1 Tuesday, 29 January 2008
2 [Open session]
3 [Rule 98 bis]
4 [The accused entered court]
5 [The accused Pusic not present]
6 --- Upon commencing at 2.23 p.m.
7 JUDGE ANTONETTI: [Interpretation] Registrar, kindly call the case,
9 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon
10 everyone in and around the courtroom. This is case number IT-04-74-T, the
11 Prosecutor versus Prlic et al. Thank you, Your Honours.
12 JUDGE ANTONETTI: [Interpretation] Very well. Today we are
13 Tuesday, the 29th of January, 2008. I would like to greet all the
14 representatives of the Prosecution. There are a number of them here
15 today. I would also like to greet all Defence counsel and the accused.
16 I shall now ask the registrar to move into closed session for a
17 few minutes because I would like to make a statement.
18 [Private session]
11 Pages 26933-26934 redacted. Private session
1 [Open session]
2 THE REGISTRAR: Your Honours, we're back in open session.
3 JUDGE ANTONETTI: [Interpretation] I had understood that
4 Ms. Alaburic wanted the floor.
5 MS. ALABURIC: [Interpretation] Good afternoon, to you and to
6 everyone in the courtroom. I would kindly ask you if we can just clear up
7 one thing that is not clear to me at least. Yesterday you rendered a
8 decision on the motion filed by General Petkovic's Defence. It was a
9 subsidiary motion in case the chief motion is not granted. The subsidiary
10 motion was that by the application of Rule 6(D), the 98 bis procedure
11 should be carried out under the Rule as it stood at the time when this
12 trial started. You shall decision is recorded at pages 50 and 51, but we
13 did not get your decision on our chief motion and that was our motion for
14 you to find that the -- that if a single count contains several incidents
15 that prejudices the rights of our client and that the Prosecutor should
16 divide up the counts so that they are now single-incident counts, or that
17 for the purposes of this trial a single count is considered to be a set of
18 single-incident counts and that each part of the count that contains a
19 single incident be treated as such and ruled on as such.
20 I am aware of the fact that ruling on the subsidiary motion means
21 that our chief motion was rejected and that is why we indicated that we
22 will not be filing our 98 bis arguments, but I would like to ask you to
23 avoid any misunderstanding, to render a clear decision on our chief
24 motion. The chief motion is recorded in the transcript yesterday at pages
25 31 and 32.
1 Thank you very much.
2 JUDGE ANTONETTI: [Interpretation] I'm speaking on the control of
3 my colleagues concerning the main motion. We said that an indictment had
4 to be contested during the phase -- the pre-trial phase, and that -- you
5 did not do that, and that therefore it -- there was no possibility in the
6 mind of the Judges or the Chamber to change anything in the indictment.
7 And starting from that point in the decision, the ruling we made, we
8 invited you to deal with paragraphs 229 and following of the indictment
9 about the counts, and this is the point of view of the members of the
10 Chamber. This procedure of 98 bis concerns only the counts, those which
11 are under great titles like persecution, murder, intentional murder, and
12 so on, contain other crimes are subsumed with other crimes which means to
13 my mind that about a certain count. I'll take an example concerning a
14 certain account. I'll take any example.
15 For instance, rape. Rapes there have been in several
16 municipalities, they have occurred, and therefore the title of the chapter
17 is "Rapes." "Rapes." Now, in several municipalities there have been
18 crimes. Rapes have occurred. And the 98 bis procedure is the following:
19 If the Prosecution does not have evidence on rape occurring in
20 such-and-such a municipality, this doesn't mean that there would be
21 acquittal on that count inasmuch as there are other elements concerning
22 other rapes elsewhere. Therefore, because of this there will not be
24 While in the previous system of the 98 bis former text, when in a
25 municipality a rape occurred but was not established and there is no
1 evidence to establish it, then there could be a partial acquittal.
2 So with the new procedure acquittals will take place, will occur,
3 on each crime when the judgement will be rendered.
4 Let's take another example and let us imagine that an indictment,
5 counts are destructions, and the Prosecution has no evidence about
6 destructions. Defence says you have no evidence about any destructions.
7 Then there will be an acquittal on the count of destructions because there
8 is no evidence. But imagine that in an indictment this question of
9 destructions are, let's say, found in ten different municipalities, in
10 nine municipalities there is no evidence, for instance, but in one of the
11 municipalities there would be some evidence. In that case the Chamber
12 will not pass an acquittal because there is one element concerning one
13 municipality. But at the end of the day in the judgement there will be
14 acquittal for the nine examples or municipalities.
15 So the main question which you have raised, which was to
16 dissociate crimes, we have rejected your approach. We considered that we
17 were seized of counts within the 98 bis procedure, and we have to rule on
18 elements. We have evidence which might allow a reasonable trier of fact
19 beyond any doubt seeing this evidence that indeed a crime has been
20 committed. So this is what I wanted to tell you.
21 Now, if my own colleagues are in another mind they will tell me,
22 of course, but I think we all agree.
23 MS. ALABURIC: [Interpretation] Your Honour, thank you very much
24 for your clarification. [French on English channel] ... Understood you
25 originally, but the one thing that is missing from the transcript in our
1 view is that this explanation is indeed the view of the entire Trial
2 Chamber. I would like to have that on the record, please. Thank you.
3 JUDGE ANTONETTI: [Interpretation] Yes, indeed. This is now on the
4 transcript. My colleagues agree. And if any of my colleagues does not
5 agree he can ask for the floor.
6 Now, I'm going to give the floor to the Defence of Mr. Coric who
7 was already ready yesterday.
8 Madam, you now have the floor.
9 MS. TOMASEGOVIC TOMIC: [Interpretation] Good afternoon, Your
10 Honours. Good afternoon to everyone in the courtroom.
11 In light of the Rules of this Tribunal and the standards set by
12 other Trial Chambers in previous cases, and bearing in mind that we come
13 from a legal system where there is no 98 bis principle, I would try to
14 limit my presentation to what I believe to be appropriate in light of the
15 jurisprudence of this court related to Rule 98 bis.
16 In my view, Rule 98 bis is applicable only in those cases where
17 the evidence called by the Prosecution is such that even when seen at its
18 highest, the worst case scenario for the accused and the best case
19 scenario for the Prosecution, are insufficient to support the allegations.
20 Although the Trial Chamber will have to assess all the evidence at the end
21 of the trial, I nevertheless believe that it would not go beyond its
22 authority if having analysed the evidence of the Prosecution for itself
23 and in the context of all the evidence presented in the course of the
24 Prosecution case it decides that the Prosecution has failed to prove the
25 guilt of the accused beyond reasonable doubt regarding some counts of the
2 The burden of proof for all the allegations in the indictment
3 rests on the Prosecution, and the Prosecution has to meet this obligation
4 in the course of its case, because once the Defence starts presenting its
5 case, the guilt of the accused will -- no evidence will be called to prove
6 the guilt of the accused if it has not been proven beyond reasonable doubt
7 in the course of the Prosecution case even in the context of Rule 98 bis.
8 Since only the counts of the indictment in their totality are the
9 subject of Rule 98 bis proceedings, not individual paragraphs, the Defence
10 will limit the presentation only to those counts of the indictment that
11 the Defence believes have not been proven to the standard that is required
12 by Rule 98 bis. But I would like to note that the Prosecution did not
13 adduce evidence about some paragraphs in the indictment.
14 Some of the previous cases such as, for instance, the Naletilic
15 and Martinovic case show that the counts of the indictment are dropped
16 with regard to each individual accused. In our view, the Chamber may
17 decide to drop a count for one of the accused, and this is the only way to
18 ensure the right of each accused to be tried as an individual.
19 I would also like to note at the beginning that the Defence is
20 aware that the Trial Chamber will drop those counts of the indictment it
21 deems appropriate proprio motu. We are counting on that, in fact. For
22 reasons of efficiency and for tactical reasons, the Defence will not be
23 going -- will not be analysing in-depth other counts of the indictment
24 that might also be dropped after the 98 bis arguments and hearings, in our
1 I would like to stress and take this opportunity to stress once
2 again that in our opinion Valentin Coric is innocent on all the charges,
3 and it is only for the reasons that I outlined above and because of the
4 low threshold that is applied in the Rule 98 bis proceedings that I don't
5 want to prove that in detail.
6 As we go on when the Defence will refer to victims and crimes, we
7 will not be examining the facts of the matter, whether the victims are
8 indeed victims and whether crimes really did occur, but the Defence would
9 like to stress that this strategy must not be taken as an admission of
10 those facts.
11 Now I would like to address count 4 of the indictment, rape as a
12 crime against humanity. We will not now be going into the issue whether
13 the act described in the indictment really did happen and whether those
14 acts can be qualified as rape as a crime against humanity. I would rather
15 focus on the -- on trying to show the Trial Chamber that Valentin Coric
16 cannot be considered responsible for any of the rape incidents listed in
17 the indictment.
18 The Prosecution relies on two fundamental modes of responsibility
19 for rape, command responsibility under Article 7(3) of the Statute, and
20 their theory of joint criminal enterprise under Article 7(1) of the
22 Let me begin by trying to ascertain whether any evidence was
23 called which taken at its highest, or if the highest probative value were
24 to be ascribed to it, could support the allegation that Valentin Coric is
25 responsible for any of the rape incidents listed in the indictment. The
1 relevant paragraphs for count 4 in the indictment are paragraphs 15
2 through 17, 38, 39, 57, 59, 99, 109, 141, 211, and 213. I will first be
3 addressing paragraphs from count 4 of the indictment that pertain to
4 alleged rapes in certain municipalities, and the first municipality I will
5 deal with is the municipality of Mostar.
6 Only one rape victim from Mostar testified before this Trial
7 Chamber in this case. That was Witness CX. In her evidence, the witness
8 identified those who raped her as members of the unit under the command of
9 Vinko Martinovic, Stela, and that can be seen at pages 12708 of the
10 transcript, lines 4 through 13.
11 The only other rape victims that we are aware of are (redacted)
12 (redacted). The reason why we know the names of these women
13 is because they voluntarily reported the rape to the crime --
14 JUDGE ANTONETTI: [Interpretation] You should not mention names
15 where -- was it a closed session? Because as a rule, the victims of rape,
16 their names should never be mentioned.
17 MS. TOMASEGOVIC TOMIC: [Interpretation] Your Honour, I do
18 apologise. The reason why I failed to notice that is because these two
19 people did not testify. Their names -- we know them because they are
20 contained in a document that is not under seal. But I do apologise, and I
21 do not think I will be mentioning any other names.
22 JUDGE ANTONETTI: [Interpretation] We'll make an order for these
23 two names, to make sure that they will be struck out so that this will not
24 have any consequences for the families of the persons concerned.
25 So you may continue.
1 MS. TOMASEGOVIC TOMIC: [Interpretation] The reason why we know
2 those people, their names, is because they voluntarily reported the rape
3 to the crime division of the HVO military police, and after they reported
4 the rape an investigation was conducted. This can be seen from Exhibit P
5 03508. The last two names can be found again in Exhibit P 03523, and this
6 is a criminal report filed against the perpetrator of that crime. It
7 indicates that five interviews were conducted and a specialist medical
8 report is appended to this report.
9 Most importantly, there is not a single other piece of evidence,
10 and all the evidence is second-hand, where the names of the victims are
11 mentioned. And if one doesn't know the name of the victim or the identity
12 of the suspects, this kind of evidence cannot serve to support this count
13 of indictment.
14 There is another crucial point. No evidence has been called to
15 show whether any of the perpetrators of such -- such a crime acted with
16 intent or knowledge that their assaults were part of a large-scale or
17 widespread attack on a civilian population. To simplify, the rapes that
18 did occur, and as I've already noted, precious little evidence was called
19 regarding the incidents of rape, all those were unrelated incidents
20 involving criminals who were exploiting the war situation. The war
21 situation also made it impossible or disrupted any efforts to investigate
22 and prosecute crimes, but real efforts were made to prevent crimes and to
23 punish those who were responsible. This can be seen from several sources.
24 For instance, the reports that rapes were investigated and the fact that
25 the alleged rapes occurred during the night. This can be seen from the
1 Exhibit P 03672.
2 At the same time, we have to stress that rape cases were for the
3 most part not reported to the authorities, and this makes an investigation
4 difficult. It is quite clear.
5 The Defence would in particular like to bring to the fore the
6 evidence by Larry Forbes, an UNCIVPOL officer who interviewed two rape
7 victims, and answering questions related to Exhibit P 05800 recorded at
8 page 21423 of the transcript, said that the victim had not been able to
9 identify the perpetrators and that the rape victims that he had
10 interviewed did not want to tell their names to him and were unwilling to
11 report the crime to the HVO authorities, and that the HVO authorities, as
12 far as he knew, did not know of those incidents in the relevant time.
13 The evidence of this same witness shows that only one of the
14 victims interviewed by the witness had actually reported the rape to the
15 HVO police and that the name of the perpetrator was -- I think that there
16 is no reason why I shouldn't mention his name in public session. Perhaps
17 it would be better to just skip the name. You can see that at the page of
18 the transcript, relevant page of the transcript. It might lead to the
19 identification of the victim.
20 Although in Rule 98 bis proceedings the Defence may invoke only
21 the exhibits tendered by the Prosecution, the Defence would like to stress
22 that the case file contains Exhibit 5D 02113. This document shows that
23 the military police is actually looking for this perpetrator.
24 At transcript page 21426, Witness Forbes said that to be fair to
25 the HVO police, he felt he had to say that it would be difficult to
1 prosecute the perpetrators anywhere in the world once a victim leaves the
2 area and is no longer available to the law enforcement agencies. He also
3 said that in the one and only rape case that he dealt with, the one that
4 was reported to the HVO police, the police authorities did take steps that
5 they were in a position to take in the time and in the circumstances that
6 they found themselves in.
7 The Defence will also analyse evidence about the circumstances
8 described in paragraph relating to the municipality of Prozor. Three rape
9 victims from the Prozor municipality are listed in the confidential annex
10 to the indictment, and all of those victims have testified before this
11 Trial Chamber, and that is why we will concentrate on their evidence.
12 Witness BN stated that while she was in the Podgradje village that
13 soldiers would come to the village during the night and would take the
14 women away, but she noted those soldiers did not wear uniforms. They wore
15 civilian clothes or black clothes, and they were their neighbours.
16 While she was in Duge, the women were mistreated by men who were
17 allegedly members of the Kinder Platoon, as it was called, but the witness
18 did not have any direct knowledge as to the affiliation of the
19 perpetrators. What she knew she learned from third parties.
20 The witness also testified that the HVO police had told her that
21 they should not be leaving the village and that they were there for their
22 own safety. The women were afraid of soldiers who would come when the
23 guards were not there to see them.
24 The witness also testified that three armed persons had come into
25 the house at night. Only one of them was wearing a camouflage uniform
1 with HVO insignia. The three men tried to take her away, but her
2 stepmother's sister leaped out of the window and brought the guards back.
3 On that occasion, one of the guards was wounded from a firearm because he
4 tried to protect the witness. And he did not manage to stop those men,
5 and the witness was taken into the woods where she was raped by a man
6 wearing civilian clothes.
7 It must be noted here that the witness had never told anyone at
8 the time that she was raped, and she did not report the rape to anyone.
9 Witness BO also testified about the rape of Witness BN, but since
10 Witness BN testified directly before the Trial Chamber, the Defence is not
11 going to relate to that part of her testimony.
12 Witness BO was raped several times, and one of the perpetrators
13 allegedly was a Muslim member of the HVO. The witness testified that
14 during the night she and other women would hide, because night-time was
15 the most dangerous as far as they were concerned, because the perpetrators
16 usually came at night or in the evening.
17 The witness, among other things, testified and said to the fact
18 that two guards were very good towards them and that they were policemen
19 who tried to protect them but did not succeed in doing so. Furthermore,
20 the witness claims that one military policeman did prevent a possible rape
21 on a previous occasion by that same perpetrator but that the perpetrator
22 returned again when the guard was no longer present.
23 The Defence is fully conscious of the fact that a ruling pursuant
24 to 98 bis can only be founded on Prosecution evidence, but within the
25 context of the statement of this witness, the Defence would like to draw
1 the Trial Chamber's attention to two exhibits, and they are 3D 00429, and
2 3D 00422.
3 Exhibit 3D 00429 is a statement by that same witness to the effect
4 that with the security service centre on the 25th of --
5 MR. SCOTT: Excuse me, Your Honour. Excuse me, Your Honour. I
6 was waiting to see if perhaps we were moving on to -- to different
7 evidence, but while I appreciate the fact that counsel's using a pseudonym
8 and referring to the witnesses, nonetheless this evidence -- much of this
9 evidence was given in closed session, and some of the facts may be
10 sufficiently unique to disclose to some people with some knowledge at
11 least of who some of these people are.
12 So I would ask, Your Honour, that when we're dealing with this
13 sensitive kind of material and when that evidence was given in closed
14 session that notwithstanding the fact that counsel's using the pseudonym,
15 we should go into private session.
16 JUDGE ANTONETTI: [Interpretation] Madam, if you are going to quote
17 elements which would give a possibility of identifying the victims, this
18 should be done in closed session or private session. You have mentioned
19 two documents, 429 and 422 of the 3D series. Should we go to closed
20 session? You are the one who should know. I'm listening to what you're
21 saying, but I don't have all the elements.
22 All right. So let's go to closed session for a while.
23 [Private session]
11 Pages 26947-26948 redacted. Private session
2 [Open session]
3 THE REGISTRAR: Your Honours, we are in open session.
4 MS. TOMASEGOVIC TOMIC: [Interpretation] Your Honours, what is
5 abundantly clear --
6 THE REGISTRAR: I'm sorry, Counsel.
7 Your Honours, we're back in open session.
8 MS. TOMASEGOVIC TOMIC: [Interpretation] What is abundantly clear
9 here is that the rapes were definitely not part of any larger plan. Had
10 such a plan existed, then quite certainly such crimes -- there would have
11 been attempts to hide those crimes before foreign observers. But from the
12 evidence adduced, the contrary would appear be true. From the evidence
13 we've seen, we see that Muslim persons locate -- were located in the
14 village -- municipality of Prozor and that they were free to speak to
15 international monitors and observers, although those persons would
16 announce their arrival with the HVO authorities and that the authorities
17 knew that these crimes had taken place, and had they wished to cover up
18 the evidence they could have refused to have contacts of this kind. And
19 this is borne out by the testimony of Witness Rudy Gerritsen and that was
20 Exhibit P 10030, and what I've just said is recorded on page 10 of that
22 Furthermore, why would such crimes be done under cover of night,
23 and if such a plan had existed, why would those acts have been prosecuted?
24 I think what I'm going to say next is not dangerous for any
25 witness, but I'd like to go into private session for a few minutes just to
1 avoid any misunderstanding.
2 JUDGE ANTONETTI: [Interpretation] Very well. Closed session,
4 [Private session]
11 Page 26951 redacted. Private session
2 [Open session]
3 THE REGISTRAR: Your Honours, we are back in open session.
4 THE INTERPRETER: Microphone, please, Counsel. Microphone,
5 please. I think somebody's microphone is on in addition to the Defence
7 JUDGE ANTONETTI: [Interpretation] I am the culprit.
8 MS. TOMASEGOVIC TOMIC: [Interpretation] The Defence maintains that
9 the Prosecution has not managed to prove Valentin Coric's responsibility
10 on the basis of Article 7(3) of the indictment and count 4 even to satisfy
11 the criteria according to 98 bis, 98 bis Rule and that for the following
12 reasons: The Defence would like to stress that the Prosecution has not
13 proved and shown that the perpetrators of the crime of rape were persons
14 who were subordinate to Valentin Coric, nor that Valentin Coric had
15 effective control over them.
16 In view of the fact that the Prosecution has not proved the above,
17 there is no need to continue an analysis of Valentin Coric's
18 responsibility under Article 7(3) of the Statute.
19 The Defence also maintains that the Prosecution has not proved
20 that Valentin Coric planned, incited, ordered and/or committed the crime
21 under count 4 of the indictment.
22 I would now like to refer to the alleged joint criminal enterprise
24 For him to be held responsible under that charge, the Prosecution
25 must prove that Valentin Coric intended to have the crimes of rape
1 committed and that he took part in the system of abuse or that specific
2 incidents of rape were the natural and foreseeable consequence that could
4 Three basic forms of joint criminal enterprise are stipulated.
5 With relation to the first mode of the joint criminal enterprise, the
6 Defence would like to stress the following: Whether the alleged joint
7 criminal enterprise and Valentin Coric as a part of it intended rapes to
9 I have to stress that I accept in no way that the joint criminal
10 enterprise existed at all, but for the moment let us assume that it did
11 exist as the Prosecution maintains and that through various criminal means
12 he wanted to expel the Muslims from the places they lived in and that
13 rapes would be incorporated on that basis into a plan. Is there any
14 evidence and proof to show that rape was conducted to facilitate this plan
15 and that any of those who were involved in the plan intended rape to take
16 place? The answer to that is quite clearly no. Quite the contrary is
18 What is absolutely crucial, and I cannot stress this enough, is
19 that there is no proof and evidence that Valentin Coric shared any of the
20 criminal goals that are stipulated in the indictment. As an example, I
21 wish to draw the Trial Chamber's attention to Exhibit P 01350, which
22 represents the minutes from a meeting held on the 27th of January, 1993,
23 in the military police, at which meeting the previous event in Gornji
24 Vakuf was discussed, as well as the military police's participation in
25 those events.
1 Among other things, from the minutes we can see that it was the
2 task of the military police to protect the military police in that area as
3 well as the population and to ensure normal passage. It is clearly seen
4 from this document that Valentin Coric considers that it is the duty of
5 the military police to protect and guard the population and without any
6 difference on religious base or ethnic base, and that this was his
7 explicit stand and that he informed the members of the military police of
8 his position.
9 In the entire area covered by the indictment, active measures were
10 taken to try and prevent rape from happening. The crime of rape, as I
11 said earlier on, and as I demonstrated previously, was the subject of
12 investigations and Prosecutions within the frameworks of the possibilities
13 and circumstances.
14 From the way in which the rape crimes were committed based on the
15 testimony of the witnesses, namely that the perpetrators endeavoured to
16 hide the crime and came into villages by night and under cover of darkness
17 and from the nearby forest, they threatened witnesses not to tell anybody
18 about what had happened to them, it is quite clear that the perpetrators
19 knew that what they were doing is something that was prohibited and
20 wouldn't not be tolerated and that severe sanctions would be taken against
21 them if their crimes were to be uncovered.
22 We would like to note in particular that victims did not report
23 rapes as a rule, either because they were afraid that the perpetrators
24 would take their revenge or because of the shame, and that they were
25 unable to identify perpetrators as members of a certain HVO unit. All
1 they did in some cases was to describe them as people wearing civilian
2 clothes, while evidence has shown that the perpetrators of those crimes
3 were investigated and prosecuted.
4 It is also visible from the evidence referenced above that in a
5 very few -- in very few cases when rapes were actually reported the
6 military police did in fact take all the necessary steps to ensure that
7 the perpetrators were prosecuted. The Prosecution does not possess a
8 single piece of evidence to indicate that Valentin Coric, as a member of
9 any joint criminal enterprise, intended or acquiesced to any plan that
10 would include the crime of rape, and no evidence has been adduced to
11 indicate that such a plan existed at all.
12 And it is also important to note the serious effects, the severe
13 effect that the rape may have on the victim notwithstanding that the
14 number of alleged rapes was very low if we compare this to other war
15 zones. If any member of the alleged joint criminal enterprise wanted the
16 rapes to be committed, the number of victims would undoubtedly be much
18 So to conclude, I have to say that no evidence has been called to
19 support the allegations of the Prosecution that a joint criminal
20 enterprise existed, that inter alia intended for the crimes of rape to be
21 committed. The Prosecution therefore has not proven that Valentin Coric
22 is responsible for the crime of rape under Article 7(1), joint criminal
23 enterprise, first, second, and third mode.
24 In the indictment the Prosecution alleges that Valentin Coric was
25 responsible for the crimes listed in counts 1 through 26 of the indictment
1 under Article 7(1) of the Statute. In paragraphs 218, 219, and 220 of the
2 indictment, it is alleged that Valentin Coric planned, instigated, ordered
3 and/or committed crimes he is charged with under this indictment under
4 Article 7(1) of the Statute.
5 In this part of its presentation, Valentin Coric's Defence will
6 say something about the responsibility of Valentin Coric under Article
7 7(1), planning, instigating, ordering or aiding and abetting -- otherwise
8 aiding and abetting for the acts described in the following counts of the
9 indictment: Count 5, inhuman treatment, sexual assault as a grave breach
10 of the Geneva Conventions of 1949, punishable under Statute Articles 2(B);
11 count 19 excessive destruction of property not justified by military
12 necessity and carried out unlawfully and wantonly as a grave breach of the
13 Geneva Conventions of 1949, punishable under Article 2(D) of the Statute;
14 count 20, wanton destruction of cities, towns or villages or devastation
15 not justified by military necessity as a violation of the laws or customs
16 of war, punishable under Article 3 -- 38(B) of the Statute; count 21,
17 destruction or wilful damage to institutions dedicated to religion or
18 education as a violation of the laws or customs of war punishable under
19 Statute Article 3(D); count 24, unlawful attack on civilians, Mostar, a
20 violation of the laws or customs of war as recognised under customary law
21 and Article 51 of Additional Protocol I and Article 13 of Additional
22 Protocol II of the Geneva Conventions of 1949, punishable under Article 3
23 of the Statute; count 25, unlawful infliction of terror on civilians,
24 Mostar, as a violation of the laws or customs of war, recognised under
25 customary law and Article 51 of Additional Protocol I and Article II of
1 the Additional Protocol II of the Geneva Conventions of 1949, punishable
2 under Article 3 of the Statute; and count 26, cruel treatment, Mostar
3 siege, as a violation of the laws or customs of war, as recognised by
4 Article 3(1)(a) of the Geneva Conventions and punishable under Article 3
5 of the Statute.
6 In this section the Defence will not be analysing this mode of
7 responsibility of Valentin Coric for the acts in -- alleged in count 4 of
8 the indictment because it has already been dealt with.
9 At this stage of the proceedings, the Defence will not be going
10 into an analysis of whether the actual crimes were committed, but that is
11 because of the specific nature of the Rule 98 bis proceedings, not because
12 it is not challenging that those crimes were actually committed.
13 In the oral arguments Valentin Coric's Defence will show that the
14 Prosecution has failed to prove individual criminal responsibility of
15 Valentin Coric under this mode of responsibility and for the crimes
16 described in the counts of indictment that were referred to above. In our
17 presentation, we will first specify the requirements that have to be met
18 for responsibility under Article 7(1) to be proven, planning, instigation,
19 ordering, or otherwise aiding and abetting the commission of a criminal
21 The Trial Chamber in its judgement in the Delalic and others case
22 took the view that the Prosecution has to prove the existence of both the
23 actus reus and mens rea for individual criminal responsibility to be
24 ascribed to various degrees of participation in the crime that is under
25 the jurisdiction of the International Criminal Tribunal.
1 The actus reus that is required for this responsibility is the act
2 of participation that in the actual fact contributes to or influences the
3 commission of the crime. That is why the participation has to have a
4 direct and substantial effect on the commission of the illegal act.
5 The requirement that the act of participation has to be committed
6 with the knowledge that it will assist the principal perpetrator in the
7 commission of the crime is -- indicates the required intent or mens rea.
8 There has to be the intent that involves the awareness of the act of
9 participation and a conscious decision to participate through planning,
10 instigating, ordering, committing or aiding and -- or participating in any
11 other way in the commission of the crime.
12 The Defence claims that the Prosecution has not -- has failed to
13 prove that there was this direct act of participation on the part of
14 Valentin Coric that actually contributed to or influenced the commission
15 of those crimes. Consequently, the existence of mens rea or the awareness
16 that he is participating in the commission of these acts has not been
17 proven for Valentin Coric.
18 Planning means or requires that one or several persons are trying
19 to think of ways in which to commit a criminal offence both in the
20 preparatory phase and the commission phase. The Defence claims that the
21 Prosecution has failed to adduce any evidence that Valentin Coric took
22 part in conceiving any of those crimes. In order for the finding of guilt
23 by instigation to be recorded, the Prosecution needed to prove that the
24 accused Valentin Coric, by his actions or by his failure to act either
25 explicitly or implicitly, instigated the perpetrators of the crimes listed
1 in those counts of the indictment to actually commit those crimes.
2 The Defence believes that the Prosecution did not prove that
3 Valentin Coric did in any way instigate the commission of the crimes
4 listed in the above-referenced counts of the indictment.
5 In its judgement in the Kordic case, the Trial Chamber considered
6 that there has to be a causal relationship established between the act of
7 incitement and the physical commission of the crime.
8 In the Kvocka case, the Trial Chamber also found that the causal
9 relationship must be established for the act of instigation, noting that
10 the actus reus required for the instigation to the commission of the crime
11 is any conduct on the part of the accused that instigates another person
12 to act in a particular manner. This requirement has been met if it can be
13 proven that the conduct of the accused was a factor that clearly
14 contributed to the conduct or acts of other person or persons.
15 In the Blaskic case the Trial Chamber noted that the valid
16 definition of instigation or of provoking somebody to do something
17 confirms the view under which it is necessary to prove that there is a
18 cause and effect relationship between the instigation and the actual
19 perpetration of the objective elements of the allegations of the crime.
20 The Defence believes that the Prosecution has failed to adduce any
21 evidence to prove that Valentin Coric instigated the commission of crimes
22 listed in the above-referenced counts of the indictment, and it is
23 therefore immaterial to discuss the cause and effect relationship between
24 the instigation and the actual commission of the crime. Out of an
25 abundance of caution, the Defence would like to note that the Prosecution
1 has failed to prove the existence of such a causal relationship.
2 In -- in the Kordic and Cerkez case, the Trial Chamber noted that
3 it must be proven that the accused had a direct intent to commit a crime.
4 In the Naletilic-Martinovic case the Trial Chamber indicated that the
5 required mens rea is that the accused intended to cause or to lead
6 somebody to the commission of the crime or was aware that there was a
7 substantial possibility that the possible consequence of his acts would be
8 the commission of the crime.
9 The Defence considers that with regard to this mode of
10 responsibility, the Prosecution has failed to adduce any evidence to prove
11 the existence of any direct or indirect intent on the part of Valentin
12 Coric to actually commit those crimes.
13 As for the existence of the responsibility on the basis of the
14 participation of the accused by ordering the Prosecution was supposed to
15 prove that the accused had a criminal intent when he issued orders. The
16 Prosecution has failed to adduce any evidence to prove that Valentin Coric
17 was authorised to issue orders to the perpetrators of the crimes that are
18 listed in the above-referenced counts of the indictment. The Prosecution
19 has failed to prove that Valentin Coric issued any orders to the
20 perpetrators in writing or in any other form explicitly or implicitly, and
21 thus the criminal intent on the part accused has not been proven.
22 As far as aiding and abetting is concerned, the Defence claims
23 that the Prosecution has failed to prove that Valentin Coric aided or
24 abetted the commission of those crimes. It has also failed to prove that
25 Valentin Coric provided any kind of practical assistance, encouragement,
1 or moral support that would have a substantial effect on the commission of
2 these crimes.
3 The position that assistance or aiding must have a substantial
4 effect on the commission of the crimes was taken by the Trial Chamber in
5 the Furundzija case.
6 In the following part of our presentation, we would like to stress
7 primarily that the Prosecution has failed to prove the existence of the
8 joint criminal enterprise as it has been described in the indictment. But
9 because the Defence does not have that much time, the Defence will prove
10 that even if the alleged joint criminal enterprise did exist, the
11 Prosecution has failed to prove the responsibility of Valentin Coric under
12 Article 7(1), joint criminal enterprise, the first and third modes.
13 The Defence contests the responsibility of Valentin Coric under
14 Article 7(1), the second mode of the joint criminal enterprise, but
15 believes that because of the nature of the Rule 98 bis proceedings and
16 because of the nature of the charges levied in those counts, it doesn't
17 make any sense for it to present its arguments on this mode of the
18 responsibility at this stage of the proceedings. This will be done during
19 the Defence case if the accused is not acquitted under Rule 98 bis.
20 In its analysis, the Defence will limit itself to responsibility
21 as described in the following counts of the indictment. I'm just going to
22 mention the numbers because earlier on I stipulated the entire counts, so
23 there's no need to go into that again to save time.
24 JUDGE ANTONETTI: [Interpretation] There's a question on the part
25 of one of the Judges.
1 JUDGE MINDUA: [Interpretation] I'm sorry, Ms. Tomasegovic Tomic.
2 I'm following your demonstration very carefully. You mentioned mens rea.
3 I must say that I am theoretically speaking satisfied with your
4 demonstration, but I haven't quite understood what you meant by
5 responsibility under 7(3) of the Statute of the Tribunal. What did you
6 say? You did not address this. You said you would only address this in
7 the event that the accused would be acquitted under Article 7(1). Am I
8 right in saying that?
9 MS. TOMASEGOVIC TOMIC: [Interpretation] No, I didn't say that,
10 Your Honour. We didn't understand each other. The accused in the
11 indictment is being held responsible for three types or three modes of
12 joint criminal enterprise, the first, second, and third modes, and I said
13 that I'm not going to deal with mode number two because I consider that at
14 this point in time in view of the counts of the indictment that I'm
15 challenging is not necessary.
16 Now, the Trial Chamber will be able to assess whether I am right
17 or not, but that is my position. So I hadn't arrived at 7(3) yet. I
18 haven't come to that, yet. I'm still dealing with 7(1).
19 JUDGE MINDUA: [Interpretation] Thank you very much.
20 MS. TOMASEGOVIC TOMIC: [Interpretation] Thank you, Your Honour.
21 As I was saying, in my analysis the Defence will limit itself to
22 responsibility for acts described in the following counts of the
23 indictment: Count 5, 19, 20, 21, 24, 25, and 26.
24 Let me mention once again that I'm not going to deal with
25 analysing this type of responsibility for Valentin Coric for counts 4 of
1 the indictment, because that is a subject that has already been dealt
3 In the paragraphs of the indictment 17.5, from (a) to (l) is a
4 description of Valentin Coric's part in the alleged joint criminal
6 In the pre-trial brief, the Prosecution, in expounding on the role
7 of Valentin Coric in the alleged joint criminal enterprise and in its
8 attempt to support its claims from paragraph 17.5 of the indictment refers
9 to two documents, who during the proceedings were admitted into evidence
10 and are now exhibits. They are P 00277 and P 04922.
11 The Defence considers that the mentioned exhibits prove nothing
12 more than the fact that Valentin Coric was the chief of the military
13 police administration of the HVO and that in one of these documents he
14 gives instructions for the way in which reporting should be done within
15 the military police, and in the other one he gave instructions on the
16 structure and functioning of the brigade military police.
17 Neither of these two documents proves either the existence of a
18 joint criminal enterprise or the participation of Valentin Coric in some
19 kind of joint criminal enterprise, or any links between Valentin Coric and
20 the crimes stipulated in the indictment, or any kind of unlawful act on
21 the part of Valentin Coric, or any kind of criminal intent and nonchalance
22 of Valentin Coric and negligence of Valentin Coric in relation to the
23 crimes described in the indictment.
24 In paragraph 11 of the indictment, the Prosecution mentions that
25 Valentin Coric joined the HDZ of BH. The Prosecutor, during the
1 proceedings, has not adduced a single shred of evidence to prove that
2 Valentin Coric joined the HDZ in BH or that he was a member of that
3 political party at the time relevant -- relevant time mentioned in the
5 The Prosecutor failed to show that Valentin Coric knew of the
6 alleged joint plan or goal, nor that he knew that criminal acts were being
7 committed with the aim of putting that plan into effect.
8 The Defence primarily wishes to emphasise that the circumstance by
9 which a person performed a certain function or belonged to a certain
10 organisation or group in itself cannot imply responsibility based on
11 Article 7(1) of the Statute in the position taken by the Defence.
12 Otherwise, this would represent responsibility for association, which is
13 not contained in the Statute, neither explicitly or implicitly.
14 By decision of the Supreme Court of the United States dating back
15 to 1962, from the case Robinson versus California, an inviolable standard
16 was established according to which the status of a given person cannot be
17 grounds for that person's liability and punishment.
18 Whether basic -- the basic mode of joint criminal enterprise, in
19 order to establish Valentin Coric's guilt the Prosecution should have
20 first shown intent to commit an act which Valentin Coric shares with the
21 other members of the alleged joint criminal enterprise.
22 Apart from the fact that the Prosecution had to prove joint intent
23 among the various participants of an alleged joint criminal enterprise, it
24 has to show joint intentions on the part of Valentin Coric and others who
25 directly committed one of the crimes enumerated in the counts contained in
1 the indictment.
2 The Defence maintains that the Prosecution did not provide a shred
3 of evidence to prove that it was Valentin Coric's intention to commit the
4 crimes listed in the indictment in its various counts.
5 The Defence maintains that an identification of the perpetrators
6 of crimes is the condition sine qua non for proving the existence of a
7 joint criminal enterprise. The Defence furthermore maintains that the
8 Prosecution in this trial, in these proceedings, and for the acts that I
9 have enumerated, has failed to identify the perpetrators of those criminal
10 acts or did not identify them sufficiently in order to establish a
11 possible connection between the perpetrators and Valentin Coric himself.
12 The Defence maintains that for an identification of the perpetrators, it
13 is not sufficient to state that they were persons wearing uniforms or
14 Croat civilians or even to say that they were members of the HVO without
15 precisely stating the units to which these persons belonged.
16 The Defence therefore considers that the Prosecution has failed to
17 prove who the direct perpetrators of the criminal acts were.
18 If the Trial Chamber decides that in certain cases a perpetrator
19 has been sufficiently identified, then the Defence maintains that in that
20 case the Prosecution has not provided a shred of evidence to show the link
21 between Valentin Coric -- to link Valentin Coric in with any of the
23 The Appeals Chamber in the Brdjanin trial also notes that the
24 Prosecutor must prove the fact that an accused shared a common goal and
25 that the act that is being discussed represents part of a joint criminal
1 act and goal.
2 The Defence maintains that the Prosecution has not produced a
3 shred of evidence to prove that the accused Valentin Coric shared a common
4 goal linked to the counts in the indictment that I enumerated previously.
5 For an extended mode of joint criminal enterprise, the perpetrator
6 must act with the aim of complicity and co-perpetration in the joint
7 criminal enterprise of a group and actively contribute to the joint
8 criminal enterprise or the commission of acts by that group.
9 The Defence maintains that the Prosecution has not produced a
10 single piece of evidence which would prove Valentin Coric's intent to take
11 part in the alleged joint plan nor that he actively contributed to the
12 alleged plan or the commission of the previously enumerated crimes.
13 With an extended joint criminal enterprise, the accused has
14 responsibility for crimes that go beyond the frameworks of a joint
15 criminal enterprise, and if according to the circumstances of the case it
16 was foreseeable that any member of the group would commit such a crime and
17 that he accepted the risk consciously.
18 When we're talking about consciousness and risk, then we must bear
19 in mind the position of the Appeals Chamber held in the Blaskic trial,
20 according to which consciousness of any risk involved, regardless of how
21 low, is not sufficient to proclaim criminal responsibility for serious
22 violations of international humanitarian law.
23 In conformity with this position, the Defence maintains that in
24 the case of an extended joint criminal enterprise, in order to establish
25 guilt on the part of Valentin Coric the Prosecution would have had to have
1 shown that Valentin Coric entered into a joint criminal enterprise in
2 order to commit a different crime with the awareness and consciousness
3 that its perpetration would be reasonably foreseeable and that other
4 participants in the joint criminal enterprise commit the crimes he's being
5 charged on. Not even according to 98 bis criteria has the Prosecution in
6 the Defence's position managed to prove that.
7 In conclusion, the Defence wishes to state the following: The
8 Prosecutor failed to provide a shred of evidence which would indicate that
9 Valentin Coric, either in oral form or written form or any other way, was
10 linked to the perpetration of these criminal acts. There is not a single
11 shred of evidence in any of the documents which would show that Valentin
12 Coric knew of any unlawful criminal goal and that he acted consciously
13 with the aim of furthering and achieving such a goal.
14 Your Honours, I'm now going to move on to another area. I see
15 that we're almost up to the break, so perhaps it would be a good idea if
16 we could take the break now so that I can go on to my next area without
18 JUDGE ANTONETTI: [Interpretation] We shall now have a 20-minute
20 --- Recess taken at 5.18 p.m.
21 --- On resuming at 5.40 p.m.
22 JUDGE ANTONETTI: [Interpretation] I give the floor to the Defence.
23 MS. TOMASEGOVIC TOMIC: [Interpretation] The Defence of Valentin
24 Coric in this part of its submission would like to deal with Valentin
25 Coric's responsibility pursuant to Article 7(3).
1 I do apologise, but I think that the President's microphone is on
2 again and it's causing a problem. Thank you, Your Honours.
3 JUDGE ANTONETTI: [Interpretation] I'm sorry. I've done it again.
4 MS. TOMASEGOVIC TOMIC: [Interpretation] The Defence of Valentin
5 Coric in this part its submission would like to deal with Valentin Coric's
6 responsibility pursuant to Article 7(3) for acts described in the
7 following counts of the indictment: Count 5, count 19, count 20, count
8 21, 24, 25, and 26.
9 In this section the Defence will not deal with an analysis of
10 command responsibility of Valentin Coric for acts under count 4 of the
11 indictment because it has already dealt with that topic.
12 The Defence maintains that the Prosecution has not managed to
13 prove Valentin Coric's responsibility in the sense of Article 7(3) for the
14 counts in the indictment, not even in the extent which would meet the
15 criteria of the proceedings pursuant to Rule 98 bis.
16 In Article 7(3) of the Statute, it says that a superior is not
17 relieved of criminal responsibility for acts committed by a subordinate if
18 he knew or had reason to know that the subordinate was about to commit
19 such acts or had done so and the superior failed to take the necessary and
20 reasonable measures to prevent such acts or to punish the perpetrators
22 From this it clearly follows that the Prosecutor had the number
23 one duty of proving that the acts described in the counts of the
24 indictment were perpetrated by individuals who were subordinate to
25 Valentin Coric.
1 In the case law of this Tribunal, the position has been taken that
2 the relationship of subordination exists when a superior exercises
3 effective control over his subordinates or, rather, when he has the real
4 possibility of preventing such acts or punishing the perpetrators thereof.
5 We can read that, for instance, in paragraph 77 of the first
6 instance judgement in the case against Hadzihasanovic and Kubura. And the
7 same can be seen in the first instance judgement in the Celebici trial,
8 paragraphs 377 and 378. And the judgement of the second instance in the
9 same trial, paragraphs 197 and 256. And the second instance judgement in
10 the Blaskic case in paragraph 67.
11 In the first instance judgement in the Hadzihasanovic and Kubura
12 case, paragraph 78, the Trial Chamber held that an official position of a
13 commander is neither sufficient nor necessary for him to be held
14 responsible for command responsibility. In that same judgement, in
15 paragraph 90, the Trial Chamber stipulates the following: In order to be
16 able to establish a basis for subordination, the Trial Chamber considers
17 it sufficient that exact stipulation be made of the groups to which the
18 perpetrators of a crime belonged and that that group was under the
19 effective control of the accused.
20 The Defence of Valentin Coric considers that the Prosecutor in
21 this trial, as far as the counts in the indictment mentioned are
22 concerned, has not managed to prove who the perpetrators of those criminal
23 acts were in the sense of the group to which they belong. From the
24 evidence that was adduced by the Prosecution, it emerges that the act was
25 either committed by members of the HVO without defining the units in
1 question, or unknown perpetrators very often wearing civilian clothes, the
2 members of groups described as gangs and the like.
3 The Defence would especially like to emphasise that in order to
4 have a relationship of subordination established, the perpetrators of any
5 crime under these counts in the indictment with respect to and in relation
6 to Valentin Coric, the -- the Prosecutor must show that the perpetrators
7 of the crime were members of the military police and of set definite units
8 of the military police, as well as the fact that when the crime was
9 committed Valentin Coric exercised effective control over those persons.
10 The Defence emphasises that the Prosecution has not proved either
11 on the basis of 92 bis [as interpreted] criteria that the perpetrators of
12 the above crimes described in the counts of the indictment mentioned
13 earlier on were individuals who were subordinated to Valentin Coric, nor
14 that Valentin Coric himself had effective control over them.
15 I can see that it says 92 bis in the transcript. I said 98 bis.
16 Although the Defence considers that in view of the fact that the
17 Prosecution has not proved that Valentin Coric exercised effective control
18 over the perpetrators of acts described in the counts of the indictment
19 that we are addressing now and therefore considers that there are no
20 grounds for a further analysis of his responsibility in the sense of
21 Article 7(3) of the Statute, out of an abundance of caution the Defence
22 would nonetheless like to state the following: Mens rea which is required
23 by Article 7(3) of the Statute is determined when the superior knew or had
24 reason to know that a subordinate or subordinates were about to commit
25 such acts or had done so, as was stated in paragraph 91 of the first
1 instance judgement in the Hadzihasanovic-Kubura trial.
2 The Prosecution in this case had to prove that Valentin Coric
3 actually did know that his subordinates committed crimes listed in the
4 aforementioned counts of the indictment, or that they were about to commit
5 them, or alternatively that he had in his possession information that
6 might have warned him about the risk that such crimes would be committed,
7 because they indicated that additional information was to be sought in
8 order to determine whether his subordinates did commit such crimes or were
9 about to commit them.
10 In this case, the Prosecution has not led a single piece of
11 evidence to prove that Valentin Coric took part at any meetings where a
12 discussion was held about whether the crimes listed in the aforementioned
13 counts of the indictment were actually committed or that those crimes are
14 being planned, meetings where any combat operations or objectives of such
15 combat operations were discussed or meetings where the role of his
16 subordinates in such operations was defined.
17 The Prosecution has failed to prove that Valentin Coric received
18 any reports that would show that his subordinates had committed crimes
19 listed in those counts of the indictment previously or any similar crimes.
20 The Prosecution has failed to prove that Valentin Coric issued any orders
21 for action in which such acts or crimes might be committed.
22 The Defence would, in particular, like to note the finding of the
23 Appeals Chamber in the Celebici case, paragraph 226, where the Appeals
24 Chamber notes that the fact that a superior failed to obtain information
25 about the acts of his subordinates does not necessarily mean that he is
1 criminally responsible, because the issue of his criminal responsibility
2 may be raised only if he failed to take necessary and reasonable measures
3 to punish or prevent them.
4 In the Blaskic case, the Appeals Chamber found that a superior may
5 be held responsible for deliberate effort to -- not to obtain information
6 but not for negligence in this respect.
7 The Defence would like to draw the attention of the Trial Chamber
8 to Exhibit P 01350, an exhibit that has already been mentioned, and to
9 reiterate the arguments that have already been presented regarding this
10 exhibit to avoid unnecessary repetition.
11 With regard to the crimes listed in those counts of the
12 indictment, the Prosecution was supposed to prove that Valentin Coric had
13 the real ability to act in the sense of his duty to prevent the commission
14 of crimes and to punish the perpetrators.
15 The Defence, however, believes that the Prosecution has failed to
16 prove that Valentin Coric did not take measures that were within his
17 sphere of capability.
18 We've already spoken about the effective control, and we stated
19 that the Prosecution has -- had failed to prove that Valentin Coric had
20 exercised effective control over the perpetrators. As our presentation
21 continues, we will now deal with the issue whether Valentin Coric was
22 duty-bound, in spite of the above, to punish the perpetrators of crimes
23 regardless of their affiliation to a certain group.
24 In paragraph 12 of the indictment, the Prosecution alleges that
25 one of the duties of the military police is to conduct investigations of
1 crimes committed by the armed forces of Herceg-Bosna. It is the position
2 of the Prosecution that failure to perform this duty implies that Valentin
3 Coric was responsible.
4 Valentin Coric's Defence considers that the burden of proof is on
5 the Prosecution. The Prosecution was supposed to prove that Valentin
6 Coric failed to prosecute the perpetrators of crimes and that he is
7 responsible because the military police failed to do so.
8 In the course of its case, the Prosecution was supposed to prove
9 beyond reasonable doubt what powers the military police and indeed
10 Valentin Coric as its chief had for -- in terms of the criminal
11 prosecution of those who committed crimes.
12 The Prosecution, we contend, had to show and had to prove through
13 documents and the testimony of its legal expert, or at least the factual
14 witness who also had appropriate legal knowledge and who at the times
15 relevant for the indictment held the post in the judiciary or police, what
16 legal acts, what legislation was in force in the time and space relevant
17 for the indictment in the area of criminal law, how this legislation was
18 implemented, and, in particular, what were the duties of the HVO military
19 police under those regulations.
20 The Prosecution has failed to do so. What it did was to tender
21 two exhibits, P 00592 and P 00293. Both exhibits were shown to expert
22 witness William Tomljanovich. These exhibits and the evidence provided by
23 this witness show that the investigation of crimes, sanctioning of
24 military personnel who perpetrated those crimes, and disciplinary
25 procedures against military persons are not in the exclusive jurisdiction
1 of the military police. Witness William Tomljanovich spoke about that at
2 pages 6362, 6363, 6364, 6369, and 6370 of the transcript.
3 Exhibit number P 00128 and the testimony of Witness Marijan Biskic
4 recorded at page 15269 of the transcript, 15269, and Exhibit P 04699, and
5 the testimony of witness Marijan Biskic at page 15270 and 15271 prove that
6 filing of criminal reports and the investigation of crimes committed by
7 military personnel or persons wearing uniforms were not in the exclusive
8 jurisdiction of the military police.
9 In this context, we would also like to draw your attention to the
10 evidence of Prosecution witness C on 19 -- 19th of September, 2007, at
11 page 22559 of the transcript, where the witness says that a mosque is a
12 civilian building and that this is why any investigations about the
13 destruction of such a building are in the jurisdiction of the Ministry of
14 the Interior, the MUP, and that the military police may be involved in
15 such an investigation only if the civilian police notifies the military
16 police that the perpetrators are military personnel.
17 Analysing the evidence of this witness, one can conclude that the
18 military police is not duty-bound to participate in any way in the
19 investigations of crimes against property that must be considered civilian
20 property, except when the civilian police, in investigating such crimes,
21 learns that the crime was actually committed by military personnel and
22 notifies the military police accordingly.
23 The Defence believes that the above shows that the Prosecution has
24 failed to prove that the crimes described in the aforementioned counts of
25 the indictment are in the jurisdiction of the military police and has
1 failed to prove what the duties of the military police are, if indeed
2 there are any. And this is a prerequisite for any debate about whether
3 the military police, and consequently Valentin Coric, did commit such
4 omissions in its work that would entail criminal responsibility.
5 Throughout its case, the Prosecution has been arguing that the
6 competent institutions within the HVO failed to punish the perpetrators of
7 crimes against Muslims. The Prosecution had to prove that the accused
8 Valentin Coric, through the military police or personally, failed to take
9 measures to punish the perpetrators of such crimes, yet the Prosecution
10 has failed to adduce a single piece of relevant evidence that would
11 actually have any probative value. There were Prosecution witnesses who
12 spoke about the fact that nothing had been done, but in very general
13 terms. However, none of those witnesses had any specific knowledge of the
14 measures that had actually been taken, and to a man had not had sufficient
15 qualifications or expertise to be able to testify credibly about that.
16 Their claims that nothing had been done were based only on their
17 knowledge, secondhand knowledge, third-hand knowledge, that crimes
18 continued to be committed.
19 The Defence contends that this kind of evidence is not something
20 that the Trial Chamber should be satisfied with. This kind of evidence is
21 not based on facts. It is based on the witness's own assessments and
22 opinions, and they do not meet the criteria of their similitude or
23 real-life logic.
24 This kind of evidence could be given some little weight if it were
25 to be corroborated by at least a single document describing a specific
1 fact or any kind of valid expert knowledge. Failing that, the Defence
2 contends it has absolutely no probative value.
3 On the other hand, among the exhibits admitted in this trial,
4 there are those that show that the opposite is true, opposite to what the
5 Prosecution is alleging. Thus, for instance, Exhibit P 00950 proves that
6 by the 28th of December, 1992, the military police had already filed over
7 1.000 criminal reports, but no further action was taken because the
8 military police courts were not operating properly.
9 Prosecution witness Marijan Biskic, at page 15278 of the
10 transcript, states that the military police did file criminal reports but
11 that the military courts did not act promptly.
12 Exhibit P 01016 shows how many of the cases were actually dealt
13 with at the investigative division of the military court in Travnik in
14 1993 and 1994. In order for the Prosecutor to show that the opposite was
15 the case, in other words to prove that no proceedings were conducted, no
16 prosecutions were carried out, the Prosecutor should have presented to the
17 Court the registers of all the military and regular courts and the
18 military prosecutors' offices. Had the Prosecutor called a competent
19 witness at least, a witness who would be able to testify reliably and
20 professionally or expertly about those documents, the Defence would have
21 been in a position during the Prosecution case to show those documents to
22 the Prosecution witnesses. The Prosecution, unfortunately, did not do
23 anything of the kind, resorting to drawing conclusions without any
24 evidence to corroborate them, insisting on this argument without any
1 If the Trial Chamber were to accept the Prosecution's argument
2 that the crimes were not prosecuted on the basis of this kind of faulty
3 evidence, almost no evidence at all that was called by the Prosecution,
4 that would mean that the burden of proof was now on the Defence, and this
5 is completely unacceptable.
6 Valentin Coric's Defence considers that the Prosecution has failed
7 to prove that the accused failed to punish persons who committed crimes
8 and that any other conclusion would be erroneous and would unjustifiably
9 transfer the burden of proof from the Prosecution to the Defence, which
10 would then be in a position to have to prove the opposite in the course of
11 the Defence case.
12 Now I'd like to move on to my conclusion, the concluding part of
13 my submission.
14 Conscious of the fact that the topic that I'm going to deal with
15 at the end of my presentation is perhaps not commensurate and appropriate
16 with respect to Rule 98 bis procedure, I nonetheless consider it
17 necessary, briefly, to present a few of my thoughts.
18 I believe that the Trial Chamber and everybody else in the
19 courtroom will agree with me when I say that the Defence of Valentin Coric
20 never throughout these proceedings -- did not prolong the work of the
21 Court without -- unnecessarily prolong the work of the Court, and that
22 whenever it addressed the Court it always endeavoured to be efficacious
23 and to have regard for the time. That is why I ask the Trial Chamber to
24 listen to my arguments. They won't be long, and they won't overstep the
25 time allotted to our Defence team for our submission.
1 Studying case law and presentations so far pursuant to Rule 98
2 bis, I did not come across a single presentation or a single decision
3 which would incorporate the question of cumulative indictments or
4 cumulative charges. It is quite clear to me that an answer to that
5 question can be sought in the fact that case law and jurisprudence has
6 taken the stand that cumulative indictments are allowed and that
7 cumulative findings can be discussed only once a judgement has been made.
8 I, however, consider that if no decision has been made thus far
9 about that, that does not necessarily mean that argumentation on the
10 subject at this stage of the proceedings is unreasonable or unfounded.
11 This stage of the proceedings that we find ourselves in now
12 relates to the fundamental role of the Tribunal in seriously analysing
13 proceedings thus far, and procedure, with the aim of contributing to
14 judicial economy and to enable the Defence to avoid adducing evidence that
15 is superfluous in the Defence case.
16 From the very beginning of the trial and especially after the
17 Prosecution case it is up to the Defence to tackle many allegations made
18 in the indictment and to address them. In most cases before this
19 Tribunal, the final decision as a rule -- in the final decision, as a
20 rule, the accused has been liberated of a number of counts -- has been
21 acquitted of a number of counts. Either the Prosecution has given up on
22 the charges in the indictment or according to 98 bis procedure. So if
23 such a decision is made on time, it accelerates the proceedings and
24 reduces the duration of the trial.
25 Valentin Coric's Defence believes that it is up to the Trial
1 Chamber to drop all charges which only lead to the fact that this trial
2 can be too long.
3 In conformity with Article 20 of the Statute, the Trial Chamber
4 must ensure a speedy trial, an expeditious trial. Article 21 of the
5 Statute states that it is an accused's right to be tried without undue
7 In the International Charter on Civil and Political Rights where
8 that right is enforced, in Article 14(3)(c), the right to be tried within
9 a reasonable space of time appears in Article 9(3). I said Article 14,
10 previously, Article 14(3)(c).
11 The difference may not be of too great an importance. However, it
12 is noteworthy to stress that the principle of the right to a trial without
13 undue delay is guided in essence to the length of the pre-trial phase, the
14 trial itself, and the period between the end of trial and the publishing
15 of a decision.
16 Now, what is reasonable time? That will depend on the nature of
17 the proceedings themselves and the charges made.
18 The Appeals Chamber in Mugiraneza -- in the Migiraneza trial
19 before the International Court for Rwanda stipulates five factors which
20 must be taken into consideration in determining whether the right to a
21 trial without undue delay has been violated, and the complexity of the
22 proceedings and the number of charges is taken into account in that
24 In the Kvocka et al. trial, a decision on an interlocutory appeal
25 of the accused Zigic to the decision of the Trial Chamber of the 5th of
1 December, 2000, and the 25th of May, 2001. The Appeals Chamber took the
2 decision and states that it is the primary duty of the Tribunal to ensure
3 that the accused is given a just, a fair, and expeditious trial. It also
4 added that the right to a speedy and expeditious trial is a component part
5 of the right to a fair trial and that the accused cannot relinquish that
7 In our case, in the decision on preliminary submissions by the
8 Defence, in paragraph 74 it says as follows: "We must stress that the
9 right of the Tribunal consistently holds that the Prosecution can stress
10 cumulative charges in the indictment if each of the charges is supported
11 by relative material facts."
12 The Trial Chamber is satisfied with the fact that the
13 indictment -- I said relevant, of course, not relative in the previous
15 The Trial Chamber is satisfied that the indictment represents the
16 material facts in the proper way which relate to the crimes and the
17 responsibilities in the charges and that cumulative charges can be
18 distributed when all the evidence has been adduced.
19 The Defence considers that at this stage of the proceedings the
20 Prosecutor has already presented its evidence and that stage has been
21 completed. The Prosecution case is over.
22 The crimes according to the jurisdiction of the Tribunal emanate
23 from different sources, customary ones and prescribed ones. And when they
24 were defined at the beginning, when they were first defined, it was not
25 the intention for them to be part of an all-embracing code of serious
1 violations of international humanitarian law. As a result of that we have
2 intermingling, overlapping, and a criminal act can, at the same time, come
3 under the definition of crime against humanity and war crimes.
4 The Prosecutor opted for an exhaustive approach to the indictment,
5 so when several crimes can be linked to an individual act, many of them or
6 all of them are -- is something that the accused is charged of. The ICTR
7 in the Appeals Chamber in the Musema trial confirms the reasons of having
8 a correct attitude towards the accused and taking into account that only a
9 specifically determined crime can justify multiple charges.
10 The Appeals Chamber in the Delalic case states the following:
11 THE INTERPRETER: Interpreter's correction, multiple convictions.
12 MS. TOMASEGOVIC TOMIC: [Interpretation] "Taking into account the
13 differences in approach with respect to this question and within this
14 Tribunal and in other jurisdictions this Appeals Chamber holds that the
15 reasons of correct conduct towards an accused, and taking into account the
16 fact that only separately defined crimes can lead to multiple convictions
17 leads us to the conclusion that multiple criminal counts under the various
18 statutory rules but based on the same proceedings and acts are allowed
19 only if each of the statutory provisions includes a material element,
20 differentiatory element, which is not contained in any other."
21 It is understood that the elements are truly different. Only if
22 they call for proving the fact that is not contained in any other
24 In an articulation of this approach, the Tribunal relies on
25 block -- the Blockburger decision of the Supreme Court of the United
1 States. Blockburger.
2 Where no such test exists, the Trial Chamber must decide with
3 respect to which crime it's going to apply its judgement. This must be
4 done on the basis of the principle that the conviction on the basis of a
5 more specific rule must be supported. So if a set of facts is regulated
6 by two provisions, then the one that contains the material differentiating
7 element must be the one upon which a decision and ruling will be based.
8 Pursuant to the Statute of this Tribunal an accused can stand
9 accused of serious violations of the Geneva Conventions, deprivation of
10 life, wilful killing, and war crimes.
11 The Appeals Chamber in the Delalic trial stressed that conviction
12 on both counts is not appropriate, not allowed, pursuant to the rules of
13 cumulative convictions, stating that in cases of that kind, the accused
14 can be proclaimed guilty for wilful killing because that is a more
15 specific rule.
16 In several cases before this Tribunal the Appeals Chamber held --
17 or Appeals Chambers held that if an accused has been convicted of murder
18 as a crime against humanity, he or she cannot be proclaimed guilty for
19 persecution. For example, in the Vasiljevic, Krstic case. It was also
20 decided that cumulative charges for persecution or convictions for
21 persecution and other inhumane conduct are not allowed because they are
22 crimes of persecution in the form of inhuman acts subsuming the crimes
23 against humanity and inhumane conduct, inhumane treatment.
24 Furthermore, it has been established that the principle of both
25 legal systems, that is to say civil and common law, that the sentence
1 cannot be for a greater or smaller delict that subsumes them, and we rely
2 on lex consumes derogat legi consumptae.
3 The logical grounds for this is that a more serious crime cannot
4 be subsumed without the simultaneous commission of a lesser crime. In our
5 indictment, Valentin Coric's Defence contends there are cumulative charges
6 such as count 2 and count 3, then count 14 and count 13, count 16 and
7 count 17, and count 19 and count 20.
8 I will not now embark on a comparative analysis of the counts in
9 the indictment because I don't think that it is necessary, and I don't
10 think that the Trial Chamber needs any assistance of that kind. I believe
11 that it is possible at this stage of the proceedings to conclude that for
12 some of those, in light of the jurisprudence mentioned above, the Trial
13 Chamber will not be able to convict the accused when the time comes to
14 make the final decision. I also believe that for the sake of economy and
15 efficiency, and in order to speed up the proceedings as I have already
16 indicated, it would be practical to rule on this in this way, to make this
17 kind of a decision at this stage of the proceedings.
18 Finally, the Defence believes that the reasons of fairness and
19 economy and the principle that only different crimes may result in
20 multiple convictions, and this has unambiguously been recognised in the
21 jurisprudence of this Tribunal, militate in favour of the request of this
22 Defence to drop at this stage of the proceedings one of the cumulative
23 charges listed in the indictment and mentioned above.
24 I will conclude this part of my presentation by quoting from the
25 separate opinion of Judge Yakov Ostrovsky and that -- the date is the 17th
1 of March, 1998. That's at paragraph -- paragraph 9 in the Bagosora case.
2 The Judge said: "Justice delayed is justice denied."
3 At the end of my presentation, I would like to say the following:
4 On the basis of everything that has been presented so far, the Defence of
5 Valentin Coric contends that the Prosecution has failed to prove that
6 Valentin Coric is responsible under any mode of responsibility alleged in
7 the indictment for any of the crimes he is charged with in the indictment
8 issued in this case, and consequently the Defence moves that Valentin
9 Coric be acquitted on all 26 counts of the indictment.
10 Valentin Coric's Defence hereby concludes its oral arguments on
11 the Rule 98 bis. Thank you very much.
12 JUDGE ANTONETTI: [Interpretation] I would like Defence counsel to
13 specify what is about to follow. As far as cumulative charging and
14 cumulative convictions are concerned, you seem to be asking the Chamber
15 that it state in its 98 bis ruling that some of the offences that have
16 been qualified under assassination or wilful killing be considered by the
17 Chamber to be cumulative, and therefore the Trial Chamber should only take
18 into account the most serious offence.
19 Let me give you an example because I'm not sure I quite understood
20 what you were saying. This is very difficult what you submitted. Let me
21 give you an example.
22 For instance, murder which is a crime against humanity, and wilful
23 killing which is a grave breach of the Geneva Conventions, you seem to be
24 saying that the Trial Chamber should in that case only consider the crime
25 against humanity and not take into account a serious violation of the
1 Geneva Convention.
2 I'm not sure I have fully understood your submissions. You
3 focussed this -- your attention on the fact that the trial should be
4 expeditious and that there were 26 counts which pertained to tens or
5 thousands of different situations, and therefore the Trial Chamber should
6 play its part, and by way of introduction you mentioned Rule 73 bis, which
7 enabled you to cut down on the number of counts.
8 As you know, all the Chambers have referred to Rule 73 bis. The
9 only Chamber that has not referred to it is this Chamber, because our
10 trial had started before this rule was adopted on the 17th of July, 2003,
11 and that as far as possibility it allowed, in other words, for the
12 Prosecution to, in Article -- in Rule 50 of the Rules of Procedure and
13 Evidence to amend an indictment when it is permitted by the Chamber, but
14 when I questioned the Prosecutor on this particular point, the Prosecutor
15 told us that there was no question as far as he was concerned to amend
16 anything whatsoever.
17 That said, is this the way forward which you would like the Trial
18 Chamber to go towards? In other words, you would like in its decision to
19 state that some counts are duplicated and, therefore, you would like the
20 Trial Chamber to only consider some counts and to state that the other
21 counts should be dismissed. Is that what you have just told us?
22 Maybe I have summarised rather hastily your submissions, but this
23 is what I understood, and I have listened to what you were saying very
24 carefully, and every time you take the floor I listen to you carefully,
25 and I would like to understand whether that is really what you are
1 requesting the Chamber to do.
2 MS. TOMASEGOVIC TOMIC: [Interpretation] I would first of all like
3 to say, Your Honour, that -- well, perhaps this has been wrongly recorded
4 in the transcript. I did not invoke Rule 73 bis. I was talking about
5 paragraph 74 in the decision in this case, the decision on the preliminary
6 motions filed by the Defence. However, what I tried to say, and let me
7 now rephrase it, let me summarise it, it is quite clear to me and this is
8 what I said right at the beginning, that cumulative charges as such are
9 allowed. And it is quite clear to me that in the Rule 98 bis proceedings
10 this has not been addressed yet. But I just wanted to say that in light
11 of the number of cumulative charges and the Defence case that is ahead of
12 us as the stage in the trial, I wanted to propose to the Trial Chamber to
13 consider whether it would be practicable to rule at this stage of the
14 proceedings to see whether it would be possible and indeed opportune to
15 drop some of the counts in the indictment because they contain cumulative
17 I am aware of the fact this is something that the Trial Chamber is
18 not usually asked to do as part of the Rule 98 bis proceedings. This is
19 why I presented the lengthy introduction. This was the objective of my
21 JUDGE ANTONETTI: [Interpretation] Well, the Prosecutor will
22 respond to what you have just said when the time comes.
23 It is now 20 minutes to 7.00, so we shall hear Mr. Ibrisimovic
24 last. Perhaps we can hear him tomorrow if he so wishes.
25 Mr. Ibrisimovic.
1 MR. SAHOTA: Your Honours, I will be making submissions on behalf
2 of Mr. Pusic, and my request is for the hearing to be adjourned until
3 tomorrow afternoon. I anticipate that I would take in the region of an
4 hour, perhaps a little longer, but what is certain is that I won't be able
5 to finish today.
6 JUDGE ANTONETTI: [Interpretation] Very well. I think that is
7 quite right.
8 Mr. Stringer.
9 MR. STRINGER: Thank you, Mr. President. Just to continue on the
10 remarks of counsel in respect of tomorrow's proceedings. It's clear
11 certainly in respect of the accused Mr. Coric that the -- a great deal of
12 preparation and thought went into the 98 bis submissions that were
13 presented today. I expect that that will be the case tomorrow in the
14 submissions being made on behalf of Mr. Pusic.
15 I don't know what the Trial Chamber has in mind for tomorrow. If
16 I could just indicate to you now that I think the Prosecution would resist
17 being asked to proceed right into its response to Mr. Pusic's 98 bis
18 proceedings and that we'd likely to be asking -- we'd likely be asking to
19 come back on Thursday to do that.
20 JUDGE ANTONETTI: [Interpretation] Rest assured we had a schedule
21 which was the subject of a ruling, and in my mind this week it was for
22 Defence counsel to take the floor. If Defence counsel finish tomorrow,
23 all the better, and then on Monday at a quarter past 2.00 you can start.
24 You might not need the rest of the week, but you will have ample time to
25 prepare like that. Everybody will be satisfied.
1 Have I reassured you?
2 MR. SCOTT: Absolutely, Mr. President. Thank you.
3 JUDGE ANTONETTI: [Interpretation] It is now time to adjourn. We
4 shall meet again tomorrow at a quarter past 2.00. Very well. Thank you.
5 --- Whereupon the hearing adjourned at 6.43 p.m.,
6 to be reconvened on Wednesday, the 30th day
7 of January, 2008, at 2.15 p.m.