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2 [Judgement]
3 [Open session]
10 IT-04-74-A, The Prosecutor versus Mr. Prlic, Mr. Stojic, Mr. Praljak,
14 Let me now ask for the appearances of the parties, starting with
15 the Prosecution.
20 And appearances for the Defence. I note, however, that Mr. Pusic
23 Defence counsel.
1 Suzana Tomanovic.
9 morning to you and to all those present in and around the courtroom. On
10 behalf of Mr. Praljak, Ms. Nika Pinter and Ms. Natacha Fauveau-Ivanovic,
1 confirm with the Defence appellants whether they can all follow the
8 Mr. Stojic.
12 Mr. Praljak.
14 completely.
16 Mr. Petkovic.
23 JUDGE AGIUS: I thank you all and good morning to all of you.
1 Scheduling Order issued on 5 October 2017. This will be the last sitting
4 This has been a long and complex case, with much time having
5 passed since the trial proceedings began in 2006 and since the Appeals
6 Chamber was first seized by a Notice of Appeal in June 2013. The appeal
7 hearing in this case was held between 20 and 28 March of this year. The
8 Appeals Chamber would like to thank the parties for their co-operation
13 Valentin Coric, and Berislav Pusic. Not every issue discussed in the
15 this oral summary does not constitute any part of the authoritative
19 between 1992 and 1994, in eight municipalities and five detention centres
2 the Bosnian Croat army, or the HVO, as I will be referring to it. Pusic
3 served as an officer in the military police of the HVO and was later
16 population."
24 on the front lines for labour or as human shields, and the removal of
25 detainees and their families to other territories once they were released
1 from detention. The Trial Chamber found that thousands of persons lay
4 The Trial Chamber concluded that all six Defence appellants were
13 of JCE liability, Prlic, Stojic, Petkovic, and Coric were also convicted
14 of rape and sexual assault, and Defence appellants, with the exception of
21 the Prosecution have lodged appeals against the Trial Judgement, and I
25 witnesses, while Stojic alleges that the Trial Chamber erroneously relied
2 Republic of Croatia who passed away before the proceedings started. The
4 accordingly.
5 With regard to the indictment and other fair trial issues, Stojic
6 and Petkovic allege that the Trial Chamber impermissibly altered the
9 final trial brief indicated that it was pursuing a narrower case than the
10 one for which he was convicted. The Prosecution responds that the Trial
11 Chamber did not depart from the indictment, that the Prosecution's
13 were consistent with the indictment, and that its final trial brief did
14 not alter the notices of its charges. The Appeals Chamber observes that
15 the indictment clearly put the Defence appellants on notice of the crimes
16 and modes of responsibility with which they were charged. The Appeals
18 final trial brief, which did not expressly and formally withdraw any
21 The Appeals Chamber therefore finds, Judge Pocar dissenting, that Stojic
24 against him. The first and second challenges alleging that the Trial
4 exercising his powers as Minister of the Interior since this was not
6 with clear notice that any defect was appropriately cured and that, in
7 any event, Coric's ability to prepare his Defence was not materially
8 impaired. The Appeals Chamber finds that the indictment was ambiguous on
9 this point, thereby rendering it vague and defective. This defect was
11 defective indictment which has not been cured causes prejudice to the
14 was not materially impaired. The Prosecution has not met its burden in
16 grants Coric's appeal, in part, reverses the Trial Chamber 's finding on
22 Prlic and Praljak contend that the Trial Chamber erred when it
1 evidence. The Appeals Chamber finds that they have not demonstrated that
2 the Trial Chamber abused its discretion in admitting the extracts. Prlic
5 rebut these diary extracts, which he did. Praljak was likewise offered
7 nor Stojic, show that no reasonable trier of fact could have relied on
12 Chamber finds that they fail to show any error. With respect to
13 Praljak's claim that the Trial Chamber failed to explain what parts of
14 his testimony it found credible or not credible and why, the Appeals
15 Chamber finds that he does not demonstrate how the lack of a more
21 conclusion that an international armed conflict between the HVO and the
22 Bosnian Muslim army, the ABiH, only existed where active combat was
23 taking place. The Appeals Chamber recalls that the temporal and
25 exact time and place of hostilities, and considers that the Trial
2 the Bosnian territory were sufficient for the grave breaches regime to be
4 end of the armed conflict, so long as the necessary nexus to the armed
16 through the HVO, had actual authority over the relevant municipalities
17 and the Appeals Chamber finds that Prlic, Stojic, Praljak, Petkovic and
18 Coric have failed to show any error by the Trial Chamber in reaching this
19 conclusion.
22 concedes that occupation was not proven at the time that certain property
1 The Trial Chamber further found that the HVO detained two
3 of Geneva Convention IV, rather than being prisoners of war receiving the
6 Praljak, Petkovic and Coric allege that war crimes cannot be committed by
8 Chamber considers that in this case the Trial Chamber correctly took into
14 Petkovic, Coric, and Pusic submit that the Trial Chamber erred in finding
15 that such men were not members of the armed forces. They refer to
17 order. The Trial Chamber duly considered these arguments at trial. The
18 Appeals Chamber further finds that a reasonable trier of fact could have
21 Moreover, the Trial Chamber made findings demonstrating that such men
22 were arrested en masse together with Muslim women, children, and the
23 elderly, and that all Muslims were detained and treated in the same
25 are dismissed.
2 security reasons and therefore justified under Geneva Convention IV. The
5 Trial Chamber concludes that the arrests were not justified, and that
6 Petkovic's orders to arrest these groups of Muslim men also ran afoul of
7 Geneva Convention IV. Petkovic has not shown that the Trial Chamber
10 appellants were convicted. Before doing so, I note that Judge Liu
11 dissents from all portions of the Judgement dealing with the unlawful
13 of war because he is of the view that the Tribunal does not have
14 jurisdiction over this crime and that the elements of this offence, as
16 Praljak appeals the Trial Chamber's finding that the HVO unlawful
19 argues that some Muslims might have gone to the houses voluntarily, that
20 their relocation was necessary to ensure their safety, and that, although
21 restricted, they still enjoyed some freedom of movement and were not
22 detained. The Appeals Chamber dismisses his first two contentions, which
23 ignore the extent of the evidence relied upon by the Trial Chamber or
25 reached the same conclusion. With respect to his third contention, the
2 occur each when civilians are held in houses without guards or where they
3 have some freedom of movement. In light of the findings that the HVO
6 finds no error in the conclusion that these civilians were imprisoned and
8 restriction on their movement under Geneva Convention IV, this would have
9 been subject to strict rules and requirements, which the HVO failed to
14 Trial Chamber. Praljak submits that the Trial Chamber wrongly found that
15 they were forced to leave, instead of considering that they may have left
16 by choice, and that in any event the removal may have been necessary for
17 security or military reasons. The Trial Chamber found that HVO soldiers
18 used trucks to transfer these civilians, fired into the air to force the
19 Muslims to get onto the trucks, and later forced them to walk on foot
24 own unlawful activity. The Trial Chamber found that Praljak shared
1 took place when there was no fighting in the area, and that there was no
8 November 1993 an HVO tank fired at the old bridge of Mostar, rendering it
9 on the verge of collapse by the evening. The Trial Chamber also found
10 that the old bridge was essential for combat activities, and that at the
11 time of attack it was a military target, given that its destruction would
12 cut off practically all possibilities for the ABiH to continue its supply
18 The Trial Chamber also found that the HVO destroyed the old bridge in
19 order to sap the morale of the Muslim population and therefore concluded
21 necessity.
23 findings concerning this event. Stojic alleges that the Trial Chamber
25 to analyse the harm caused in terms of tangible injuries, and should have
2 objective. Praljak and Petkovic also submit that the Trial Chamber erred
4 Praljak and Petkovic have not shown an error, that the Trial Chamber did
6 that the Trial Chamber appropriately considered that the HVO's primary
7 aim was to cause psychological and physical harm of the population. The
8 Appeals Chamber finds, Judge Pocar dissenting, that since the old bridge
9 was a military target at the time of the attack and thus its destruction
15 was not satisfied and therefore overturns the finding that in this case
16 the Prosecution proved that destroying the old bridge constituted the
21 civilians when it destroyed the old bridge. At the appeal hearing, the
23 destruction would have on these other two crimes. In light of the Trial
24 Chamber's finding that the HVO had a military interest in destroying the
25 old bridge and that it was a military target, the Appeals Chamber finds
1 that no reasonable trier of fact could have found that the HVO forces had
3 terror when it destroyed the old bridge. The Appeals Chamber reverses,
4 Judge Pocar dissenting, the Trial Chamber's finding that the destruction
7 relation to the old bridge. The Appeals Chamber also considers that
9 finding that Prlic knew about HVO crimes in destroying the old bridge and
11 destruction.
12 The Trial Chamber further found that the HVO laid siege to east
14 cramped enclave. The population could not leave east Mostar and was
25 The Trial Chamber also found that, during attacks, the HVO
3 Chamber, however, overlooked its finding that these incidents did not
6 customs of war. This was an error, and the Appeals Chamber allows the
8 convictions on appeal.
10 January 1993, the Trial Chamber found that the HVO attacked four
12 killing seven civilians. The Trial Chamber found that the attack on Dusa
16 allow the civilian population to flee. Stojic and Praljak argue that the
18 indiscriminate and in this regard that the house destroyed by the HVO in
19 Dusa was a legitimate military target. The Appeals Chamber finds that
21 not based on any evidence that the weapons used during the attack were
1 the Trial Chamber's reasoning with respect to Dusa applied equally to the
2 attacks on the other three villages, the Appeals Chamber also reverses
5 attack to substantiate its finding that the HVO forces had the mens rea
6 for murder and wilful killing. The Prosecution argues that the Trial
7 Chamber reasonably rejected the argument that the HVO aimed at legitimate
8 military targets, and if the attack was not indiscriminate, then it was a
10 position of the defenders of the village, the Appeals Chamber finds that
11 no reasonable trier of fact could have concluded that the HVO forces in
12 Dusa possessed the mens rea for murder and wilful killing. The Trial
15 relation to the killings in Dusa. The Appeals Chamber also reverses the
17 attacks on the four villages on the same day and the related convictions
18 for persecution.
20 also impacts the Trial Chamber's conclusion that the HVO engaged in a
21 clear pattern of murderous conduct from January until June 1993, when the
23 that the Trial Chamber's remaining findings establish that wilful killing
24 and murder were part of the JCE's common criminal purpose only as of
25 June 1993 and not from January 1993 until June 1993. Consequently, the
3 municipality, as being outside the scope of the JCE. The Appeals Chamber
4 also finds that this reversal impacts the reasonableness of the Trial
7 April 1993 and willingly took this risk and reverses this conclusion.
8 The Trial Chamber also found that following these attacks on Dusa
9 and other villages, HVO soldiers set fire to the houses of Bosnian
14 I now turn to the Trial Chamber's findings on the JCE and the
18 appeal Judgement. For the sake of brevity, I will focus only on key
20 opinion on the scope of the JCE charged by the Prosecution, Judge Pocar
21 does not join the majority opinion with respect to its findings that
25 Praljak, Coric, and Pusic maintain that there are cogent reasons for the
1 Appeals Chamber to depart from its prior jurisprudence that JCE, in all
6 purpose of the JCE, Prlic, Stojic, Praljak, and Pusic challenge the Trial
7 Chamber's finding that this ultimate purpose was shared by Franjo Tudjman
8 and other leaders and was aimed at setting up a Croatian entity that
10 the Croatian people. The Appeals Chamber finds that they have not
18 conclusion that the common criminal purpose shared by the JCE members was
1 issues.
8 Prlic submits that the Trial Chamber erred with respect to his powers in
10 contributed to the JCE, his intent, and his ability to foresee crimes not
11 within the scope of the JCE and willingness to accept this risk. The
12 Appeals Chamber finds no such error, and dismisses his appeal in this
13 respect.
15 commanded and had effective control over the HVO and its military police,
16 that he failed to prevent and punish their crimes, that he used the HVO
21 finds that he fails to establish that the Trial Chamber reached its
23 the finding that he learned and accepted that civilians, who were
25 prison in July 1993, but considers that this does not affect his overall
2 Chamber also finds that the Trial Chamber failed to provide a reasoned
4 on civilians but concludes that Stojic fails to show how this error
5 invalidates his conviction for this crime. Nor has Stojic demonstrated
9 risk that rape, sexual assault, and thefts would take place. His appeals
10 are dismissed.
12 over the HVO and its military police, that he was a conduit between the
13 Croatian government and the HVO in furtherance of the JCE, and that he
18 relinquished his functions within the HVO Main Staff on 9 November 1993,
23 occurred before this date, and also sniping incidents committed in east
24 Mostar the following year. The Appeals Chamber finds that Praljak cannot
1 Appeals Chamber also finds that the Trial Chamber failed to provide a
3 of terror on civilians but concludes that Praljak fails to show how this
4 error invalidates his conviction for this crime. The Appeals Chamber
5 also grants Praljak's appeal that no reasonable trier of fact could have
12 Petkovic contends that the Trial Chamber erred with regard to his
15 foresee crimes not within the scope of the JCE and willingness to accept
18 Do, as well as arrests of Muslim men in Vares town, the Appeals Chamber
19 finds that there was insufficient support for a reasonable trier of fact
24 accepted these crimes. The Appeals Chamber also finds that the Trial
1 Petkovic knew that the Bruno Busic Regiment committed crimes in Gornji
3 support for its conclusion that Petkovic learned of the regiment's crimes
4 three months later. The Appeals Chamber reverses the finding that
9 destruction of two mosques that occurred before the Trial Chamber found
11 the JCE's common criminal purpose. The findings of the Trial Chamber,
15 otherwise dismissed.
17 contribution, as well as his mens rea, that is, both his intent and his
18 ability to foresee crimes not within the scope of the JCE combined with
19 his willingness to take the risk. The Appeals Chamber observes that he
24 Trial Chamber's factual findings and puts forward arguments that are
4 concerning his powers, his involvement in HVO detention centres, and his
8 member of the JCE from April 1993 until April 1994, which the Trial
12 crimes and his intent. The Appeals Chamber finds merit in some aspects
16 Trial Chamber's findings, including those which formed the bedrock for
20 the link between the network of HVO detention centres and the most
21 important JCE members. The Appeals Chamber finds that Pusic has failed
23 contributed significantly to the JCE and intended the crimes which formed
24 part of it.
5 Trial Chamber's Judgement reveals that the Trial Chamber frequently used
10 the Appeals Chamber finds, Judge Liu dissenting, that when assessing
13 Appeals Chamber also finds, Judge Liu dissenting, that the Trial Chamber
15 why it found Prlic, Stojic, Praljak, Petkovic, and Coric not responsible
17 enterprise.
2 errors, engage in a de novo review, find that requisite elements are met,
6 Bench of the Tribunal to apply the correct legal standards to the trial
7 records. The Appeals Chamber observes that if it were to conduct its own
14 conduct, knowledge and intent over more than a year in various locations.
16 trial record and in effect require the Appeals Chamber to decide the case
17 anew. However, an appeal is not a trial de novo and the Appeals Chamber
20 third category of JCE liability are met with respect to the incidents at
21 issue. Moreover, taking into account, inter alia, the protracted length
22 of the proceedings which have been ongoing for more than 13 years, with
25 further proceedings.
2 persons who were detained, the Appeals Chamber finds, Judge Liu
3 dissenting, that the Prosecution has shown that all reasonable doubt as
6 could have acquitted them for these crimes. Thus, the Trial Chamber
11 Petkovic and Coric who respond either that there was no such error or
14 cumulatively under both Articles 7(1) and 7(3) of the Statute, the Trial
19 failing to punish certain crimes. The Appeals Chamber grants this aspect
3 over the perpetrators, knew or had reason to know of the crimes, and
4 failed to punish his subordinates. The Appeals Chamber finds that Coric
5 has not demonstrated any error by the Trial Chamber and dismisses his
6 appeal accordingly.
9 violations of the laws or customs of war, as well as for war crimes and
12 there is a materially distinct element for the same set of crimes, and
15 Sentencing.
17 appealed.
19 that the Trial Chamber failed to take into account Coric's superior
1 Coric and Pusic submit that the Trial Chamber wrongly excluded their time
4 that Rule 101(C) of the Rules provides that credit shall be given for the
10 rejects their submissions that the Trial Chamber erred when it excluded
11 the periods of their provisional release when calculating the time that
15 Chamber has taken into account the extent to which it has reversed
18 serious crimes.
19 I shall now read out the full operative text of the Appeals
20 Chamber disposition.
23 the Rules;
9 murder and inhumane acts as crimes against humanity and wilful killing
14 of the Geneva Convention for the killing of two unarmed men in Toscanica,
10 Judge Pocar dissenting in part with respect to Counts 2, 3, and 21, the
12 19, 21 to 25;
15 incidents as set out in paragraphs 3079 and 3114 of this Judgement, but
17 a remittance;
19 1(E) in part and finds, Judge Liu dissenting, that the Trial Chamber
25 both in part, but declines to enter new convictions against him in this
1 regard;
4 and 3151 of this Judgement, but declines to quash the acquittals in this
11 Prozor municipality between May or June and early July 1993; and,
13 December 1993, Count 20, in part, but declines to enter new convictions
16 respects;
18 credit being given under Rule 101(C) of the Rules for the period he has
25 inhumane acts as crimes against humanity and wilful killings and inhumane
9 killing as a grave breach of the Geneva Convention for the killing of two
11 part;
2 part;
4 JCE, under JCE III responsibility, for murder as a crime against humanity
7 labour or while being used as human shields, but affirms his convictions
8 for the same crimes in relation to these killings under JCE I liability.
11 Judge Pocar dissenting with respect to Counts 2, 3, and 21, the remainder
13 25;
16 joint criminal enterprise for incidents as set out in paragraphs 3018 and
21 and 3151 of this Judgement, but declines to quash the acquittals in this
24 that the Trial Chamber erred by failing to enter convictions for wanton
5 November 1993. That's Count 20, in part. But declines to enter new
8 respects;
10 credit being given under Rule 101(C) of the Rules for the period he has
15 JUDGE AGIUS: Okay. Thank you. Sorry about that. I will try to
16 slow down.
18 Mostar;
25 Judge Pocar dissenting with respect to Counts 2, 3, and 21, the remainder
5 JCE for the incidents as set out in paragraphs 3018, 3030, 3079, and 3114
10 and 3151 of this Judgement, but declines to quash the acquittals in this
13 that the Trial Chamber erred by failing to enter convictions for wanton
17 Prozor Municipality between May or June and early July 1993; and (2)
22 other respects;
24 credit being given under Rule 101(C) of the Rules for the period he has
9 JCE --
12 position here.
16 curtains.
18 interpretation].
20 JUDGE AGIUS: Guard, don't take away the glass that he used when
21 he drank something.
25 with my office.
6 the proceedings.
12 appellants in this case, namely, Mr. Petkovic, Mr. Coric, and Mr. Pusic.
13 They have a right to know the result of their own case and it would also
18 rather than where we were before. The reason is that Courtroom I now is
19 a crime scene, and the Dutch authorities have already made it secure for
23 again.
3 right.
11 municipality, Count 21, in part, but finds him responsible in this regard
17 Judge Pocar dissenting with respect to Counts 2 and 3 and in part Count
19 18-19, 21 to 25;
22 JCE for the incidents as set out in paragraphs 3018, 3030, 3079 and 3114
1 1(E) in part and finds, Judge Liu dissenting, that the Trial Chamber
6 three other detainees in mid-July 1993, Counts 2 and 3, both in part, but
10 and 3151 of this judgement, but declines to quash the acquittals in this
13 that the Trial Chamber erred by failing to enter convictions for wanton
17 Prozor municipality between May or June and early July 1993; and (2)
19 December 1993, Count 20, in part, but declines to enter new convictions
22 other respects;
24 credit being given under Rule 101 of the Rules for the period he has
6 November 1993;
8 other respects;
9 Judge Pocar dissenting with respect to Counts 2 and 3, both in part, and
14 for incidents as set out in paragraphs 3018, 3030, 3079 and 3114 of this
19 and 3151 of this judgement, but declines to quash the acquittals in this
22 that the Trial Chamber erred by failing to enter convictions for wanton
1 municipality between May or June and early July 1993; and (2) mosques in
4 this regard;
8 respects;
10 credit being given under Rule 101(C) of the Rules for the period he has
15 in its entirety;
7 in Vares municipality;
9 Judge Pocar dissenting with respect to Counts 2, 3, and 21, the remainder
10 of Pusic's convictions under Counts 1-3, 6-13, 15-16, 18-19, 21, 24-25;
13 for incidents as set out in paragraphs 3018 and 3030 of the Judgement,
15 retrial or a remittance;
17 that the Trial Chamber erred by failing to enter convictions for wanton
21 municipality between May or June and early July 1993; and, second,
24 this regard;
1 respects;
3 credit being given under Rule 101(C) of the Rules for the period he has
9 early as practicable;
11 that the appellants are to remain in the custody of the Tribunal pending
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