistaken in its belief as to what the

12 Trial Chamber would do.

13 I'm mentioning, however, the statement made by Witness SA for a

14 different reason here. She gave three statements after the events itself;

15 two to the police and one to the State Commission for the Establishment of

16 War Crimes, which had been founded by the Bosnia-Herzegovina government.

17 These are witness statements C2 and C3.

18 In the statement she gave seven days after the massacre in Ahmici,

19 on the 23rd of April, 1993, Witness SA said that she did not recognise any

20 one of the attackers because they were painted with different colours;

21 however, Witness H recognised Zoran Kupreskic in the kitchen.

22 Again, in the next written statement that she gave on the 9th of

23 May, 1993, that is to say, less than a month after the event in Ahmici,

24 she wrote that she did not recognise a single one of the masked soldiers;

25 however, that her oldest daughter recognised a neighbour, Zoran Kupreskic,

1 who was in her house together with four masked soldiers.

2 In these statements, the witness did not mention that her

3 daughter, in any situation, mentioned Mirjan Kupreskic as the perpetrator

4 of the crime in their house, nor did she mention that her daughter ever

5 mentioned Mirjan Kupreskic.

6 Precisely the fact that Witness SA, on two occasions, said that

7 her daughter had told her that her daughter had recognised Zoran Kupreskic

8 but not Mirjan Kupreskic provides for the possibility to think that

9 Witness H, only after a few months had elapsed, realised that actually the

10 person whom she had seen on the stairs of the house was Mirjan Kupreskic,

11 actually.

12 I shall go back to Professor William Wagenaar again, who says

13 during his testimony regarding the problem of identification, he says

14 briefly that identification is not an ongoing process, that identification

15 takes place very fast. Identification that is created later, so to speak,

16 or that covers an extended period of time is no longer identification.

17 If, after a certain amount of time elapses, we realise what we see, then

18 this is not perception; then it is a question of reconstruction.

19 Reconstruction is not perception, and it always takes place under the

20 influence of information that a certain person receives over a certain

21 period of time.

22 Your Honour, could we just move into closed session for a short

23 while. I will have to speak about Witness AT very briefly.

24 JUDGE WALD: We can do that, Ms. Glumac. But may I ask you, can

25 you consolidate your presentation so that anything that needs to be done

1 in closed session could be done all at one time, maybe, rather than having

2 to go out and in and out and in? In other words, we will go in now for

3 your discourse on Witness AT. Will there be other instances in which you

4 have to go into closed session? If so, it would be better to try to get

5 them all together.

6 MS. SLOKOVIC-GLUMAC: [Interpretation] There will be another

7 instance. However, I'm actually analysing only two pieces of evidence, so

8 I would not like to confuse the two. I don't want to mix apples and

9 pears. So I'll just ask for private session yet again very briefly;

10 however, I don't want to violate the rules in any way. I do apologise,

11 but I kindly ask for that to be done, please.

12 JUDGE WALD: All right. We will go into private session.

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14 MS. SLOKOVIC-GLUMAC: [Interpretation] Witness KL, who charged

15 Mirjan and Zoran Kupreskic with multiple crimes, the commission of several

16 killings in his house was -- his statement was not accepted by the Trial

17 Chamber and the Kupreskics were acquitted as far as the commission of

18 these crimes was concerned. The Trial Chamber concludes that the

19 inconsistencies in his statement can be explained in the following way:

20 That after talking to other persons, notably his granddaughter, Witness H,

21 this witness convinced himself of what he had seen. This shows that the

22 Trial Chamber does allow for the possibility of mutual influences between

23 and among the members of a family and their thoughts concerning the

24 possible perpetrators which is -- which resulted in certain evidence that

25 was admitted during these proceedings.

1 Witness H was barely 13 at the time when these events took place.

2 It is a fact that the testimony of children is always taken with a bit of

3 reservation because they attend -- they are susceptible to suggestions.

4 If we take all these circumstances into account, first of all that the

5 conditions for identification were very poor, that there is no supportive

6 evidence. Then, in the area where this event took place, a military

7 police unit had been sent, and then they had also received orders to that

8 effect, the fact that the attackers were armed is exactly the way members

9 of the military police had been armed, and also the fact that nobody

10 mentioned Mirjan Kupreskic before December 1993 as a perpetrator of the

11 crimes committed in Sukrija Ahmic's house.

12 On the 17th of December, 1993 before an investigative judge,

13 Witness H mentioned Mirjan Kupreskic for the very first time. According

14 to her mother's statement, Witness SA's statement, that is, Witness H did

15 not mention Mirjan Kupreskic before that. Three days after that, on the

16 20th of December, 1993, Mirjan Kupreskic was mentioned as a perpetrator of

17 the crime by Witness SA as well. And then after that, in the beginning of

18 1994, Witness KL also mentions him.

19 Neither Witness SA nor Witness KL who gave all of eight statements

20 beforehand never mentioned Mirjan Kupreskic before that. When all these

21 circumstances are taken into account and analysed, the Defence believes

22 that there is reason to doubt whether Mirjan Kupreskic was really in

23 Sukrija Ahmic's house that morning at all. That is, on the other hand,

24 evidence upon which the judgement is based.

25 In 421 and 789, paragraphs of the indictment -- of the judgement,

1 it is said that Mirjan Kupreskic was an active member of the HVO. The

2 Trial Chamber bases this conclusion only on the list of HVO members, and

3 his activities on the 16th of April, 1993, that is to say, the testimony

4 of Witness H.

5 As for this list of HVO members, the Defence called many witnesses

6 to show that this was not a credible document for a simple reason. This

7 list was made in retrospect after the war was over, in June 1996, and in

8 order to pay certain amounts of money or, rather, in order to obtain

9 shares. This was a decision passed by the Assembly of Bosnia-Herzegovina

10 in April 1996 that all participants in the war should be compensated in a

11 certain manner for the time that they had spent in the war. Then both the

12 Muslim and the Croat sides submitted lists that were considerably

13 exaggerated, and all of this with the intention of obtaining more money

14 for certain ethnic groups. On that list, there are some very old people,

15 there are some children as well.

16 According to law, the right to additional pay was exercised by all

17 members of the active and reserve forces, members of the police force,

18 members of the civilian defence, members of organisations that had defence

19 tasks, participants in the war, disabled persons, families of war victims,

20 et cetera. On the list there are also members of the village guards.

21 Mirjan Kupreskic, in his Defence, said that he had been a member of the

22 village guards during the period of one year.

23 Mirjan Kupreskic did not sign that list; however, the Trial

24 Chamber did not accept his statement. However, I would like to say that

25 there is yet another list, and that is P371 which was submitted by the

1 Prosecutor. This is a list that was compiled by the Defence office in

2 Vitez. Again, the name of Mirjan Kupreskic is mentioned for the period

3 from the beginning of 1992 until the 8th of April, 1992. That list was

4 compiled at the same time in this same period, but that went all the way

5 up to the 8th of April, 1992, that is to say, until the establishment of

6 the HVO.

7 This list clearly shows that Mirjan Kupreskic's name is on it, and

8 next to his name is a note that he refused to sign this list. However,

9 fundamental proof of the fact that information contained in the list of

10 the HVO is incorrect is shown by Prosecutor's Exhibit P335 in which it

11 says that in the period between the 16th of April, 1993 until the 28th of

12 April, 1993, 486 persons were mobilised into the Viteska Brigade. In the

13 text it says further on that most of the military conscripts mobilised

14 from the day of the outbreak of the conflict onwards were directly taken

15 to the first defence line. They are used in order to replace people who

16 are already on the front line, after the first strike took place; that is

17 to say, they are gradually brought in to replace soldiers from the regular

18 forces.

19 In this document, under number 109 is the name of Mirjan

20 Kupreskic, which is to say that he had undeniably been mobilised in that

21 period. If that previous list had been correct, then there would have

22 been no reason to have him mobilised again, because that would have meant

23 that he would have been an active member of the regular military forces.

24 From that list we can see that it was a time of mobilisation, from

25 the 16th of April, 1993 to the 28th of April, whereas Mirjan Kupreskic

1 stated in his defence that the exact date of his mobilisation was the 18th

2 of April, 1993, when the line at Pilica was established. According to the

3 allegations derived from that list, he was mobilised into the Vitez

4 Brigade.

5 Even if he had been mobilised on the day of the outbreak of the

6 conflict, on the 16th of April, then together with the Vitez Brigade he

7 would have been located in the area of Veceriska and Vranjska, where the

8 Vitez Brigade, according to the orders of Colonel Blaskic, was deployed.

9 Apart from that, from the quoted text we can see that he would not

10 have been involved in the first attack, but rather he would have been used

11 later as a replacement on the first defence line. This piece of evidence

12 shows that he, as a soldier of the HVO, could not have been present in

13 Ahmici on the 16th of April.

14 The Trial Chamber in the Kordic case established that the Vitez

15 Brigade did not take part in Ahmici on the 16th of April, 1993. In

16 paragraph 703, the Trial Chamber says that there is firm evidence that

17 Mario Cerkez, Commander of the Vitez Brigade, participated in attacks

18 against Vitez, Stari Vitez, and Veceriska, and that there is no evidence

19 that he bears any responsibility for the initial attack on Ahmici on the

20 16th of April, which was the responsibility of the 4th Battalion of the

21 Military Police and not under his command. It also says that the brigade

22 was not involved in the first attack, and any action in that area only

23 happened after the massacre.

24 If Mirjan Kupreskic had, in any way, joined in as a volunteer in

25 the attack against Ahmici, then there would have been no need to mobilise

1 him and he would not have been on the list of mobilised persons.

2 I would only like to add that Mirjan Kupreskic was a civilian up

3 to the day when he was mobilised. He had a regular job. This also brings

4 a shadow of doubt on the evidence underlying the determination by the

5 Trial Chamber that Mirjan Kupreskic was an HVO member.

6 How much time do I have left?

7 JUDGE WALD: You have just under ten minutes left, till 10.15. No

8 more.

9 MS. SLOKOVIC-GLUMAC: [Interpretation] In paragraph 430 of the

10 judgement, it says that Mirjan Kupreskic participated in the attack

11 against Ahmici as an HVO soldier, which is based on the testimony of

12 Witness H. It also says that it is reasonable to conclude that his role

13 and the role of Zoran Kupreskic were such that they were giving

14 information known to the locals, and that their houses served as bases

15 used by soldiers in the attack. The statement of Witness H has already

16 been analysed and so has the fact that Mirjan Kupreskic was not mobilised

17 on the 16th of April.

18 As for reasonable conclusions regarding Mirjan Kupreskic's role in

19 the provision of information and enabling soldiers to use the houses, we

20 should say that such conclusions were not corroborated by any evidence.

21 This allegation belongs to the area of speculation and guesswork, because

22 not a single witness testified to such activity on their part. It is

23 obvious that the basis for such reflections on the part of the Trial

24 Chamber was the testimony of Witness H, who was believed by the Court.

25 Can we go into private session for just a little while longer. I

1 have only two minutes left.

2 JUDGE WALD: Go ahead. We'll go into private session.

3 MS. SLOKOVIC-GLUMAC: [Interpretation] Apart from that, if we

4 analyse --

5 JUDGE WALD: Just a moment until we get into private session.

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13 [Open session]

14 MS. SLOKOVIC-GLUMAC: [Interpretation] But I interrupted a couple

15 of times due to switching into private session. I will --

16 JUDGE WALD: Ms. Slokovic-Glumac, everybody gets interrupted and I

17 think we have to have some kind of limits. Go ahead and complete your

18 statement now within the next two minutes. Thank you.

19 MS. SLOKOVIC-GLUMAC: [Interpretation] Thus, the statement

20 contained in the judgement is inaccurate because the witness did not say

21 that he had seen a group of soldiers in front of Zoran Kupreskic's house,

22 but on the intersection between Zoran and Ivan Kupreskic's houses, in the

23 afternoon, after 4.00 p.m. Also, from the testimony of a certain witness,

24 it is evident that the military police had not received any orders to

25 conduct any military reconnaissance.

1 As for the decision on sentencing, I would only like to note that

2 in paragraph 757 of the judgement, the Trial Chamber stated that with the

3 possible exception of one of the accused, the main perpetrators were not

4 tried here.

5 We should also take into account the previous life and the lack of

6 criminal record on the part of the accused and had there been no war, he

7 probably would have been in no conflict with the law. Also in another

8 place, the Trial Chamber states that it is a person of good character

9 without ethnic or nationalistic prejudice or extremist standpoints.

10 It is to be noted that he is his family circumstances should be

11 taken into account, Mirjan Kupreskic is married and father to two

12 children, two underaged children. One of his children has serious health

13 problems due to the stressful war situation into which he had been born.

14 He had a -- he has a complex picture of problems which makes him unable to

15 attend school regularly. He was hospitalised. He has poor eyesight and

16 he was determined to be mentally retarded. He has now been under

17 observation at the centre for autistic children, and I think this can be a

18 mitigating circumstance. All of this is corroborated by medical

19 documentation which has been presented to the Appeals Chamber.

20 Mirjan Kupreskic also supports his mother who is alone after the

21 death of her husband, and due to old age and her difficult mental state

22 due to the fact that both her sons are detained in The Hague suffers from

23 serious chronic diseases of the thyroid gland, gallbladder and others, and

24 heart disease and this, among others, is also a mitigating circumstance.

25 THE INTERPRETER: Ms. Counsel is speaking very, very fast.

1 MS. SLOKOVIC-GLUMAC: [Interpretation] I suggest with regard to

2 sentencing that these circumstances be taken into account because I

3 believe the pronounced sentence to be too high.

4 JUDGE WALD: Thank you. Let me inquire whether any of my

5 colleagues have questions for Ms. Glumac. No. All right. Thank you.

6 Now, we will move on to Mr. Josipovic.

7 Mr. Clegg, let me inform you, you do have an hour and 25 minutes.

8 I do plan to take a break for the translators' purpose about 11.00 which

9 would mean that your presentation would be roughly half over then. You

10 can plan your organisation around that, and then you can complete it after

11 the break, okay?

12 MR. CLEGG: Certainly.

13 May I just begin by indicating the topics that I hope to cover in

14 the allotted time. I propose, initially, to return briefly to the

15 standard to be applied to fresh evidence in the light of the Prosecution

16 bundle of authorities that was served on me yesterday morning. Then to

17 deal very briefly with the Prosecution appeal against conviction and

18 sentence insofar as it impacts on Josipovic. Then to advance submissions

19 in support of our appeal divided really into four parts.

20 Part 1 is a submission that the Trial Chamber acted unreasonably

21 in accepting the evidence of EE as a basis to convict. Secondly, an

22 assessment of the impact of the additional evidence of AT. Third,

23 consideration of the additional evidence of CA. And fourth, the question

24 of sentence.

25 Turning first, if I may, to the standard to be applied when fresh

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1 evidence has been admitted, I've now had an opportunity to read the bundle

2 of authorities served by the Prosecutor yesterday, and I think I conceded

3 in argument yesterday that the American authorities are divided, and it's

4 a concession that I readily make.

5 The first case in the bundle, the case of Huddelston clearly

6 supports the Prosecution's contention that the appropriate standard is

7 "would" and not "could." However, it supports the view that different

8 standards can apply for different types of fresh evidence, and there's the

9 Larrison test which is more akin to the test advanced on behalf of the

10 appellants, and the Brady principle which has the more restrictive

11 approach.

12 This can be illustrated by reference to page 7 of the judgement in

13 Huddleston where the more liberal lower standard described as the Larrison

14 test, the Larrison test is not followed by the court there, and use words

15 such as "probably would result in an acquittal," thereby support be the

16 higher standard asserted by the Prosecution.

17 The second American test of Joselyn, Billmyer, and Joselyn talks

18 of the Brady principle in the headnote using the words, "... could

19 reasonably taken to undermine the confidence in the district court's

20 verdict." And again at page 7 in the judgement of the court there, the

21 Brady principle is identified, and the two standards appear to divide upon

22 a consideration of whether the absence of evidence at trial was due to a

23 failure by the state to disclose material.

24 We would respectfully invite the Court not to impose, as it were,

25 two different standards in this Tribunal for the admission of fresh

1 evidence which would bring a determination of where the fault lay for the

2 absence of evidence at trial. The appellants here have, of course,

3 established the due diligence test already before evidence can be

4 admitted, and we would invite a rejection of the American two tier

5 approach to the tests which appears, from my research, to be unique to the

6 United States of America.

7 The Australian cases that are quoted, I am fortified, support the

8 proposition advanced by the appellant. The first is Gallagher which uses

9 the test described as, "... a significant possibility that the jury,

10 acting reasonably, would have acquitted the applicant of the charge if the

11 new evidence had been before it."

12 Those were words approved by the majority of the court, Chief

13 Justice Gibbs, Justices Mason and Deane. Mr. Justice Brennan, in part,

14 dissenting thought the, words "the likelihood of significant possibility,"

15 introduced a further nuance into the meaning that he did not like.

16 Mr. Justice Dawson was with the majority, preferring the words, "A jury

17 might reasonably acquit."

18 Page 5 of the judgement puts that very firmly in the appellant's

19 camp when the court says as follows: "However I would emphasise that no

20 form of word should be regarded as an incantation that will resolve the

21 difficulties in every case. No test can detract from the force of the

22 fundamental principle. The appeal must be allowed if a miscarriage is

23 showed to have occurred. It is only a practical guide to the application

24 of that principle to say that the court will grant a new trial if having

25 approached the matter with the caution that is always demanded when fresh

1 evidence is produced in a criminal case having weighed the credibility for

2 fresh evidence..."

3 THE INTERPRETER: Please slow down, Mr. Clegg, when you are

4 reading.

5 JUDGE WALD: Mr. Clegg, I have a request for you to go just a bit

6 slower from the translator.

7 MR. CLEGG: I apologise to the interpreters.

8 Just picking it up, a line bag back, "... and having weighed the

9 credibility of the fresh evidence and considered it's cogency in the light

10 of the evidence given at trial, it considers that a jury might reasonably

11 have reached a different verdict if the evidence had been available at the

12 trial."

13 And the final case, the Prosecution refer to is Mikelberg.

14 Perhaps before I turn to that, I could just allude to the fact that the

15 leading English case that's in the first book of authorities filed on

16 behalf of Josipovic may be the House of Lords case of Stafford was cited

17 and quoted in the judgement to the court in Gallagher in Australia with

18 favour, with Mikelberg, the case that we've just looked at in Gallagher

19 was applied and accepted, and the phrase that I quoted earlier of

20 Mr. Justice Dawson, and I quote again, "A jury might reasonably entertain

21 a reasonable doubt about the guilt of the appellant," and went on to use

22 the word "significant possibility did not evolve a different standard."

23 I'm in agreement with those statements.

24 So assisted, as I'm sure the Court is, in relation to those

25 authorities, certainly those from Australia support the view advanced by

1 the applicant; those from the United States identify the dual test that I

2 think is apparent in the papers and authorities lodged by the appellant

3 Josipovic in his book of authorities.

4 Can I just now turn for a moment to the Prosecution's appeal. I

5 have conceded, in the light of the developing jurisprudence of this Court,

6 and in particular the judgement of the Court in Jelisic, that the Trial

7 Chamber was in error in acquitting Josipovic of the two counts that can

8 perhaps best be described as those giving rise to cumulative convictions.

9 The Prosecution have made it clear that they only want to reverse the

10 acquittal. They are not inviting any sentence. There is no question of

11 the matter being remitted to a Trial Chamber, as happened in the appeal of

12 Tadic, for sentence to be reconsidered. But the Prosecution go on to say

13 that the sentence on Count 1 was wrong, that it ought not to have been ten

14 years and ought to have been 15 years. They say the Trial Chamber was in

15 error in passing a lower sentence on Count 1.

16 Now, for my part, it seems to me that this Appeal Chamber can make

17 any observation obiter that it likes in relation to whether there is force

18 in that submission or not, but the Appeal Chamber cannot increase the

19 sentence on Count 1 even if it feels that the Prosecution submission is

20 well-founded.

21 The Rules of the Court set down a strict timetable for the parties

22 to appeal a decision of a Trial Chamber, and each party must file notice

23 of appeal within the time limits set out in the Rules. The Prosecutor has

24 not appealed the sentence that was passed on Count 1, and indeed it wasn't

25 until a year after verdict that they ever suggested that the Trial Chamber

1 was wrong. If you look at their original brief filed in support of their

2 appeal, there is no complaint about the sentence at all. Leave was then

3 given, because of the developing jurisprudence of the Court, for them to

4 file an amended brief, but there was no leave given to launch a new appeal

5 upon which the time limits -- the time limits for which had long since

6 expired.

7 So insofar as the Prosecution is inviting the Court to reflect in

8 an obiter statement that the distinction between the sentences passed on

9 Count 1 and the other counts upon which Mr. Josipovic was convicted, I

10 don't seek to address the Court one way or the other; but I do submit that

11 insofar as they do appear to be suggesting - frankly, I'm not entirely

12 sure if they are or not - that you should somehow intervene, and without

13 either party actually appealing a sentence, of your own motion decide to

14 increase it, I would submit that there is no power for you to do that

15 under the Rules of the Court. You can only interfere with a judgement

16 passed by a Trial Chamber if one of the parties to the proceedings appeals

17 that decision, and neither party has appealed.

18 So I don't propose to address the matter any further, but I do

19 expressly invite clarification if I have misunderstood what the

20 Prosecution say at the appropriate time so I can deal with it in the

21 course of my response.

22 Now, turning to the substantive appeal of Josipovic, the first

23 ground of appeal is that the evidence of EE was so unreliable, so

24 inconsistent that no reasonable Trial Chamber could have accepted that

25 evidence and used it as the basis to convict.

1 Now, I readily acknowledge that there is a very high standard for

2 me to overcome in order to convince this Appeal Chamber that the Trial

3 Chamber was wrong in accepting that evidence, and the test is high. I

4 have to demonstrate that no reasonable Trial Chamber could have safely

5 acted on that evidence.

6 May I begin by looking at the judgement of the Trial Chamber and

7 just remind the Court what the Trial Chamber held in relation to EE.

8 At paragraph 503 in the judgement, and dealing with the findings

9 of the Trial Chamber, the Trial Chamber held as follows:

10 "Turning to the alleged direct participation of both accused in

11 the conflict on the 16th of April, 1993" - and I pause, it's there

12 referring to Josipovic and Santic - "the Prosecution relies on the

13 evidence of the Witness EE who identified them both as participants in the

14 attack on her house when her husband was murdered. Her evidence, together

15 with the evidence called to cast doubt on it, have been analysed above.

16 "The thrust of the criticism is that she has misidentified three

17 other participants. It is accepted by the Trial Chamber that the witness

18 was mistaken in her identification of Katava and Alilovic since there is

19 compelling evidence that neither was in Ahmici that morning. It is not

20 accepted that she was mistaken about Livancic since the only evidence

21 concerning his whereabouts that morning came from two of his colleagues.

22 However, it does not follow from the fact that the witness was mistaken in

23 the identification of two of the participants that she was mistaken in the

24 identification of the accused.

25 "The witness struck the Trial Chamber as trustworthy and a careful

1 witness who identified the two accused in a statement made three weeks

2 after the offences and has not in any way retracted it. The Trial Chamber

3 accepts her evidence and finds that Vladimir Santic and Drago Josipovic

4 participated in the attack on the Puscul house. They were part of the

5 group of soldiers who attacked and burned the house and murdered Muzafer

6 Puscul."

7 So that is the finding of the Trial Chamber, and there are two

8 important matters to take into account. The first is that without the

9 evidence of EE, all agree that there would be no case against Josipovic in

10 relation to that count of murder. It is entirely dependent on her

11 evidence. Take her evidence away, both sides agree there is no case.

12 Now, I'm not going to read it because of pressure of time, but

13 it's at paragraph 479 of the judgement that the evidence of EE is there

14 summarised.

15 Now, I don't shrink from suggesting that the Trial Chamber erred

16 in accepting the evidence of EE, and whilst in no way seeking to analyse

17 the words that the Trial Chamber used in that paragraph, 503, we have of

18 course to remember that the burden and standard of proof being firmly on

19 the Prosecutor, if it might be that EE's evidence is unreliable, then the

20 verdict must have been not guilty. The evidence should have been

21 rejected. Although the Trial Chamber does talk in terms of the burden

22 appearing to be on the Defence when it says, "It is not accepted that she

23 was mistaken about Livancic since the only evidence concerning his

24 whereabouts that morning came from two of his colleagues." It is, of

25 course, not incumbent on the Defence to prove that Livancic was not

1 present; it is incumbent on the Prosecution to prove that he was.

2 If I can just take the Court briefly to the evidence that we say

3 was so inconsistent, so unreliable that no Trial Chamber, properly

4 directing itself, ought to have convicted on that evidence. The relevant

5 evidence begins at page 4082, when the witness was asked these questions:

6 "Who did you recognise standing there at that time?" This is

7 outside her house, just before her husband is killed. It's when the

8 soldiers come, take him away, take him round the corner and he is shot.

9 Answer: "Vlado Santic, Zeljko Livancic" - more about him later because

10 he's somebody that features in the evidence of AT - "Drago Josipovic,

11 Marinko Katava, Karlo Cerkez."

12 Now, in that answer, the inclusion of the person Marinko Katava is

13 highly relevant. That person could not be there. Compelling evidence

14 proved that person was miles away in Vitez, and that was accepted by the

15 Trial Chamber in that passage of their judgement we've just looked at. So

16 right at this crucial part of the witness's evidence, she is saying that

17 Marinko Katava was present at the time when her husband was killed, when

18 we know that person cannot be there, on the finding of the Trial Chamber,

19 in the face of compelling evidence.

20 The questioning continued confirming the presence of that person

21 who we know was not there. "At that time did you recognise anyone else in

22 these two seconds?" "At this moment I just cannot think. I know Katava

23 was there," well, he wasn't, "Cerkez was there, Zeljo, Santic, Josipovic."

24 Then a little later, at page 4087, she dealt with the person Stipo

25 Alilovic, who has the nickname Brko. She said this: "... there was only

1 one HVO soldier standing here," that's at her house, "just one, and he

2 looked at me like this," and demonstrated to the Court. "This was Stipo

3 Alilovic, nicknamed Brko." "How long did you look at this Stipo Alilovic

4 at that moment?" "Just for several seconds. It was a matter of seconds.

5 It wasn't slow motion. Everything occurred in a matter of seconds.

6 Everything they did, this whole operation." "What did you recall seeing or

7 hearing next?" "Perhaps a second or two or three, it's very hard for me

8 to tell the time, in one split second again, a group of soldiers

9 appeared. Stipo Alilovic stood leaning against this wall at this first

10 step. Zeljo Livancic stood next to him. After him was Drago Josipovic

11 and Karlo Cerkez at this point."

12 Then I just skip three lines. "This Brko, Halilovic Stipo, held a

13 bomb, a grenade in his hand. Next to him was Zeljo." And then skipping

14 three lines, "Stipo Alilovic came up and said, 'What do I do with the

15 grenade?' he says to Zeljo. Zeljo looked at us, looked at me, looked at

16 my children. I'm sorry, I apologise for using this word. He says, 'Out,

17 get lost.'"

18 Now, all agreed or, at any rate, probably I am true to say all

19 agreed that the finding of the Trial Chamber was against compelling

20 evidence that Stipo Alilovic was in Holland on the day of the Ahmici

21 massacre and that was a finding of fact that the Trial Chamber made and

22 yet this Witness EE who gives the only evidence against Josipovic on the

23 count of murder has him standing next to her holding a bomb.

24 And, indeed, the examination-in-chief of prosecuting counsel at

25 trial reflects in those questions a desire for the witness, if possible,

1 to retreat from her identification of this witness by emphasising how many

2 seconds she had and so on. Because the Prosecutor at trial knew that the

3 evidence that the witness was in Holland not only existed but was

4 compelling. And indeed, so significant was this evidence that in the

5 closing brief of the trial submitted before the Trial Chamber, the

6 Prosecution, in an attempt to circumvent the embarrassment this evidence

7 caused them tried to suggest that it's possible that without anybody

8 knowing, and without his passport being stamped, Stipo Alilovic may have

9 somehow spirited himself back to Bosnia for the day in order to turn up

10 with the grenade and then get back again. That is contained in the

11 Prosecution closing brief as a sensible possibility in order to overcome

12 this evidence.

13 Well, the Trial Chamber rejected that, and they came to the

14 conclusion that there was no doubt that Stipo Alilovic, just like the last

15 witness, was not there. So you have a picture whereby the crucial

16 witness, the only witness who gives evidence against Drago Josipovic in

17 relation to this count of murder has wrongly identified two people who can

18 be proved to be elsewhere by evidence that is, as the Trial Chamber said,

19 compelling. There is at least a question mark over a third whom the Trial

20 Chamber was not prepared to accept was elsewhere as the only evidence came

21 from two witnesses. It's a very far cry from being sure that he was

22 there.

23 The evidence of the witness was reinforced just a couple of pages

24 on, 4089 she records this conversation with a man who was in Holland,

25 "Then Stipo Alilovic asked what I already told you about, what he'd do

1 with the Han grenade. Zeljo looked at me and the children," and she

2 repeats the evidence that she gave earlier. And then she said that her

3 husband was then taken away by the two men and shot.

4 I can give you the reference for the Prosecution's closing speech

5 where they put forward the -- one might say slightly desperate suggestion

6 that this witness had somehow got an away day ticket to get back to Bosnia

7 for the massacre, it's day 112 on the 11th of September, 1999, page 96,

8 line 13. It's a demonstration of how important the Prosecutor thought

9 this evidence was.

10 Later at page 4153, the witness confirmed again, Marinko Katava

11 was present. We know for sure that's wrong. And then a moment or two

12 later, she says this, "Stipo Alilovic, Stipo was there too, sir. Stipo

13 Alilovic nicknamed Brko. He has a dark complexion and he has a beard and

14 he has a moustache." "So he's characteristic, you would say he's..."

15 "Yes," said the answer "he has dark hair, he has a moustache, he has a

16 beard, he has a dark complexion." "You said you saw him a little later

17 on, but it doesn't matter, you now say you saw him in that instance?"

18 "Yes, I saw him then ..."

19 And then on the next page, 4155, she says, "So you saw them all,

20 Livancic, Santic, Brko, Alilovic, Stipo Alilovic, nicknamed Brko, Katava,

21 and all of them?" "Yes, I saw all their faces." "Madam," said the

22 questioner, "this incident is undoubtedly something you will remember for

23 your entire life, the trauma you have experienced." "Thank you for

24 understanding." Probably fair to observe that the person cross-examining

25 was actually getting her to reinforce what he knew to be a totally and

1 utterly false identification.

2 4164: Stipo Alilovic, the man in Holland, "Stipo Alilovic ordered

3 Zeljo Livancic to take my husband Muzafer, and he took him behind the

4 shed. Immediately afterwards I heard a burst of gunfire. After that, I

5 never saw my husband again." That was a quotation put to her from her

6 earlier statement. She accepted that she made it. The Trial Chamber

7 accepted she made it. That man who took her husband away and shot him was

8 in Holland.

9 There's a debate about Alilovic ordering it. Then there's more

10 about the description of Alilovic, the cap he was wearing on page 4170,

11 "... he a quite a few bandoleers with bullets on it, and the kind you

12 fill a rifle with at the same time as you shoot."

13 And then 4174, a description of Katava, all agree wasn't there,

14 couldn't be there in Vitez. "Katava didn't a have a cap and Cerkez didn't

15 have a cap, but Alilovic had a cap too." Then she says Katava played a part

16 in taking the husband behind the shed.

17 4187, "The people you saw on the terrace and recognised, Zeljo

18 Livancic, Stipo Alilovic, nicknamed Brko, Marinko Katava, Vlado Santic.

19 You explained to the Court that you know these individuals very well."

20 "Yes, certainly, of course."

21 All agree that this witness knew these two witnesses very well.

22 The person who was, in fact, in Holland and the person who was, in fact,

23 in Vitez.

24 4188, I won't read the descriptions that are gone into in great

25 detail but it ends with there, "... and therefore are you quite sure that

1 Stipo Alilovic was there?" "Yes, I'm 100 per cent certain."

2 The next page, Marinko Katava all know wasn't there. "So you were

3 able to see him, that's Marinko Katava, very well as well?" "Yes, that's

4 correct, sir." "Where do you know Marinko Katava from?" "I know Katava

5 very well, Marinko." "Yes, and I'm asking you, where do you know him

6 from?" " Well, Marinko, I know that he worked in the Impregnacija

7 company. His wife is a pharmaceutical worker, and his father is an eye

8 doctor, and when I wanted to get my licence, I went to glasses I went to

9 see them."

10 And then, "... everything you said about Marinko Katava leaves no

11 doubt that Marinko Katava would be at your door." "I am completely

12 certain that he was there." First answer on page 4190. And then slightly

13 repetitiously, 194, 100 per cent certain, again, in relation to Stipo

14 Alilovic.

15 So I don't shrink from submitting to this Appeal Chamber that in

16 the light of that evidence, the Trial Chamber erred in concluding that the

17 evidence of Witness EE was a safe basis to convict anybody. The slightly

18 curious finding of the Trial Chamber was that the witness was mistaken

19 about the identification of those two individuals. Accepting that at face

20 value, if a person can be mistaken about somebody they know very well

21 indeed standing in front of them holding a bomb, and somebody they know

22 very well indeed taking their husband around the corner and shooting him

23 dead, then the quality of that witness's perhaps is only a reflection of

24 the trauma they suffered that day is frankly shattered, and it cannot be a

25 safe basis upon which to convict Drago Josipovic or anyone else.

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1 There is here no doubt the Trial Chamber have found conclusively

2 that those two individuals were not there, and the evidence independently

3 proved it conclusively. And in the face of that, we don't shrink from

4 saying that we have satisfied the high test that the Rules of this

5 Tribunal place upon me, when appearing in an appellant capacity, to

6 satisfy this Chamber that no reasonable tribunal could conclude that that

7 evidence was a reliable and safe basis upon which to convict.

8 At its height, one could say that it might be true, but I ask the

9 question rhetorically: Having seen those transcripts, can anyone say that

10 her evidence must be true in relation to Josipovic or to use the words,

11 "Can you be satisfied beyond a reasonable doubt that having made a

12 fundamental error in relation to two people she knew well, why on earth

13 should she be right in relates to a third?" And the only distinction

14 being that unlike the other two, Drago Josipovic was in the village that

15 day, but that only establishes it as a possible candidate for being

16 there. It doesn't help prove that he was there. All it means is that

17 he's unable to prove, with the compelling evidence that was available to

18 Katava and Alilovic, that he could not have been there because he was

19 either in Holland or in Vitez.

20 I say, will turn later to what the additional evidence

21 demonstrates. There is very real doubt about the presence of Josipovic

22 which the Trial Chamber did not conclude was there, only concluded that

23 the Defence had not proved was not there. That's rather turning the

24 burden of proof on its head.

25 We say that so far as the evidence of EE is concerned, it was

1 rejected rightly in relation to Josipovic. It was rejected rightly in

2 relation to Katava and, as a consequence, it cannot be used as the safe

3 basis upon which to convict. It is dangerous evidence. Evidence from

4 which a miscarriage of justice has traditionally, in the history of

5 criminal courts, been known to flow from.

6 There is really nothing more dangerous than an identifying witness

7 who can be demonstrated to make mistake after vital mistake in pointing

8 out who is present. That is what we have here in this case, and I repeat,

9 I make no apology for it, without EE, there's no case on this murder

10 count, and it is an unsafe basis upon which to convict.

11 It also has an impact on the conviction on Count 1, but I accept

12 it is not the only evidence on Count 1. But if you look at paragraph 810

13 of the Trial Chamber judgement, you will see how it is incorporated into

14 the evidence in Count 1 and one, perhaps, cannot say without it what

15 conclusion the Court would have come to in relation to that count. I

16 think I may have had -- may have a wrong reference. 810, sorry. It's 810

17 where the Trial Chamber incorporates the evidence of EE into the basis of

18 conviction on Count 1.

19 Now, so far as the resolution of the appeal is concerned, if my

20 submissions are well-founded in relation to EE, then it is not a case for

21 a retrial. This is a case where I have satisfied the Appeal Chamber that

22 no Trial Chamber, properly directed, could accept that evidence and

23 therefore the convictions should be quashed. And that is what we submit

24 is the only proper outcome when this evidence is analysed.

25 I see the time is just coming up to 11.00. I'm now going to move

1 to an assessment of AT.

2 JUDGE WALD: I think this is a good time then to take our break

3 until 11.30 and then you'll have another I think it's 40 -- yeah, 40

4 minutes, I think, to complete your presentation. So we are adjourned

5 until 11.30.

6 --- Recess taken at 10.58 a.m.

7 --- On resuming at 11.37 a.m.

8 JUDGE WALD: Mr. Clegg, you can resume.

9 MR. CLEGG: I now turn to the additional evidence of AT.

10 The first matter to resolve is the proper ambit of the Appeal

11 Chamber's ruling on admissibility, dated the 29th of May of this year. We

12 have proceeded upon the basis that the Appeal Chamber admitted the

13 evidence of AT, under Rule 115, in the case of Vlatko Kupreskic, and

14 therefore, as the Appeal Chamber said in paragraph 17 of their decision,

15 "the other parties are entitled to avail themselves of it." Those words,

16 we submit, are perfectly clear, and we have proceeded upon the basis that

17 we who represent Drago Josipovic are entitled to avail ourselves of the

18 evidence of AT that has now been admitted before this Appeal Chamber.

19 The Prosecution take a different view. They have submitted that

20 your decision ought to be viewed restrictively, and that the decision in

21 relation to the application on behalf of Drago Josipovic, which is in

22 paragraph 9 of your decision, namely, that the requirement of credibility

23 was not made out and therefore AT's evidence was not reasonably capable of

24 belief, fail to satisfy the test of 115 so far as Josipovic is concerned.

25 The stance of the Prosecutor is, to some extent, a late stance,

1 because following the decision, we applied to the President of the

2 Tribunal for access to the closing brief in the Kordic case that was filed

3 confidentially by the Prosecution in that case, obviously because it could

4 impact on the assessment of the evidence of AT in this appeal.

5 In responding to that application, the Prosecution did not invite

6 the interpretation of the decision that they are now putting forward

7 somewhat late in the day, but indeed conceded that relevant parts of the

8 Kordic closing brief could be revealed to the Defence, as it has been,

9 presumably for incorporation in my submissions before you today.

10 So we have a position --

11 JUDGE WALD: Excuse me, Mr. Clegg. Do you have to go into private

12 session for any of your discussion of AT testimony?

13 MR. CLEGG: I will do --

14 JUDGE WALD: Okay.

15 MR. CLEGG: -- but I think I'm all right at the moment.

16 JUDGE WALD: All right. Go ahead.

17 MR. CLEGG: The first matter to be resolved is whether the words

18 contained in paragraph 17 of the decision do entitle the Defence to rely

19 upon the evidence of AT in this appeal.

20 What the Appeal Chamber ruled was that other parties are entitled

21 to avail themselves of it. The word "other" must embrace parties that are

22 not included in the application that was then being considered in that

23 paragraph and must embrace Drago Josipovic. Such an approach would be

24 consistent, we submit, with common sense. Because if the evidence is to

25 be admitted before the Appeal Chamber, as it has been in the appeal of

1 Vlatko Kupreskic, then it is really absurd that, in considering an appeal,

2 the Appeal Chamber would be entitled to hear from the Prosecutor as to the

3 evidence of AT and its impact - because it's admissible inter partes

4 between them and Vlatko Kupreskic - but that I wouldn't be able to say

5 anything about it on behalf of Drago Josipovic, even though the very

6 evidence that is relevant is being spoken about by other parties to the

7 appeal.

8 The position is similar to what one might have before a Trial

9 Chamber. One could envisage a situation where evidence could be ruled

10 inadmissible insofar as one defendant was concerned - and he would not be

11 allowed to call that evidence because it wasn't relevant to any matter so

12 far as his trial was concerned - but it could be relevant in relation to a

13 second defendant. If admitted before the Trial Chamber, it becomes

14 evidence in the trial and all parties may comment on it. All parties

15 would be entitled to ask the witness questions, and all parties could seek

16 to adopt what the witness said in the course of their closing

17 submissions.

18 So we submit that the door is already open as a consequence of the

19 Appellate Chamber ruling on the 24th of May as expressed in paragraph 17,

20 in fact, I think it's the 29th of May. I correct myself. As specified in

21 paragraph 17 where it says that other parties are entitled to avail

22 themselves of it, "it" being the evidence of AT.

23 The matter was first raised by the appellant in his supplemental

24 appellant's brief filed on the 14th of June at paragraph 211 and also

25 dealt with in the brief of argument filed under Rule 113 on the 18th of

1 July at paragraph 4(1) going through to 4(5). The alternate submission

2 that I advance with due diffidence before Appeal Chamber is that the

3 decision made on the 29th of May was insofar as the decision concluded

4 that the evidence of AT was not reasonably capable of belief was decided

5 per incuriam and, upon reflection, is a decision which cannot be sustained

6 and that the Appeal Chamber, of course, has the power to remedy any

7 decision that it has made in error in the past.

8 The decision that the evidence was not capable of belief was not

9 made against a background of the Appeal Chamber being apprised of the

10 detail of the evidence of EE that I have taken the Appeal Chamber through

11 today demonstrating how the witness was acknowledged to be wrong in

12 relation to two witnesses she had asserted 100 per cent certainty about

13 when identifying at the scene.

14 Secondly, the Appeal Chamber did not know, because it had not been

15 disclosed, that in the -- and I just pause, I think we ought now to go

16 into closed session.

17 JUDGE WALD: Go into private session now.

18 MR. CLEGG: Private session.

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10 JUDGE WALD: Go ahead.

11 MR. CLEGG: The evidence of CA has been admitted by the Appeal

12 Chamber, and the witness speaks of a relevant telephone call from DD. The

13 Prosecution has served a statement from DD of which we acknowledge and is

14 relevant and, in fairness, ought to be admitted before a Appeal Chamber,

15 and that evidence is to the effect that no such telephone call was made.

16 The importance of the telephone call is really twofold.

17 Firstly, it may, depending on its contents, cast doubt upon

18 whether DD few the fate of her husband and son in the aftermath of the

19 massacre in Ahmici. And now, more significantly, the fresh statement

20 served by the Prosecutor has identified a lie by a witness called at

21 trial. Either CA is lying and DD phoned her, or DD is lying when she says

22 she didn't.

23 There is no way that the Appeal Chamber can resolve that issue

24 because you haven't heard the witnesses, and one of them must be lying.

25 If DD is lying, then it must affect her credit. Her credit would be

1 highly material to the acceptance of her evidence by the Trial Chamber.

2 If the Trial Chamber knew that she was lying about that phone call, it may

3 well cast doubt on the remainder of her evidence. It might be that in the

4 light of that evidence, they would have resolved their conclusion as to

5 her in a different way.

6 Finally, and very briefly, there is an appeal against sentence.

7 We do submit that the sentence of 15 years is excessive in all the

8 circumstances in this case bearing in mind particularly the role and

9 standing of Josipovic as found by the Trial Chamber, his voluntary

10 surrender to this Tribunal, and the assistance and help he gave on the

11 evidence to Muslim families, particularly that of CA, on the day of the

12 massacre himself.

13 Unless I can assist the Chamber any further, those are our

14 submissions.

15 JUDGE WALD: Thank you, Mr. Clegg. Any questions? Okay. Thank

16 you.

17 We will now begin with the presentation of Mr. Santic on appeal.

18 Mr. Pavkovic, I think we start now and hear you until 1.00 which will be

19 roughly half of your allotted time, take our lunch break, and then you'll

20 have 45 minutes after. You'll have 45 minutes, 45 minutes or however it

21 comes out afterwards. So we'll go ahead and have you begin until 1.00.

22 MR. PAVKOVIC: [Interpretation] Thank you.

23 Your Honours, perhaps it would be useful for better understanding

24 of the Defence of Vladimir Santic to remind ourselves of certain facts

25 because it turned out in the Prosecutor's brief that certain things need

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1 to be clarified.

2 The first thing we want to emphasise is the position of the

3 appellant after he withdrew parts of his appeal on the 25th of October,

4 year 2000. Of course a certain doubt could have appeared as to what

5 arguments made in the appeal remain relevant, and in our submission of the

6 12th of June, year 2000, the Defence supplemented our appeal which I

7 believe now presents a clearer picture of our arguments.

8 However, it is a fact that the Prosecutor still remains doubtful

9 as to what remains current in the position of the Defence, and I must

10 specify that it is only section 3 of our appeal. It is relevant though,

11 and I will elaborate it, namely the claims made in paragraph 1.2 which is

12 the relationship between the accused and the Jokers, and the appellant

13 will try to clarify this link. Also relevant remains what is stated in

14 item 2 of the appeal and here, I agree with the Prosecutor that also

15 relevant remains the content of item 3.

16 Now that we have clarified what remains to be discussed and what

17 arguments are still relevant after the withdrawal of part of the appeal on

18 the 25th of October, year 2000, I will now proceed in the sequence that I

19 have explained.

20 Your Honours, I will beg for your understanding when I ask for us

21 to go into closed session in parts of my address perhaps more so than

22 others have done today. I will avoid repetition in comparison to what my

23 learned colleague Mr. Clegg has said, because he really exhaustively

24 analysed pieces of evidence, and since my client and his client played the

25 same role, according to the indictment, I will, as I said, avoid

1 repetition.

2 In paragraph 827 of the judgement, the Trial Chamber determines it

3 is brief so I will quote it:

4 "The accused played the role of the commander of the

5 military police unit and the commander of the Jokers and

6 in that capacity, he passed on the orders of his

7 superiors to his men and besides that, his presence on

8 the scene of the attack is seen as an additional

9 encouragement."

10 In the understanding of the Defence, as we have stated in our

11 appeal, these conclusions reached by the Trial Chamber based on the

12 derived evidence made -- presented by the Prosecution is wrong. Here in

13 our appeal in item 1.1, we elaborated in detail where the error lies and I

14 will not go back to this part.

15 The central issue of this entire position of the defendant is the

16 following: Was he, indeed, as determined by the Trial Chamber, the

17 commander of the attacking forces in Ahmici, and it is doubtless that the

18 attack took place by the military police. So it is essential to look at

19 the basis for this determination by the Trial Chamber.

20 It is important to note that there is no piece of evidence or

21 testimony to corroborate this allegation of the Prosecutor. What do the

22 witnesses called by the Prosecution and accepted by the Trial Chamber

23 actually say as to the fact that the defendant Santic was the commander of

24 the military police units in the attack against Ahmici? All the witnesses

25 that have been heard actually speak about their acquaintance with the

1 defendant, that is, the accused. They also speak about his formal

2 status. But before the events and after the events, as far as the

3 relevant period is concerned, that is the 16th of April, 1993, and the

4 role of the accused as seen by the Trial Chamber, these witnesses do not

5 say a word.

6 Nobody speaks about his status in the relevant -- at the relevant

7 time, that is the 16th of April, not even the witness whose statement was

8 commented upon by my colleague and whose testimony is of very contestable

9 value. Even she does not identify the -- even though she does identify

10 the accused, she does not speak about his status.

11 We can see from the judgement that the Trial Chamber paid special

12 attention to the testimony of Witness AA, and there are several references

13 to this testimony in paragraphs 88, 134, and 447. This witness, I should

14 like to remind you, only confirmed the accused was a member of the

15 military police. However, what is very important to stress here is that

16 this witness, or so it seems from the judgement made by the Trial Chamber,

17 was very important but he left the area in question in April 1993.

18 So it is difficult to conclude from this testimony what the role

19 of the accused was in the relevant time, that is, the 16th of April. That

20 he left the area in April 1993 is evident from paragraphs 3 of the

21 judgement -- excuse me, from the transcript page 3775, pages 18, 19.

22 So the conclusion is absolutely wrong; however, this could be

23 assumed, this could be an assumption made on the basis of the position of

24 the accused before and after the events, but it could not be firmly

25 established what his position was at that given moment, let alone the fact

1 that this testimony of Witness AA, judging by the interpretation given to

2 that testimony in the judgement, its authenticity is also questionable,

3 and we have explained this in our appeal.

4 What was the real status of the accused on the 16th of April,

5 1993, which is the only thing relevant? Not the witnesses Sulejman

6 Kavazovic or Zaim Kablar, neither of these witnesses could say anything

7 about this. Both of them speak about events before or after the relevant

8 time. One of these witnesses confused the accused with another person,

9 and we have Exhibit D5/6 which demonstrates that this witness is not

10 reliable, because he spoke about a completely different person who bears

11 the same name as the accused. Another witness who speaks to the link

12 between the accused and the Jokers, as established in the judgement,

13 actually says the contrary. He says that at that time the unit was

14 commanded by Pasko Ljubicic and not the accused Vladimir Santic.

15 The judgement also proceeds from certain statements which were

16 found by an expert heard during the proceedings, and that is military

17 expert Dzambasovic - and we have no objection to that - but he spoke about

18 the assumed position of the accused. This witness did not speak to the

19 actual events. This witness was to clarify certain military issues and

20 explain a certain military doctrine, and thus this witness can by no means

21 confirm the allegations of the Prosecution, cannot be used for that

22 purpose, and his testimony cannot be used as a basis for the conclusions

23 made by the Trial Chamber. I will also speak about another witness and

24 Prosecution Exhibit 390.

25 From the statements and testimonies of all the witnesses I have

1 mentioned so far, it cannot be concluded beyond any reasonable doubt, as

2 was done by the Trial Chamber, that the accused had the actual status of

3 commander of the units that carried out the attack in Ahmici on the 16th

4 of April, 1993, and not a single witness who made the identification

5 speaks about the status.

6 Out of all the witnesses who have been heard with regard to this

7 circumstance said that the accused seemed to have a commanding position.

8 And I should like to remind you here of Exhibit D16, which doubtlessly

9 demonstrates that the commander at the time was Pasko Ljubicic. It is not

10 the only exhibit. There are many other exhibits which clearly show who

11 was the commander at the time.

12 With all due respect, Your Honours, I would also like to draw your

13 attention to the judgement rendered by this Tribunal, IT-95-17/1-T, which

14 determines that the commander of the Jokers, so in contravention to the

15 conclusion reached by this Trial Chamber, was Anto Furundzija. In the

16 very same judgement, this circumstance that he was the commander is taken

17 as an aggravating circumstance for the sentencing. We also had the

18 testimony of Witness GG who confirmed that the commander of the Jokers was

19 Ante Furundzija.

20 When it comes to the order that the Trial Chamber discusses,

21 concluding that the accused issued orders in his capacity of a commanding

22 officer to his subordinates, no such order has been presented before this

23 Court. And then we have a real reason to ask: What was the basis on

24 which the Trial Chamber based its conclusions? There are no orders issued

25 by Santic regarding the attack on Ahmici.

1 If we deal very briefly with this issue, and we have to do this

2 just to go to what has been said in the Kordic judgement, in paragraph

3 610, it is stated that after a political decision had been made -- perhaps

4 I could just very briefly ask you to go into private session, just for a

5 very short time, to deal with this particular issue.

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22 MR. PAVKOVIC: [Interpretation] Of course, when I claim that there

23 is no evidence, that no evidence has been adduced before the Trial Chamber

24 as to any orders that the accused Vladimir Santic may have issued, in

25 light of the claims by the Prosecution and the conclusions which I deem to

1 be wrong drawn by the Trial Chamber, I have to stress that it is quite

2 understandable. And if we -- when we go on to look at the testimony by

3 Witness AT, it is quite clear that these orders do not exist. They could

4 not have been produced before the Court because the accused could not have

5 issued any such orders because he was not in the role of a person who

6 would be entitled to issue such orders.

7 I have to remind you that certain orders were produced before the

8 Trial Chamber, and they were registered as Defence Exhibits D36/2, D37/2,

9 and D38/2. Witness CE [as interpreted] was heard before the Trial Chamber

10 and he explained the nature of these orders.

11 THE INTERPRETER: Correction: It is Witness CI.

12 MR. PAVKOVIC: [Interpretation] But these orders have nothing to do

13 with this accused and these orders do not relate to him.

14 So when we take all this that I have just spoken about into

15 account, and this is the only thing that has been -- the only things that

16 have been presented to the Trial Chamber, then we are entitled to ask

17 ourselves the following question: whether, on the basis of these witness

18 statements, one can draw a reasonable conclusion that the accused was,

19 indeed, the commander of the military police in the action in Ahmici; and

20 whether the accused was the commander of the Jokers units, which is

21 mentioned quite often. There is no other evidence. I have presented them

22 very briefly. Some of this has been presented in our appellant's brief,

23 and this oral argument is merely a supplement to what has been written out

24 in our appeal.

25 The conclusion, then, is that the Trial Chamber reached wrong

1 conclusions, and that nobody would be able to determine beyond reasonable

2 doubt on the basis of this evidence that Vladimir Santic had a commanding

3 role, the role of the commander of all the forces taking part in the

4 attack on Ahmici village.

5 Of course, the Defence wishes to clarify the actual role played by

6 Vladimir Santic in these events. To this end, we will be referring to the

7 testimony of Witness AT, and I would now like to ask for your indulgence

8 once again, I would like to go into private session as is usually the case

9 when we discuss testimony by Witness AT.

10 JUDGE WALD: Yes, we'll go into private session.

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10 JUDGE WALD: Go ahead.

11 MR. PAVKOVIC: [No translation]

12 THE INTERPRETER: The microphone, the microphone is not on.

13 MR. PAVKOVIC: [Interpretation] I apologise.

14 The Defence wishes to reiterate, to repeat what has been said. So

15 this is an aspect of the same problem of the status of the accused, his

16 commanding role as it has been established by the Trial Chamber. In

17 section 2 of the appeal, the Defence has stated that the Appeals Chamber

18 has made a mistake when assessing his commanding role when he was not

19 notified that his alleged status will be used as aggravating

20 circumstance. So he was not able to contest these facts during the

21 trial.

22 We're not talking about any errors on the part of the Defence

23 counsel which would be outside of the limits of the due diligence. This

24 is a completely different issue because there is nothing in the indictment

25 up until that time that would indicate that the accused Santic would be

1 treated as a commander. Quite the contrary. All the allegations against

2 him and the others were based on his personal responsibly, individual

3 responsibility defined in Article 7(1) of the Statute.

4 But before the end of the proceedings but after the presentation

5 of the evidence, in his final brief, the Prosecutor indicated that his

6 status as the commander will be relevant, then up until then, the Defence

7 did not adduce any evidence relating to the status of the commander for

8 one very simple reason, because it was not relevant. So only after the

9 end of the presentation of evidence, the Prosecution stressed this and

10 stressed that the role of the accused, that the responsibility of the

11 accused is much more serious because he had a commanding role.

12 This was the first notification that was received and it was

13 received only after the end of the presentation of evidence. When this

14 notification was received, it was too late for the accused to present any

15 evidence that might cast some doubts on the allegations. Since he had not

16 been notified in a fair manner and since he had not been given an

17 opportunity to defend himself against these allegations that he was in the

18 command, the Defence deems that the sentencing was in contravention of

19 Article 21 (4)(a) of the Statute. We would like to remind you of the fact

20 that in the indictment which attached as Annex A to the judgement treated

21 the accused -- or rather does not treat the accused as a person with a

22 higher degree of culpability. It merely states that he was an HVO soldier

23 in Vitez. This is a quote that he was an HVO soldier in Vitez. I'm

24 quoting from the indictment.

25 In sections 2 and 3 of the appeal, the Defence presented, in

1 corroboration of these claims, regarding the prompt notification and the

2 affording the opportunity to adduce evidence to refute the allegations.

3 We presented many views that are contained in the judgement. I will not

4 repeat them now. I would just like to refer you to section 2.3 of my

5 appeal.

6 Now, I would like to merely stress that all the views contained in

7 the judgement and in our -- also I would like to refer to many national

8 legislations, all these instruments indicate that the accused should have

9 been told about this. He should have been informed in order to afford him

10 the opportunity to defend himself against this. I would like to remind

11 you that the international covenant on human and political rights and the

12 Statute of the International Court used the same language, both

13 instruments used the same language guaranteeing the right to the accused,

14 let me quote, "That he will be informed quickly, promptly and fairly in

15 the language he understands about the nature of the accusations against

16 him."

17 The nature of the accusations includes all the relevant factors

18 and facts and, of course, all those factors which are relevant for the

19 sentencing. And it is precisely in the sentence that had been imposed on

20 the accused that the weight of the commanding role is stressed. But

21 because he was not given the opportunity to defend himself, the sentence

22 imposed on him was capricious and unfair.

23 Therefore, the evidence that he was or was not a commanding

24 officer is relevant for any part of the trial because it was only obtained

25 after the trial. In the absence of the notification that a heavier

1 sentence would be imposed if he were established to have been a commander,

2 it was not impossible to defend himself against him, and he only became

3 aware of that was in the final brief of the Prosecution when the

4 Prosecution requested a higher sentence to be imposed because of his

5 commanding role.

6 There is nothing wrong with the Rules of Procedure and Evidence as

7 they stand now, but it is possible that the situation as it existed up

8 until 1998 led to these errors. That was a time when it was decided that

9 any evidence pertaining to the sentence were to be adduced later.

10 To illustrate these claims and to illustrate how important it is

11 to notify, to inform the accused that he would be treated in this manner,

12 I will use the following story or the following metaphor: The accused was

13 like a pilot flying blind without any navigational equipment, any charts.

14 He was unable to prepare himself because he did not have the appropriate

15 information.

16 It would have been easy for the Prosecution to inform the Defence

17 that they would be seeking a heavier penalty because of the commanding

18 role of the accused, and if it would have been done in the course of the

19 presentation of the case, both sides would have been able to address the

20 issue and the Trial Chamber -- and the Appeals Chamber would now have to

21 decide this issue once and for all.

22 Your Honours, if I'm right, I still have five minutes --

23 JUDGE WALD: That's correct.

24 MR. PAVKOVIC: [Interpretation] -- in this section of my

25 presentation since. In my second part, I would like to address a whole

1 new issue that has to do with sentencing. With your permission, it is

2 now, of course, up to your judgement whether we should have a break now

3 and then if, perhaps, I could continue presenting our views on the

4 sentencing after the break.

5 JUDGE WALD: I think that's an excellent suggestion,

6 Mr. Pavkovic. We will break for lunch now. We will return at 2.15 after

7 which, I think, you will have approximately 40 minutes left to complete

8 your argument. We stand adjourned until 2.15.

9 --- Luncheon recess taken at 12.55 p.m.

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2 JUDGE WALD: Good afternoon. We're back in session and

3 Mr. Pavkovic has, by my account, around 40 minutes left to go, but

4 Mr. Abell wants to raise something very briefly, I understand.

5 MR. ABELL: Your Honour, I do, indeed, on behalf of Vlatko

6 Kupreskic. Do, please, forgive me for interrupting but I wish to raise

7 this matter, if I may. Your Honours will remember that yesterday -- it

8 may be sensible to be in private session for a moment.

9 JUDGE WALD: All right. Let's go into private session.

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12 [Open session]

13 MR. PAVKOVIC: [Interpretation] Your Honours, the accused Vladimir

14 Santic has had a strict sentence imposed on him. It is too strict and

15 unfair. The accused Santic has been sentenced to 25 years in prison for

16 the crime of persecution. That sentence is two times longer than any

17 sentence imposed on anyone in this group. It is double the sentence that

18 was passed with respect to the accused Josipovic for persecution.

19 What are the reasons for imposing such a strict, unfair sentence?

20 That was explained by the Trial Chamber in paragraph 862 in the

21 judgement. It is not very long, Your Honours, so by your leave I'm going

22 to read that part of the text. However, I wish to draw your attention to

23 the following as well: From now on, I shall be drawing your attention to

24 circumstances that were of decisive importance in sentencing. I wish to

25 show that the Trial Chamber made a mistake in respect of this sentence.

1 Then there's also yet another group of circumstances that we discussed

2 here in this court. The Defence provided some evidence; however, no

3 mention was made of this in the judgement, and the Defence believes that

4 this is of relevance in terms of adequate sentencing.

5 Finally, I shall speak of those circumstances which, by the very

6 nature of things, when the judgement was passed, were not mentioned at all

7 and were yet important. Had this been known at the time, in the opinion

8 of the Defence, this certainly would have contributed to a proper decision

9 on sentencing.

10 The Trial Chamber believed that on the 16th of April, 1993, the

11 participation of my client was very serious, and therefore they say in

12 paragraph 862, and I quote:

13 "Concerning the conviction on the persecution count,

14 Vladimir Santic's role was most serious since he was a

15 commander who assisted in the strategic planning of the

16 whole attack. He also passed on orders from his

17 superiors to his subordinates which amounted to the

18 reissuing of the orders that were illegal in the

19 circumstances. This role renders particularly grave his

20 participation in the offences committed. Furthermore, he

21 played an active role in the killing of Bosnian Muslim

22 civilians in Ahmici, the destruction of Bosnian Muslim

23 homes and property, and the expulsion of Bosnian Muslims

24 from the Ahmici/Santici region. In particular, Vladimir

25 Santic participated in the attack on the Puscul house,

1 during which the house was burned down, Muzafer Puscul

2 was killed, and the family was expelled from their home

3 after having been forced to witness the murder of Muzafer

4 Puscul. The attack was launched in the early hours of

5 the morning, allowing the victims no opportunity

6 whatsoever to escape."

7 End of quotation.

8 As this important part of the judgement shows, the Trial Chamber

9 assessed that he played a very important role and therefore passed such a

10 severe sentence.

11 Your Honours, there is no doubt that everything I -- that

12 everything I read, everything contained in paragraph 862 merits a severe

13 sentence, of course, if these facts were proven according to standards

14 that were already adopted at this Tribunal, that is to say, that they were

15 proven beyond reasonable doubt.

16 When I previously spoke about the true role of my client in these

17 events, I showed you that the evidence is not conducive to the conclusions

18 reached by the Trial Chamber, and I shall present arguments with respect

19 to each and every one of these matters that will further corroborate

20 this. There is no doubt that the gravity of the crimes does merit severe

21 punishment as this Tribunal has already decided on various occasions, and

22 when that was so, nobody could object. However, my client did not play

23 such a serious role in these events, and this sentence is not

24 correspondent to his role, and I already spoke of Witness AT's statement.

25 Once again, I wish to highlight a few points. The true role of

1 the accused in these events was shown by Witness AT because apart from his

2 testimony, we have no other evidence. Witness EE did not speak about this

3 in a way which would -- actually, when we go back to her statement, we

4 will see that she speaks of the murder of her husband in a different way

5 and that is recognised by the Chamber as well.

6 I would now like to move into private session, please.

7 JUDGE WALD: Private session.

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8 [Open session]

9 MR. PAVKOVIC: [Interpretation] So the very fact that his presence

10 was confirmed in front of the house of Witness EE supports the assertion

11 that that is not the place where a commander could be.

12 The judgement also asserts that Vladimir Santic took part in the

13 strategic planning of the entire attack, and that that is one of the

14 circumstances that makes his role a serious one. There is not a single

15 witness to prove that. There is not a single document that would be

16 conducive to such a conclusion.

17 I quoted the judgement here, the Kordic judgement, that is, and it

18 can be seen where the strategic planning actually took place. Witness

19 Dzambasovic who testified in this case before the Trial Chamber said that

20 even if it were true that the accused was company commander on that level,

21 no strategic planning takes place, just as the judgement said, and this is

22 taken as an important aggravating circumstance.

23 The judgement, furthermore, states - and this was also taken as an

24 aggravating circumstance - that the accused took part in the killing of

25 Bosnian Muslims, the destruction of houses, property; and the Trial

1 Chamber, in the view of the Defence, uncritically espoused these positions

2 as expounded in the judgement. There is no doubt that had the Prosecution

3 had proof of the participation of the accused in the killing of Bosnian

4 Muslim civilians and the destruction of their houses, they would have

5 acted accordingly.

6 Therefore, when the Prosecutor did not charge the accused with any

7 other specific crimes except for that which is alleged in the case of the

8 Puscul family, that means that there was no evidence in this respect, and

9 that would make this part of the judgement invalid. Of course, if this is

10 not valid, then this has to affect the sentence imposed. This is a very

11 serious circumstance and it has special significance.

12 Another circumstance that is taken as an aggravating circumstance

13 in the case of this accused is the following assertion: It is stated in

14 the judgement specifically that the accused took part in the attack on the

15 Puscul house; that it was burned down then and that that was when Muzafer

16 Puscul was killed.

17 If we were to accept that Witness EE's statement is completely

18 true, if we were to accept that everything she said was accurate, then

19 this assertion would be wrong, because this same witness says that she did

20 not see the murder of her husband. She saw that Muzafer was taken behind

21 the shed, and after that she heard shots. So there are no grounds for the

22 judgement in this section, not even in the testimony of Witness EE.

23 If we were to look at all of this, the Defence is convinced that

24 the Trial Chamber made a mistake in evaluating all these facts. There is

25 no doubt that the statement of Witness AT shed light on this role, and I

1 repeat: Had the Trial Chamber been familiar with this statement before,

2 it would have undoubtedly led to the imposition of an adequate sentence.

3 Just another thing. I should like to draw your attention, Your

4 Honours, also to the circumstances which existed which the Defence had set

5 out to prove; however, there is absolutely no trace of them in the

6 judgement. We don't know whether they were given any evaluation, if any,

7 and they should have been evaluated, under Rule 85, according to which any

8 information which would be helpful to the Trial Chamber in deciding on a

9 sentence has to be taken into consideration. Thus, no account has been

10 taken.

11 There was a witness before this Court, a Muslim named Kablar, who

12 availed himself, as he said, of that opportunity to thank the accused

13 Santic, to thank him for his attitude. And they had met for several

14 days. I think that circumstance should have been taken into account in

15 sentencing, which I don't believe the Trial Chamber did.

16 Another thing that failed to be taken into account was the earlier

17 conduct of the accused before all the relevant events. The Defence

18 presented evidence such as D14/6, from which it transpires clearly that

19 the accused had no criminal record, had never been convicted of anything,

20 and his behaviour was exemplary; there is evidence of that.

21 Also not taken into account were the statements of Muharem

22 Pripoljac and a person named Cengic, Muslims who spoke about Santic as a

23 very decent man, devoid of any prejudice, be it religious or ethnic; a

24 person with great ethnic tolerance, a person who frequently helped them.

25 There are also Exhibits D16 and D20 who present the accused Santic in the

1 time before the relevant events in the same light. The Trial Chamber

2 heard witnesses Brkovic and Kocaj as well. All these things which we

3 believe to be very relevant had not been given any weight at all.

4 Another circumstance which was prominent in many judgements made

5 by this Tribunal is the conduct in detention, and we believe it to be

6 relevant in the case of our defendant as well. His behaviour is

7 exemplary. He observes all the rules of the Detention Unit and

8 conscientiously fulfils his obligations, such as they are. He also

9 continues to care for and support his family even from detention. It is

10 also no secret that the accused is ill.

11 Another circumstance which Your Honours have insight into and

12 which deserves to be properly evaluated is that the act was committed

13 reluctantly. I think that in speaking of this it is very important to

14 stress one fact: As my learned friend Mr. Clegg said, this trial would

15 not be taking place for his defendant and for mine as well were it not for

16 one witness, Witness EE.

17 I must ask you to allow me to go into private session for just a

18 couple of sentences, if possible.

19 JUDGE WALD: Go ahead. Just hang on for one second.

20 THE INTERPRETER: Microphone for Judge Wald.

21 JUDGE WALD: Just wait until we get into private session.

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5 [Open session]

6 JUDGE WALD: I was saying the Prosecution's case will begin, and

7 let me just give you a notion of the time table. I think that we would go

8 now from approximately 3.10, so for an hour for the Prosecution, and then

9 take the customary break which will be approximately a 20-minute break

10 from 4.10 to 4.30, then continue on to 5.15. That will give the

11 Prosecution an hour and 45 minutes into its case today. And then we'll

12 resume in the morning. So for your planning purposes, I wanted you to

13 know that. So you can begin.

14 MR. YAPA: Your Honours, it has come to our turn after a long

15 wait. If I may briefly indicate to why Your Honours as to how we wish to

16 proceed during the time allocated from the original allotment of time,

17 that is the 1 hour 45 minutes.

18 My colleagues, Ms. Norul Rashid and Mr. Fabricio Guariglia will

19 deal with two matters, two or three matters. That is in respect of the

20 standard of review submissions made by Mr. Clegg, and in respect of the

21 additional evidence standard of review, also submissions made by him.

22 Those will be dealt with my Ms. Norul Rashid. And the question of the --

23 Witness AT material, it will be Mr. -- Ms. Rashid will deal with that

24 respect as well.

25 On the standard of review of the sentence, general submissions

1 that have been made will be dealt with by Mr. Fabricio Guariglia. And if

2 there is time remaining, Ms. Norul Rashid will deal with the substantive

3 appeal of Drago Josipovic.

4 I thank you Your Honours.

5 JUDGE WALD: Ms. Rashid, we're happy to hear you.

6 MS. RASHID: May it please the Court.

7 Your Honour, at this stage of the Prosecution's response, I will

8 be addressing the Court on the standard of review that is applicable at

9 the stage of the additional evidence. The Prosecution will forward

10 response to the submissions made by counsel for Drago Josipovic on behalf

11 of the rest of the counsel. The Prosecution will also address the Court

12 on what it thinks is the appropriate standard to be applied.

13 I propose to structure my arguments as follows, Your Honour: I

14 will first of all highlight very briefly the contentious and the

15 nondisputed areas between the Prosecution and the appellants, and then I

16 will highlight the approach that has been adopted by the Appeals Chamber

17 so far in applying the test to be adopted at the hearing stage.

18 The Prosecution would then make certain submissions on what we

19 think is the appropriate standard or the test to be applied by the Appeals

20 Chamber of this Tribunal and I will, in the course of my submissions, very

21 briefly reply to some of the appellant's arguments that they have raised

22 as well.

23 Your Honour, with regard to the remedy that the appellants are

24 seeking in relation to this additional evidence, let us be clear as to

25 exactly what they're asking. They want a new trial; they want a rehearing

1 of all the issues and all the evidence that has been adduced at trial on

2 the basis that they have these few pieces of additional evidence.

3 The issue that we have to resolve at this appeal proceeding is

4 what is the test to be applied by the Appeals Chamber in this Tribunal

5 when deciding whether to set aside convictions and order a new trial on

6 the basis of additional evidence.

7 With regard to the contentious areas, Your Honour, we note that

8 they are -- to the nondisputed areas, both parties agree that there are

9 two stages in the determination of the impact of additional evidence: the

10 admissibility stage, where you have the test under 115(A) and 115(B), and

11 then you have the standard to be applied at the hearing stage. What we

12 both are in agreement with is that the standards applicable at both stages

13 are different.

14 What is apparently in contention are that in determining weight at

15 the hearing stage, the appellants argue that the Appeals Chamber is not in

16 a position to consider issues of credibility. They have also advocated

17 for a lower standard; they've asked Your Honour to use the word "might"

18 or "could." And because of these reasons, they argue that inevitably or

19 invariably the Appeals Chamber must always remit the case back to the

20 Trial Chamber because you're not in a position to resolve conflicts of

21 facts or opinion.

22 The Prosecution does not accept that this is the correct or

23 appropriate position for the Appeals Chamber in this Tribunal to adopt,

24 and I will explain why.

25 Counsel has mentioned that the Appeals Chamber has used the word

1 "would" and "could" interchangeably and submits the fact that your

2 previous decisions are of little assistance to what -- to the test to be

3 applied at the hearing stage. What is important to note is that these

4 decisions that have been rendered by the Appeals Chamber were rendered at

5 the admissibility stage. The Appeals Chamber has, in fact, laid down the

6 test for the hearing stage.

7 I will just read from two of your decisions, dated the 26th of

8 February, 2001 and a decision dated the 11th of April this year. This is

9 what you said:

10 "The additional evidence is admitted without prejudice

11 to a determination of the weight to be afforded to the

12 proposed evidence. The Appeals Chamber is correct to

13 conclude that the only issue left to be determined at

14 this stage of the appellate proceedings is weight."

15 So the real mystery here is not the definition of "would,"

16 "could," or "might," but what is weight.

17 It would appear from the Appeals Chamber decision that the concept

18 of weight involves an assessment of the credibility which we believe

19 involves assessing the nature, the character, and the probative value of

20 the additional evidence. But this is still not the standard or the

21 ultimate test, Your Honour.

22 This approach of the Appeals Chamber is reflected in all your

23 previous orders made in relation to the additional evidence that has been

24 admitted so far for the purposes of this appeal. I would just highlight a

25 few of the additional -- pieces of additional evidence that have been

1 admitted.

2 Your Honour will recall the admission of the additional statement

3 of Witness CA. Your Honour said that the evidence was submitted into

4 evidence without prejudice to a determination of the weight to be afforded

5 to the statement. The Prosecution subsequently filed a motion seeking to

6 admit rebuttal evidence in the form of two 92 bis statements, and we said

7 that the purpose of admitting that rebuttal evidence was to assist the

8 Appeals Chamber in determining the weight to be attached to additional

9 statements by Witness CA.

10 The appellants, and this is important to note, they did not oppose

11 the application; in fact, they said that it was in the interests of

12 justice that the evidence be admitted. In essence, they are agreeing with

13 the Prosecution that the 92 bis rebuttal evidence can be looked at for the

14 purpose of determining weight, that is, credibility.

15 The Appeals Chamber admitted the 92 bis statements under Rule

16 89(C). The Appeals Chamber said that they appeared to be relevant, they

17 may have probative value, and then the Appeals Chamber added that they are

18 admitted without prejudice to the determination of the weight to be

19 attached to the rebuttal evidence as well.

20 With regard to Witness ADA, the statement of ADA was admitted into

21 evidence without prejudice to the determination of the weight.

22 Subsequently, the Appeals Chamber held an evidentiary hearing on the 17th

23 and 18th of May. In the Scheduling Order, pursuant to the hearing, the

24 Appeals Chamber agreed that the Prosecution has the right to present

25 evidence in rebuttal limited to the issue of the credibility of Witness

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1 ADA and the other witnesses. In fact, the Presiding Judge commented at

2 the hearing itself that the purpose of the hearing was to determine

3 credibility and the weight to be afforded to the evidence which has been

4 admitted. It is clear that the purpose of the evidentiary hearing is to

5 further assist the Appeals Chamber in determining weight.

6 With regard to one of the additional evidence that has been

7 admitted, the video sought to be admitted -- that has been admitted, Your

8 Honour, in relation to Mirjan and Zoran Kupreskic, the Prosecution has

9 always maintained, and we still maintain, that the Appeals Chamber is

10 entitled to assess the weight of the evidence, the video. My colleague

11 Mr. Guariglia will later explain and will make submissions as to the

12 probative value of the video.

13 It would appear, Your Honour, that in determining weight the

14 Appeals Chamber is prepared to reassess the credibility aspects in terms

15 of the evidence, reliability, its probative value, after the Appeals

16 Chamber has made a determination at the admissibility stage. It is

17 submitted that the concept of weight entails applying an approach which

18 evaluates the additional evidence and sets it into a framework, the

19 framework provided by the whole of the evidence adduced at trial. The

20 Appeals Chamber must then ask itself whether the verdict has become

21 unsafe.

22 This approach that the Appeals Chamber has adopted so far is

23 consistent with jurisprudence in common law jurisdictions that have been

24 highlighted by my learned colleague Mr. Clegg, and also in the cases that

25 I have tendered to Your Honours in the supplemental book of authorities.

1 In the first High Court of Australia case that I have cited in my

2 supplemental book of authorities, Gallagher and R., the High Court relied

3 on the English decision, the House of Lords' decision in Stafford and DPP

4 and said this:

5 "Once fresh evidence has been admitted and possibly

6 subjected to cross-examination, the court had to decide

7 what weight, if any, should be given to it. He added,

8 'There can be no doubt that the Court of Criminal Appeal

9 is required to form some view as to the credibility of

10 fresh evidence.'"

11 Again, in Gallagher, the court said that the capacity of fresh

12 evidence to --

13 MR. CLEGG: I apologise for interrupting. I wonder whether it's

14 possible to give us the page reference, because it's very difficult to

15 follow.

16 JUDGE WALD: Can you do that, Ms. Rashid? If you're citing it,

17 just give the page reference for Mr. Clegg.

18 MS. RASHID: Yes, Your Honour, I could do that. But, Your Honour,

19 the point that I'm making here is simply this, Your Honour: The cases --

20 the courts in Australia, they have decided that the Court of Criminal

21 Appeal and the court at appellate level can make -- can resolve issues of

22 credibility and assess the weight of additional evidence that has already

23 been admitted. So that's --

24 JUDGE WALD: I understand that. But why don't you give Mr. Clegg

25 the citation anyway.

1 MS. RASHID: Your Honour, it's found at page 6 and 7 of the case

2 that I have cited in Gallagher, Your Honour.

3 The Prosecution observed that the Canadian court in Palmer adopted

4 the same two component tests and adopted a similar procedure to the one

5 adopted by this Appeals Chamber, and the procedure that they have adopted

6 in that case is similar to the one that you have adopted in the case of

7 Vlatko Kupreskic in holding an evidentiary hearing.

8 At Registry page 776, the court explained a phrase used in the

9 case of McMartin, which is another authority cited by my learned

10 colleague. The court said that the phrase "it might reasonably affect the

11 verdict of the jury" involves a consideration of his credibility, as well

12 as its probative force if presented to the trier of fact.

13 In all these cases, the Prosecution note that the Court drew a

14 line between matters which the Appeals Chamber could safely evaluate in

15 terms of its reliability and probative value of the additional evidence

16 and make a determination, and then there are matters which they say that

17 the Appeals Chamber could not make a determination on. This is the

18 crucial distinction which is consistent with the approach that the

19 Prosecution will be proposing today and which might explain why, in

20 certain jurisdictions, the test that several -- some courts have preferred

21 to use is "might" or "could" as opposed to a higher threshold of "would."

22 I will reiterate again that what the appellants is asking the

23 Chamber to do is to quash the conviction. This, I submit, is an extreme

24 remedy. It's reflective of a verdict which is so erroneous that it causes

25 a miscarriage of justice, and a verdict that no reasonable trier of fact

1 would arrive at if the additional evidence was available before it.

2 Still in this light, the evidence offered fort Appeals Chamber's

3 consideration must be of such quality, it has to possess that character

4 that it must have an impact on the verdict. It must be so cogent that if

5 believed, it is likely to produce a different result. In the case of the

6 appellants, an acquittal.

7 The Appeals Chamber appears to have adopted this two-stage test

8 and at the hearing stage those two component test of assessing the

9 credibility and the impact the additional evidence would have on the

10 verdict. If the Prosecution is mistaken in the sense that all issues of

11 credibility has been resolved already by the Appeals Chamber at the

12 admissibility stage, in our submission -- it is our submission that the

13 test that the Court should adopt at this stage is as follows: If the

14 evidence was available at trial and, if believed, whether it would have an

15 impact on the final verdict.

16 The central issue in dispute between the Prosecution and the

17 appellants is in the use and the meanings of the words "could" and

18 "would." What is agreed, Your Honour, is that the difference lies in the

19 higher or lower standard to be adopted. The appellants' rationale for

20 adopting a lower standard is that firstly, the higher standard would

21 inevitably cause injustice as the appellant is never able to meet the

22 standard. He then relies on certain cases, but he acknowledges that some

23 jurisdiction uses the higher standard. The appellants have made no

24 attempts to explain why there is that distinction in certain

25 jurisdiction.

1 The Prosecution submits that the more appropriate test is "would"

2 mainly because it is more responsive to the practice and the nature of the

3 trials conducted at the Tribunal. It is in the interest of justice that

4 this test be adopted because the matter is now before an appellate court.

5 This is not a trial de novo. And lastly, there is ample support for the

6 standard even in domestic jurisdiction.

7 Your Honour, the word "would" does not reflect a sense of

8 inevitability as my learned colleague had submitted. The words "could"

9 and "would," in fact, reflect a degree of likelihood. The Appeals

10 Chamber, I respectfully submit, need look no further than this book for

11 the definition of the word. The word "would" expressed probability and is

12 dependant on the condition to be fulfilled. Your Honour may only look at

13 this book, the dictionary. It denotes a degree of likelihood not

14 inevitability and, in fact, this was the interpretation given by the

15 courts in the US and in Australia as well.

16 The word could means, "able to or to be potentially capable of."

17 The word might expresses, "a possibility based on a condition yet to be

18 fulfilled." Therefore, to give it the meaning proposed by counsel is,

19 with due respect, Your Honour, not of much assistance in appreciating the

20 differing nuances that was conveyed in this context.

21 The appellants argue that the word "would" create a potential for

22 injustice and he has offered an illustration in his brief which he has

23 highlighted in his submissions. The appellant's illustration would not

24 cause injustice because in the illustration that he gives, if someone else

25 admitted to committing a murder and this person was never identified at

1 trial, and if the evidence is sufficiently plausible, a return is

2 warranted unless the Court holds an evidentiary hearing and find that the

3 person is inherently incredible or not worthy of belief. This was, in

4 fact, the situation in the High Court case in Gallagher where someone else

5 admitted to being the murderer in the case but his evidence was rejected

6 because he was not credible and the motion for a new trial was dismissed.

7 Next at paragraph 2.17 of the appellant's reply brief, he argued

8 that the word "could" is consistent with the Appeals Chamber's observation

9 in Tadic that, "Two reasonable person can reasonably come to two different

10 conclusions when presented with the same facts." With respect, this is a

11 misapplication of the principle. The principle refers to the discretion

12 of trial judges and how they are entitled to view the evidence at the

13 trial stage. It was said in the context of the standard of review under

14 Article 25. As to whether or not another court of law or another trial

15 chamber may come to a different or similar conclusion is not a relevant

16 consideration under Rule 115.

17 He next referred to authorities, particularly English authorities,

18 which he says supports his contention. Your Honour, the Prosecution does

19 not deny that various jurisdictions apply and adopt different standards.

20 What the Prosecution will highlight and attempt to rationalise from these

21 cases is the following: What did some courts adopt while others reject

22 the lower standards? What was some of the reasons that they have

23 forwarded?

24 In the English cases that counsel has made submissions on, we

25 assume that counsel is, of course, correct when he asserts that the law in

1 England is clear, and the language used is "might." It would appear that

2 the House of Lords decision that he has referred to is suggestive of

3 this. But Your Honour, the use of the word "might" have to be placed in

4 the proper context, because all the English cases that they have cited

5 deal with jury trials.

6 In a jury trial, there are no written judgements on the factual

7 findings. In fact, the word "might" was only used in these cases where

8 the court decided that they were not sure, one way or another, how the

9 jury may be influenced by the additional evidence. In McNamee, for

10 example, one of the cases cited by counsel, the court laid down the tests

11 as follows, Your Honour, "The only ground of appeal is that the conviction

12 is unsafe because there are three witnesses not called at trial, his

13 testimony is capable of belief and if believed, would or might exonerate

14 the appellant."

15 In this case, the court decided to return the case because it

16 could not be sure how the jury would interpret the evidence.

17 The Court in R and McNamee at registry page 5699 made the same

18 observations:

19 "Accordingly we cannot be sure that a jury on the

20 totality of the evidence which we have heard would have

21 found that they were sure that it was the appellant's

22 fingerprint. This is a matter of importance when we come

23 to the conclusion whether or not the verdict is safe."

24 In Stafford, Your Honour, the Court mentioned three categories --

25 I'm sorry, Your Honour, I will slow down now -- in the case of

1 R. and McNamee, Your Honour, the Court referred to the House of Lords

2 decision in Stafford, and the court mentioned three categories that Lord

3 Cross mentioned in the case of Stafford. I will just refer Your Honour to

4 the registry page, it is at 5698.

5 The three categories that the court mentions shows that the word

6 "might" was only used when the Appeals Chamber was not sure one way or

7 another whether the jury will return a verdict of guilty so a retrial was

8 ordered. The court in McNamee talks about a conflict which, on the facts

9 of that case, they were not able to resolve.

10 All the cases cited by the appellants are jury cases which is why

11 the word "might" appears in the final deliberations as to whether the jury

12 may resolve --

13 MR. CLEGG: I'm sorry, but my learned friend is inadvertently

14 misleading the Appeal Chamber, and I know it's inadvertent. But the

15 English cases I quoted included the Queen and Clegg, you will remember,

16 from Northern Ireland, and Lord Justice Carswell, but there is no jury in

17 Norther Ireland, in England, in cases such as that. It was a special

18 procedure case by Diplock court and a judge sitting alone. It's not right

19 to say they are all jury trials, and I included it for that purpose.

20 JUDGE WALD: I understand your objection, but I think in general,

21 Mr. Clegg, you might save some of these differences for your rebuttal

22 time.

23 MR. CLEGG: Certainly. I was not trying to be unhelpful. I

24 didn't want my friend to ignore the chance to come back later.

25 JUDGE WALD: Okay. Go ahead.

1 MS. RASHID: I'm much obliged later. Your Honour, I was just

2 referring to the English cases that I have cited. If I was wrong about

3 the Northern Ireland case, then the record stands corrected.

4 Your Honour, a more important reason for why it is important for

5 this Appeals Chamber and this Tribunal to use the higher standard, it is

6 because it is the practice of the Trial Chambers of the Tribunal to

7 produce recent written and more often than not very detailed judgements by

8 three Judges. Their factual and their legal findings are available for

9 the Appeals Chamber's scrutiny.

10 This is not a jury trial where an appellate court cannot be sure

11 one way or another as to whether a jury may come to a different

12 conclusion. In other words, Your Honour, the Appeals Chamber in this

13 Tribunal is perfectly capable to make that determination as to how the

14 Trial Chamber would have decided if the additional evidence was available

15 before it, something which eludes judges hearing appeals from jury

16 trials.

17 The appellant's fourth argument is that the lower threshold is

18 more compatible with Rule 120. Rule 120 deals with review proceedings

19 Your Honour. Your Honour, what the appellants have clearly failed to

20 appreciate is that the distinction between additional evidence and new

21 fact.

22 In the Tadic decision, the Appeals Chamber explained that

23 additional evidence means evidence of a fact adduced at trial, the

24 additional evidence constitutes further evidence of that fact. A new fact

25 means a fact that was never adduced or explored or discussed at trial.

1 The test of "could" which is found in Rule 120 is, therefore, more

2 compatible because the new fact was never presented before the Trial

3 Chamber. It was never discussed in the judgement. We have no way of

4 knowing how the Trial Chamber may think, and whether it would affect their

5 verdict. It is my submission that Rule 120 is of little assistance to the

6 Appeals Chamber in determining the test for Rule 115.

7 Your Honour, very briefly, I will just highlight to the Court some

8 of the cases that I have referred to in the supplemental book of

9 authorities. I will just make references to the page number. In

10 Gallagher and R., at pages 6 and 7, and if you look at the judgement in

11 it's entirety, Your Honour, the decision stands for the proposition that

12 the higher threshold is preferable as opposed to the lower threshold, that

13 is the test of "might." In fact, in this case, four out of the five

14 justices agreed that the proper test to be used at the appeal hearing once

15 additional evidence is admitted is that the jury "would" have acquitted

16 the accused as opposed to "could."

17 This decision, the test in this decision was subsequently followed

18 in Mikelberg and R., the second Australian decision that I have included

19 in my book of authority.

20 As for the US position, Your Honour, I note that the digest of

21 cases in the appellant's book of authorities referred to US cases from

22 1991 right up to 1996. I have highlighted in my supplemental bundle a

23 1999 decision of the US Court of Appeal for the first circuit.

24 My learned friend has alluded to that particular decision, it is

25 not the Larrison or Harrison decision, it's called the Huddelston

1 decision. And in that particular case, it rejected the Larrison rule

2 which has always adopted the lower standard, and decided to adopt the

3 "would" standard of the probability test.

4 What is interesting in this case is that yesterday, as I recall

5 it, the Presiding Judge made a comment or rather asked a question of

6 counsel, you commented that, "The logical sequence of the might test is

7 that one would invariably where he remit the case for a new trial," and

8 counsel agreed that that is the consequence.

9 The Court in Huddleston has, in fact, raised this very same

10 legitimate concern, and that was the rationale behind the rejection of

11 this test. And I will refer Your Honour to page 6 of the judgement which

12 states this, just very briefly go through it, "A principle difficulty with

13 the Larrison rule is that it sweeps too broadly. It would be an unusual

14 case in which newly discovered evidence of false testimony," referring to

15 the evidence in this case, "might not pave the way of an acquittal. In

16 practice, therefore, Larrison comes perilously close to creating a per se

17 rule whenever the government unwittingly uses perjured testimony."

18 The court heeded the warning that Larrison requires reversal even

19 with respect to relatively minor instances of perjury. The court in this

20 case refers to the case of Stofsky at pages 7 and commented that, "The

21 case transformed the legal landscape and marked the start of what has

22 become an unmistakable trend towards use of the probability standard."

23 And I submit that this is probably the situation now in the US.

24 If this case reflects the current position in the United States

25 courts.

1 Your Honour, the Appeals Chamber has this opportunity not only to

2 clarify the procedure on the law, but also to put in place a system where

3 additional evidence may be evaluated at two stages of the appellate

4 process; the admissibility stage and the hearing stage. This would ensure

5 that all parties have an opportunity to test the evidence and also to

6 ensure whenever possible that in cases when accused seeks the extreme

7 remedy of a retrial, the evidence that is capable of influencing that

8 process is reliable, it is compelling, and it's likely to ensure a

9 reversal of the verdict if believed.

10 Obviously, Your Honour, the question can only be answered in the

11 context of and by reference to the probative force and the nature of the

12 additional evidence and also seen in the framework of the probative force

13 and the nature of the evidence already adduced at trial which will be

14 discussed in the course of our responses.

15 Your Honour, that concludes my submissions on Rule 115. What I

16 propose to do now is to make a very brief submission on the evidence of

17 Witness AT.

18 The material that I'm referring to, Your Honour, is the transcript

19 that has been admitted pursuant to Vlatko Kupreskic's motion, which all

20 the parties, the appellants, Vladimir Santic, Drago Josipovic, Mirjan and

21 Zoran Kupreskic, are now applying to --

22 JUDGE WALD: Are you going to want a private session for this?

23 MS. RASHID: Your Honour, I don't believe I need a private session

24 for this, but if I -- there might be --

25 JUDGE WALD: All right. You'll alert us.

1 MS. RASHID: Yes, I will inform the Court.

2 Your Honour, the appellants have applied to -- have applied to the

3 Appeals Chamber to either review its earlier decision, to reconsider Your

4 Honours' decision to admit Witness AT's statements under Rule 115, and

5 they have either done that or they have simply relied on Witness AT's

6 interviews and statements because of the manner in which they have

7 interpreted Your Honours' decision.

8 The basis for the appellants' reliance on this material is the

9 Appeals Chamber decision of the 29th of May this year, where there was a

10 comment made that, in this case, the Chamber as well as the other parties

11 are entitled to avail themselves of the material -- Witness AT's

12 material. It is the Prosecution's contention that apart from Vlatko

13 Kupreskic, the remaining appellants cannot rely on the material for the

14 purpose applied for.

15 Your Honour, the portion of the decision relied on by the

16 appellants is found within the section dealing with the admissibility of

17 AT's testimony.

18 Your Honour, perhaps we can go into private session for just two

19 minutes.

20 JUDGE WALD: Private session.

21 [Private session]

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16 [Open session]

17 MS. RASHID: Your Honour, counsel made mention of the closing

18 brief in the case of Kordic and Cerkez. The appellants' argument, to my

19 mind, is astonishing, Your Honour. It was not relevant or necessary for

20 the Prosecution in that case to make any comments about this witness's

21 credibility on that aspect of his involvement since they have not relied

22 on that aspect. Further, it would not be appropriate for the Prosecution

23 in that case to make any comments about the witness's credibility because

24 the matter was still under appeal, and is still contentious.

25 In any case, Your Honour, we submit that comments made by the

1 Prosecution in that case is of little assistance, is of little consequence

2 to the issue before this Court. Whether the appellants can still rely on

3 Witness AT's material, that has been admitted for Vlatko Kupreskic.

4 Your Honour, that concludes my submission on both areas that I

5 wish to cover for now. If Your Honour has any questions.

6 JUDGE WALD: Thank you. Let me canvass. I have one question.

7 Does anyone have any?

8 Ms. Rashid, vis-a-vis your argument that AT's statement can only

9 be admitted for purposes of Vlatko Kupreskic, I'm somewhat perplexed

10 because at least in my experience, if a Prosecution goes ahead and tries

11 several defendants in a joint trial, then generally anything that is

12 entered into the record becomes part of the record for all of the

13 defendants. Now, this is just my prior understanding and experience.

14 Perhaps you can enlighten me if I am wrong. And in fact when the

15 Prosecution, in some of the trials I've been involved in here in the

16 Tribunal, if the Prosecution enters a piece of evidence vis-a-vis Witness

17 A, it can be considered, it's in the record, it can be considered

18 vis-a-vis Witnesses B, C, and D. So I'm somewhat perplexed by the

19 argument that the Tribunal can only look at one piece of evidence for one

20 of the defendants.

21 Now, the Prosecution makes a conscious choice to try several

22 together as opposed to trying them separately, and it seems to me they

23 may - they may - have to take the burden along with the benefit of that.

24 Maybe you'd like to address that very briefly.

25 MS. RASHID: Yes, Your Honour. My response to that is that,

1 firstly, the cases -- the instances that Your Honour has highlighted, I

2 assume, occurred at the trial stage, Your Honour. My submission is this:

3 At the appellate stage, when we are dealing with additional evidence

4 admitted under Rule 115, it is the burden on each of the appellants to

5 discharge the specific criteria required under Rule 115(A) and Rule

6 115(B). The additional evidence then operates specifically for each of

7 the appellants that have successfully met the requirements in Rule 115(A)

8 and (B).

9 It would be strange, Your Honour, if, for instance, Drago

10 Josipovic failed to meet the test under 115(A) in the sense that the

11 evidence was available to him and he failed to meet that low threshold at

12 115 stage, but because Vlatko Kupreskic could satisfy the Court of the

13 test and managed to get it in, Drago Josipovic could then avail himself of

14 the evidence. He has not discharged his burden under 115(A).

15 JUDGE WALD: Let me pursue that just one more step, Ms. Rashid.

16 MS. RASHID: Yes, Your Honour.

17 JUDGE WALD: Suppose you had a situation like this: where

18 Witnesses A and B have both been found guilty of, say, murder at the trial

19 level. It comes up to the appellate level and Witness A doesn't do

20 anything, I mean doesn't -- Witness B, however, goes out and finds some

21 additional evidence by way of a confession of somebody else who says, "I

22 did the murder, not A and not B." Are you suggesting that only B could

23 profit by that and Witness A would have to go ahead and serve his

24 sentence, even though the record showed that you had a piece of evidence

25 that exonerated A as well as B?

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1 MS. RASHID: I think in that case, Your Honour, both parties would

2 have to make an application. Both parties --

3 JUDGE WALD: That's pretty harsh justice, Ms. Rashid.

4 MS. RASHID: Your Honour, in this case, if I may just bring Your

5 Honours' attention back to what has happened before the hearing.

6 In the case of Drago Josipovic, Mirjan Kupreskic, and Vladimir

7 Santic, Your Honour has made a very specific ruling that the portions of

8 the evidence that they propose to rely on are neither credible nor

9 material to these very same appellants. You have made that decision; that

10 the parts of the material that they propose to rely on were not credible

11 or they were not relevant. You cannot now go back on your decision.

12 That's the bottom line, Your Honour. Unless, of course, there is a

13 procedure by which Your Honour could decide to review your decision.

14 JUDGE WALD: All right. Thank you very much for answering my

15 question.

16 I think that because it's 4.00 and we were going to take a break

17 at 4.10 - but I wouldn't ask somebody to begin their presentation - we

18 will now take our break from 4.00 to 4.20. And then the Prosecution can

19 resume the next phase of its argument. Till 4.20.

20 --- Recess taken at 4.00 p.m.

21 --- On resuming at 4.24 p.m.

22 MR. ABELL: Your Honour, before the Prosecution continue with

23 their argument, may I just give Your Honours a progress report. Since we

24 addressed you at the end of the luncheon adjournment, we have, in fact,

25 drafted and typed up a confidential urgent motion which has just been

1 filed simply so that Your Honours are aware of the position.

2 JUDGE WALD: All right. I think it might be a good idea if you

3 can make Xerox copies, and although it's filed, it won't be distributed to

4 us in the regular business until tomorrow. If you give it to the deputy

5 registrar, she can make sure we have copies.

6 MR. ABELL: I am grateful. May I say we actually tried to do

7 that, but unfortunately the photocopier outside Defence counsel's room has

8 been broken down or jammed. I I'm just wondering if it's not too much of

9 an interference with the administration of the court if an usher might do

10 that task.

11 JUDGE WALD: Hang on one second. Yes, we have one of the ushers

12 who is making copies right now.

13 MR. ABELL: I am very grateful. I'm sorry we couldn't provide

14 copies but I'm sure you'll understand.

15 JUDGE WALD: We'll all do our best. Okay.

16 Now, we'll have the Prosecution resume. It's 4.25. I thought we

17 would try to give you approximately 40 minutes which will take us to about

18 five after 5.00 and that way,, by my accounts, tomorrow morning there will

19 be something like 2 hours and 30 or 35 minutes left to your time. Go

20 ahead.

21 MR. GUARIGLIA: Thank you, Your Honour. Good afternoon, Your

22 Honours.

23 I will try to deal very briefly with the standard of review for

24 sentence and the submissions advanced by my learned friend Mr. Clegg on

25 behalf of all appellants. There are three issues before you on this

1 particular topic. The first one deals with the standard of review for

2 sentence and, in particular, with the impact on the recent Jelisic

3 judgement of the Appeals Chamber on this particular issue.

4 The second issue before you is the one of fresh evidence

5 pertaining to mitigation in its regime on appeal, what is the provision of

6 earning its admission if there is such a provision.

7 The third one would be what is the value of new facts, that is,

8 facts that arise after judgement within the context of an appeal against

9 sentence.

10 As to the first issue, I think that there is only partial

11 disagreement between the parties, and then again that disagreement may be

12 caused due to a misunderstanding on our part of the appellants' position.

13 The second issue is clearly in dispute. And on the third issue, I think

14 that we could say that there is an agreement to the consequence although

15 it may be that the parties reached the same conclusion but through

16 different avenues.

17 I will deal first with the standard of review and the impact of

18 the Jelisic judgement on it. There is clearly no dispute that the

19 appropriate standard for appellate review of sentences is the existence of

20 a discernible error by the Trial Chamber in the sentencing process which

21 has been defined by the Celebici Appeals Chamber in its judgement as a

22 case where an appellant shows to the Trial Chamber either took into

23 account what it ought not to have, or failed to take into account what it

24 ought to have taken into account with the sentencing procedure.

25 The appellants appear to submit that the Jelisic judgement of this

1 Appeals Chamber has varied, a little bit, the standard, and that a

2 sentence may be considered to be excessive if it is not of reasonable

3 proportion with a line of sentences passed in similar circumstances for

4 the same offences. And the appellants further argue that at this stage,

5 there is sufficient jurisprudence in the Tribunal to discern a range of

6 sentences or tariff.

7 The appellants appear to submit that Jelisic would provide a

8 different avenue for a successful review of sentence, one that would be

9 open if an appellant is able to demonstrate that, considering all relevant

10 factors, the sentence imposed is disproportionate in relation to the

11 International Tribunal for the same offences. We respectfully submit that

12 that is not exactly what the Appeals Chamber said in Jelisic, and our

13 position is that Jelisic provides no new avenue but is only a test

14 intimately linked with a discernible error test.

15 To be begin with, the Appeals Chamber stated that, "Whether the

16 practice of the Tribunal is far enough advanced to disclose a pattern is

17 not clear." This is paragraph 96 of the decision. And it added that,

18 "Where there is a significant disparity, the Appeals Chamber may infer

19 that there was disregard of the standard criteria by which sentence should

20 be assessed as prescribed in the Statute and the Rules," and further

21 warned that, "there are a number of factors to be considered in each

22 case."

23 This means that the Jelisic test does not provide an independent

24 avenue for review, but simply a relevant indicator that may enable the

25 Appeals Chamber to conclude that a Trial Chamber committed a discernible

1 error provided that an appellant is able to demonstrate that the cases in

2 question are identical and that the circumstances of which case did not

3 justify a departure from a line of sentences passed for similar offences.

4 So the immediate consequence is that contrary to what would appear to be

5 the position of the appellants, an appellant would not meet the

6 requirement simply by showing the disparity of sentences.

7 Now, the second issue before you is the admission of fresh

8 evidence pertaining to sentence on appeal. And here, the question before

9 you is are where the appellants are entitled to rely for the purposes of

10 an appeal against sentence on evidence that was not before the Trial

11 Chamber and, in particular, whether they could do so, they could rely on

12 that evidence without having to satisfy the strictest for admissibility

13 under Rule 115.

14 As Your Honours may recall, the appellants' position is that --

15 appears to be twofold. One the one hand since the Trial Chamber is under

16 an duty, unfettered duty under Article 24 of the Statute to consider all

17 the relevant material for the purposes of sentencing, then that duty

18 applies even despite the absolute inactivity from Defence counsel during

19 the sentencing stage.

20 So if it is demonstrated through new material that there was a

21 factor relevant for sentencing that was not considered even due to silence

22 of counsel, then the Appeals Chamber should rely on that new material

23 without the appellant having to satisfy the requirements of Rule 115.

24 The Prosecution opposes this position. And at the outset, it is

25 our submission that this notion of an unfettered duty of a Trial Chamber

1 to analyse all relevant sentencing material even despite a party's

2 absolute inactivity during trial is misplaced in the light of a coherent

3 reading of the Statute, the Rules, and the Tribunal's relevant

4 jurisprudence. Rule 85(A)(vi) clearly establishes that, "It is for the

5 parties to present before a Trial Chamber any relevant information that

6 may assist the Trial Chamber in determining an appropriate sentence if the

7 accused is found guilty."

8 This precludes an appellant, as a general principle, from raising

9 for the first time on appeal matters are pertaining to sentence that

10 should have been raised and could have been raised at trial. And this has

11 been clearly repeated in the jurisprudence of the International Tribunal

12 and most recently in the Celebici judgement, the appeal process of the

13 International Tribunal is not designed for the purpose of allowing parties

14 to remedy their own failings or oversights during trial or sentencing.

15 This is Celebici judgement at paragraph 724.

16 Which means that the duty of a Trial Chamber correctly construed

17 under Article 24 is to adequately consider the material placed before it

18 by the parties and not to engage in an accusatorial exercise of

19 incorporating relevant sentencing material which is a task for which we

20 will respectfully add a Trial Chamber of International Tribunal is simply

21 not equipped. And this is, indeed, a consequence of the adversarial

22 character of ICTY proceedings on which counsel for the appellants appear

23 to be relying for other purposes.

24 This means that if an appellant wishes to rely on sentencing

25 evidence that was not adduced before the Trial Chamber, there is no other

1 avenue available than the one provided for in Rule 115. The fact that

2 sentencing material may be a slightly different animal than evidence that

3 goes to establish the guilt or innocence of an accused may have some

4 consequence or may be relevant only to the extent that it may be that that

5 evidence is subject to a different regime for admissibility at trial as

6 the Appeals Chamber appears to have suggested again in the Celebici

7 judgement at paragraph 787. But it's immaterial for the purposes of that

8 material on appeal, and this transpires with clarity from the

9 jurisprudence of the Appeals Chamber itself in the Jelisic case. When

10 faced with the belated filing of a report on the general practice of the

11 courts of the former Yugoslavia, the Appeals Chamber clearly stated that,

12 generally speaking, for additional evidence to be admitted at the appeals

13 stage, a motion pursuant to Rule 115 of the Rules must be presented

14 thereby confirming the applicability to Rule 115 to sentencing material

15 adduced by the parties on appeal. This appears in the judgement paragraph

16 21.

17 And Your Honours, in the current proceedings when seized with a

18 motion for additional evidence related to sentence adduced by the

19 appellant Zoran Kupreskic, dismissed the said motion on the basis of the

20 criteria for admissibility enshrined in Rule 115 had already been met.

21 I'm referring to the 28 June 2001 decision on motion by Zoran Kupreskic

22 for additional evidence.

23 So there can be no doubt that additional evidence related to

24 sentence is governed, indeed, by Rule 115, and that the -- I would further

25 add that any risk of fundamental unfairness, as has been described by my

1 learned friend, would be averted by the miscarriage of justice exception,

2 which is the natural safeguard to make sure that a technical use of the

3 Rule will not lead to a material misjustice, and which, by the way, would

4 probably take care of the case that Your Honour Judge Wald was putting

5 earlier to my colleague Ms. Rashid.

6 The third issue, and this is the last issue before you as far as

7 the standard of review for sentence is concerned, deals with the value of

8 new facts in an appeal against sentence. The question before you, as

9 correctly identified by my learned friend, is as follows: When new facts

10 and not new evidence have arisen after an appellant's conviction and

11 sentence, what is the value, if any, of these new facts on an appeal

12 against sentence?

13 Guidance may be provided by -- again, by a decision delivered in

14 the Jelisic case by the Appeals Chamber, when a report of post-conviction

15 good behaviour by the appellant was rejected by the Appeals Chamber in the

16 following terms:

17 "The material in question could neither be relevant to

18 any issue before the Trial Chamber nor capable of being

19 considered by it and therefore cannot show that the Trial

20 Chamber committed any error in the exercise of its

21 discretion."

22 I'm quoting the 15 November 2000 decision on the request to admit

23 additional evidence.

24 Accordingly, it would appear that, as a general principle,

25 material pertaining to new facts, to the extent that they are incapable of

1 indicating any error by the Trial Chamber and therefore of rendering the

2 sentence unsafe, are, as a principle, irrelevant and not admissible on

3 appeal.

4 Now, an exception to this principle seems to be the one provided

5 by Rule 101(B)(ii) - that means substantial cooperation with the Office of

6 the Prosecutor - which establishes clearly that substantial cooperation

7 post-conviction may be considered in mitigation. Now, presumably the

8 rationale behind this particular exception was to encourage substantial

9 cooperation with the Office of the Prosecutor even after a conviction.

10 Now, the interesting thing with this provision is that it clearly

11 had a very high practical value in the days in which the Tribunal had a

12 bifurcated process for conviction and sentencing. The problem that we

13 have now is that that bifurcated procedure doesn't exist any more, and as

14 a consequence, conviction in the current scheme of proceedings before the

15 International Tribunal ordinarily also includes sentence. Therefore, the

16 practical value of the Rule has been or could appear to be significantly

17 limited.

18 So it is our submission that the Appeals Chamber should favour an

19 interpretation of the Rule that ensures its useful effect, and accordingly

20 should entertain cases in which, post-judgement, if we can call it that

21 way, substantial cooperation is raised for the first time on appeal.

22 The Appeals Chamber may choose one of two different avenues before

23 it for this particular exercise. One is to use Rule 101 directly and

24 treat the matter qua an error of law under Article 25(1) and, if it deems

25 that it is in a position to do so, enter a new sentence, if it considers

1 that this should be the appropriate solution for the case. The other

2 avenue would be to treat the matter as a case of review raised in the

3 course of appellate proceedings with exactly the same effect, applying

4 Rules 119 and 122.

5 It is our submission that the Appeals Chamber would have the

6 authority, or it could be sustained that the Appeals Chamber would have

7 the authority for this latter exercise, and we're relying on a separate

8 opinion of Judge Shahabuddeen in the ICTR case, the Prosecutor versus

9 Barayagwiza. "The Appeals Chamber may itself," according to Judge

10 Shahabuddeen, "determine the effect of a new fact in an appeal pending

11 before it." This is the 31 March 2000 decision on the Prosecutor's

12 request for reconsideration, at paragraph 56.

13 This concludes my submissions on standard of review, Your Honour.

14 I was trying to be very brief and only put before Your Honours which are

15 the main points on this particular topic. Needless to say, I'm available

16 to any questions, if there are.

17 JUDGE WALD: Questions? One brief one.

18 In the case of substantial cooperation which is raised after the

19 original conviction, is it your position that the Appellate Chamber should

20 decide whether or not whatever has been done amounts to substantial

21 cooperation, or is this something that should be remanded for the Trial

22 Chamber to -- and if so, how does the Appellate Chamber find out if it

23 really was substantial cooperation? Does it have to rely on the

24 Prosecutor saying yes, it was, or does it have to make its own inquiry

25 into what, indeed, the cooperation consisted of? What does the

1 Prosecution think are the mechanics of taking that into consideration?

2 MR. GUARIGLIA: I think the answer to Your Honour's question would

3 be that the Appeals Chamber has the discretion in determining in each case

4 whether it has been provided with sufficient material in order to enable

5 the Appeals Chamber to make such a determination, including submissions by

6 the Prosecution as to how the Prosecution considers that cooperation by an

7 appellant to be; whether the Prosecutor, for instance, concedes that the

8 cooperation may amount to substantial cooperation in the sense of Rule

9 101. And if this is coupled with other materials, such as indicating the

10 precise nature of the cooperation, its impact, for instance, on ICTY

11 proceedings, in other cases, whether this has been relied on by any other

12 Trial Chamber, then the Appeals Chamber may find itself in a position to

13 determine that -- to determine two questions: First one, whether the

14 cooperation amounts to substantial cooperation under Rule 101(B); and if

15 the answer to that question is yes, whether that should be reflected on

16 sentence. And if the Appeal Chamber feels that it is not fully equipped

17 to deal with that, it clearly has the option to --

18 JUDGE WALD: Let me put it to you, Mr. Guarigilia: Is the

19 Prosecution, in this case, telling the Appeals Chamber that there has been

20 substantial cooperation in the case of -- in the case that we know about,

21 or is it saying, well, maybe you want to look into it?

22 MR. GUARIGLIA: The position of the Prosecution, well, has been, I

23 think, quite clear. We considered that the cooperation amounts to

24 substantial cooperation under Rule 101. We acknowledge at the same time

25 that the determination on whether that is the case or not is a judicial

1 determination. So we can assist the Appeals Chamber, but clearly it is

2 the Appeals Chamber's determination.

3 JUDGE WALD: Let me go one step further. Do you think you've

4 already given us by way of your submissions, written and otherwise, enough

5 material for us to make the determination now, or would we, in your view,

6 have to make a separate inquiry?

7 MR. GUARIGLIA: I was going to deal with that topic tomorrow.

8 JUDGE WALD: Okay, that's all right. As long as you deal with it

9 at some point, that's fine.

10 MR. GUARIGLIA: I will deal with it tomorrow.

11 JUDGE WALD: Okay, all right.

12 MR. GUARIGLIA: With Your Honours' leave, I will now give the

13 floor to Ms. Rashid.

14 MS. RASHID: Your Honour, the Prosecution will now utilise the

15 time available from now up till 5.15, I believe --

16 JUDGE WALD: Well, let me clarify that. I said 5.15, you were

17 right, originally, but then we took our break earlier. I would say till

18 about five after five now.

19 MS. RASHID: Yes, Your Honour. I'll work within that time.

20 JUDGE WALD: All right.

21 MS. RASHID: Your Honour, in this part of the Prosecution

22 response, I will be addressing the Chamber on the submissions made by my

23 learned colleague Mr. Clegg on the evidence of Witness EE.

24 Your Honour, the Prosecution has made substantive submissions in

25 its response brief and I can do no better than to refer Your Honour to the

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1 response brief. I would, however, for purposes of this appeal, highlight

2 certain factors, certain facts which I am of the view that the Appeals

3 Chamber should look at when evaluating the Trial Chamber's decision in

4 relation to Witness EE.

5 Your Honour, before I proceed to discuss the evidence of Witness

6 EE, may I just highlight two fundamental principles which I have

7 elaborated in the Prosecution response brief. The first relates to what

8 we call the extension of the test of materiality. The emphasis there is

9 that even if discrepancies found within a witness's evidence are material

10 and pertain to certain aspects of the witness's evidence, the Court is

11 entitled to reject those aspects of the witness's evidence, but that does

12 not lead to an automatic rejection of the witness's entire evidence or

13 other aspects of the witness's evidence which the Court believes.

14 This proposition finds support in the Trial Chamber's decision in

15 Celebici, which I have highlighted in my response brief, and I have

16 also -- what I have done is to highlight cases from various domestic and

17 civil law jurisdictions, Your Honour, from the United States, from Asia,

18 Australia, and the UK, which supports this proposition.

19 The second fundamental principle that I would refer to is the one

20 made by the Trial Chamber in Celebici and in the ICTR decision of

21 Rutaganda.

22 The Trial Chambers in these cases observe that under the

23 circumstances where pre-trial statements are being tendered to discredit

24 or impeach the credit of a witness, under the circumstances, the Trial

25 Chamber attaches probative value to testimony primarily on the basis of

1 oral testimony given in the courtroom as opposed to prior statements,

2 where the demeanor of the relevant witnesses could be observed firsthand

3 by the Trial Chamber and placed in the context of all the other evidence

4 before it.

5 This is because the Court acknowledges that there are -- there are

6 certain circumstances that the Trial Chamber must look at when looking at

7 the prior inconsistent statements of witnesses; for example, the sitting

8 time lapse between the events about which the witnesses are testifying;

9 the making of the prior statements and their testimony before the Trial

10 Chamber; the difficulties that witnesses may experience in recollecting

11 precise details years after the fact; and the near impossibility of being

12 able to recount them in exactly the same detail and manner on every

13 occasion that one is asked to do so.

14 It is against these principles that I would ask Your Honours to

15 cast your minds when you evaluate or review the Trial Chamber's findings

16 in relation to Witness EE.

17 It is interesting for the Prosecution to note that counsel for

18 Drago Josipovic has stayed clear of Witness EE's evidence in court, but

19 what he has done is that he has reiterated arguments offered at the trial

20 relating to the inconsistencies in Witness EE's statement and her mistaken

21 identification of two soldiers. All these arguments were considered by

22 the Trial Chamber and rejected.

23 One thing that has to be borne in mind is that the Court can only

24 rely on evidence adduced under oath to support its factual findings.

25 Investigative statements are not evidence. They have been used here in

1 this case solely for the purpose of impeachment. What we cannot get too

2 distracted from the evidence that has to be studied. Counsel has barely

3 addressed the Court on her evidence in court. Evidence which the Trial

4 Chamber has obviously relied on. The reason is simply they, they could

5 not seriously fault her evidence in court.

6 I will deal with all the challenges that counsel has made to

7 Witness EE's statement, but what I would like to bring your attention to

8 is what we believe are the fundamental features of Witness EE's evidence

9 which clearly influenced the Trial Chamber to accept her evidence and --

10 not in it's entirety but in certain pertinent and material aspects. We

11 have mentioned in our response brief about the chain of consistency

12 relating to her identification of Drago Josipovic as one of the

13 perpetrators that committed the acts on 16 of April in the Muzafer Puscul

14 house.

15 The Trial Chamber found that Witness EE's testimony and

16 identification of Drago Josipovic were, in fact, strengthened by her

17 previous investigative statements which demonstrate this chain of

18 consistency. The statements show that in all her previous statements to

19 various investigators, various persons, as well as in court, Witness EE

20 consistently named the appellant Drago Josipovic as one of the soldiers

21 that had appeared at her doorstep on the morning of 16th of April, 1993.

22 She had never wavered from that evidence.

23 The Trial Chamber also heard evidence that Witness EE knew the

24 appellant since childhood. He was a close neighbour. She said that she

25 would see him frequently while travelling to and from work and while

1 visiting neighbours.

2 In her statements and in court, not only did Witness EE speak of

3 the appellant being one of the soldiers at her doorstep on the morning of

4 16th of April, she was also consistent on specific details about his

5 conduct thereafter, and his conduct during the attack itself. In view of

6 her consistent identification of the appellant, it was open to the Trial

7 Chamber to conclude that her identification of the appellant at the scene

8 at the material time was accurate and reliable.

9 A proper evaluation of Witness EE's evidence is not to truncate

10 her evidence at the time of the attack as to what she saw and what she

11 could not possibly have seen, that is, she must have made a mistake since

12 she possibly made a mistake in identifying two of the soldiers, then she

13 must have made a mistake in identifying the rest. We have to look at her

14 evidence in its totality.

15 Witness EE spoke about seeing the appellant Drago Josipovic on two

16 occasions. Once in the morning during the attack, and subsequently in the

17 evening later at the barn where he was hiding. Drago Josipovic and

18 another person called Livancic came and asked her to leave the shed.

19 Now, counsel for the appellant has made no mention of the events

20 occurring after the attack. We cannot view her evidence in isolation of

21 all the other events that she spoke about because it is improbable that

22 the witness could have made a mistake on the appellant's presence during

23 the attack but was not -- but did not make a mistake subsequently in the

24 evening when she saw him at the barn.

25 The witness also spoke of certain details which the -- involving

1 the appellant. She said that it was the appellant who came to the shed

2 that day. He broke the lock. He let the farm animals out at her

3 request. The appellant also agreed to accompany her to Anto Papic's house

4 to seek shelter. This was after the attack on the same day in the evening

5 because she said she was afraid to walk out on her own.

6 It must be noted, Your Honour, this aspect of the witness'

7 evidence was not disputed. In fact, it was supported by [redacted]

8 himself who was called by the Defence.

9 With regard to the appellant's assertion that she has -- she had

10 misidentified the soldiers on various occasions, that, with all due

11 respect, is exaggeration, is an exaggeration. It is submitted at that

12 time to the Trial Chamber was probably correct to counsel conclude that

13 she may have been mistaken only in relation to with respect to two of

14 them. In fact the Trial Chamber said "may" because the Trial Chamber had

15 correctly given the benefit of the doubt to the appellant.

16 The Prosecution notes that the Trial Chamber also accepted that

17 the witness was not mistaken about the presence of another person,

18 Livancic, and they gave reasons for concluding this. That's at paragraph

19 503 of the judgement. In fact, Your Honour, Witness EE has consistently

20 named Livancic as one of the perpetrators.

21 Lastly, Your Honour, it is imperative to place Witness EE's

22 evidence in its proper perspective. Her evidence was material to

23 establish the charges against Drago Josipovic and Vladimir Santic. The

24 Prosecution notes that the bulk of the inconsistencies highlighted by the

25 appellant pertain to other soldiers and their movements and their

1 conducts. The presence of the rest of the soldiers, their identities,

2 their exact movements are not relevant for the purpose of deciding whether

3 there was sufficient evidence to prove that the appellant Drago Josipovic

4 was present at the scene and committed the crimes he was convicted for.

5 They are relevant in so far and only to the extent of determining her

6 voracity, Witness EE's voracity.

7 The probative value, Your Honour, of these inconsistencies must be

8 placed in their proper perspective, and it has to be placed tangential to

9 the fundamental features of Witness EE's evidence, her consistent and

10 unwavering identification of the appellant, and her consistent narration

11 of his conduct during the attack and subsequent to the attack.

12 The appellants, Your Honour, they want this Court to accept a

13 strange and improbable theory of what had happened, that the witness was

14 either mistaken, she had either fabricated evidence that occurred in the

15 morning, but she was perfectly credible and accurate on events in the

16 evening where the appellant had performed certain acts of kindness in

17 agreeing to save her farm animals and walking her to Anto Papic's house.

18 How could she have been mistaken about all these details? Why

19 would she want to fabricate evidence in -- relating to the attack, but not

20 subsequently? How was it that she had made a mistake about the

21 appellant's presence during the attack but not subsequently? Therefore,

22 the witness' evidence cannot be seen in terms of isolated events. It has

23 to be seen as a whole.

24 Her account, her story flows from the time of the attack until the

25 time she was made to leave Ahmici and she told the Court, very clearly,

1 the appellant's role from morning to evening. If you look at her evidence

2 in it's entirety pertaining to Drago Josipovic, there are no gaps. There

3 are no inconsistencies.

4 Your Honour, it is also clear from the judgement that the Trial

5 Chamber was perfectly aware of the problems in hearing this witness'

6 evidence. They were perfectly aware that she had given inconsistent

7 statements which we do not deny that she had. The Trial Chamber

8 considered at length and evaluated the evidence that was adduced to

9 discredit her.

10 After considering all this evidence, they decided to accept the

11 fundamental features of her evidence they were entitled to. They were

12 best placed to hear and assess the witness' evidence, and they have given

13 very clear reasons as to why they believed her.

14 The appellant, Your Honour, has not established that the Trial

15 Chamber erred in fact or in law on relying on Witness EE for its factual

16 finding. We respectfully submit that the Trial Chamber's findings in

17 relation to Witness EE's evidence do not warrant review by the Appeals

18 Chamber. That concludes my submissions, Your Honour.

19 JUDGE WALD: Thank you, Ms. Rashid. Well, it's a bit under time,

20 it's five after 5.00.

21 THE INTERPRETER: Microphone, please, Your Honour.

22 JUDGE WALD: Thank you complete are your submission in time. We

23 will adjourn in just a second. I have only one question for Mr. Yapa.

24 Mr. Yapa, are you in a position vis-a-vis Mr. Abell's motion here

25 to the President for disclosure of certain portions for the Prosecution's

1 closing brief, are you in a position to tell us whether or not the

2 Prosecution is going to oppose that motion?

3 MR. YAPA: We will not be opposing the motion as such. I think

4 the question earlier was whether we were in a position to admit.

5 JUDGE WALD: Well, there are questions, you're right. If you are

6 in a position to admit or concede, that would, of course, alleviate a lot

7 but if not, I at least wanted to know in terms of pursuing this whether

8 you opposed to the motion. There are two questions. One may alleviate

9 the other.

10 MR. YAPA: In the first position we could say we will not opposing

11 the motion, but we are not in a position to admit.

12 JUDGE WALD: All right I have your position. With that, we will

13 let the Prosecution complete their case tomorrow morning. We start at

14 9.00 and hopefully finish before 5.00 tomorrow. Thank you.

15 I do want to thank the translators for the extra time that they've

16 spent all day. I know it's been an onerous day, and we're much in their

17 debt. Thank you.

18 --- Whereupon the hearing adjourned at 5.07 p.m.,

19 to be reconvened on Wednesday, the 25th day of July,

20 2001, at 9.00 a.m.

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