IT-08-91-T D14817 - D14745 27 March 2012

14817 SMS

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

Case No. IT-08-91-T IN TRIAL CHAMBER II

Before:

Judge Burton Hall, Presiding Judge Guy Delvoie Judge Frederik Harhoff

Registrar:

Mr. John Hocking

Date Filed:

27 March 2011

THE PROSECUTOR V. MIO STANII STOJAN UPLJANIN Public

ZUPLJANIN MOTION TO REOPEN DEFENCE CASE

The Office of the Prosecutor:

Ms. Joanna Korner QC Mr. Thomas Hannis

Counsel for the Accused:

Mr. Slobodan Zeevi and Mr. Slobodan Cvijeti for Mio Stanii Mr. Dragan Krgovi and Mr. Aleksander Aleksic for Stojan upljanin

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Introduction

1. Following the closure of Zupljanins Defence case on 8 December 2011, on 20 February 2012 the Prosecution disclosed to the Defence for Stojan Zupljanin (Defence) an interview conducted by the Office of the Prosecutor of Srdjo Srdic, pursuant to Rule 68. Prior to disclosure of the interview (which is exculpatory in nature), the Defence had no previous knowledge of the fact that this individual had been interviewed by the Office of the Prosecutor.

2. On 9 March 2012, the Defence requested approximately ten days (until 19 March 2012) to examine and consider the possibility of reopening the Defence case on the basis of this newly obtained evidence.1 Since this time there have been difficulties in obtaining a death certificates for Mr Srdic (which was notified to the Trial Chamber on 19 March 2012), and it is for this reason that the submission of this motion is regrettably slightly delayed.

3. Notwithstanding these delays, the Defence hereby respectfully seeks the Trial Chambers leave to reopen its case for the purpose of admitting into evidence this interview which was recently disclosed by the Prosecution.

4. As the Prosecutions disclosure exercise pursuant to Rule 68 is still ongoing (and is expected to continue until the end of March), the Defence takes this opportunity to notify the Trial Chamber that it may request the inclusion of additional exculpatory documents in due course.

Prosecutor v. Stanisic and Zupljanin, Case No. IT-08-91-T, T27268 (09/03/12).

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The Law

5. A party may be allowed to reopen their case to present fresh evidence not previously in their possession.2 The Appeals Chamber classifies fresh evidence as: a. evidence not in the partys possession at the close of its case and which could not have been obtained with the exercise of reasonable diligence before the close of the case; and b. documents already in the partys possession but whose importance was revealed only in the light of fresh evidence.3

6. Where the Trial Chamber determines that the evidence is admissible they may exclude evidence where its probative value is substantially outweighed by the need to ensure a fair trial under rule 89(D).4 In making this determination, the Chamber will consider the stage of the trial at which the evidence is sought to be adduced and any potential delay that would be caused to the trial.5

7. The Defence is seeking the admission of the interview pursuant to rule 92quater. This provision of the Rules of Procedure and Evidence provides as follows:
Rule 92 quater: (A) The evidence of a person in the form of a written statement or transcript who has subsequently died, or who can no longer with reasonable diligence be traced, or who is by reason of bodily or mental condition unable to testify orally may be admitted, whether or not the written statement is in the form prescribed by Rule 92 bis, if the Trial Chamber: (i) is satisfied of the persons unavailability as set out above; and (ii) finds from the circumstances in which the statement was made and recorded that it is reliable (B) If the evidence goes to proof of acts and conduct of an accused as charged in the indictment, this may be a factor against the admission of such evidence, or that part of it.

Prosecutor v. Prlic et al., Case No. IT-04-84bis-T, Decision on Praljak Defence Motion to Reopen its Case, 23 November 2010, para. 17. 3 Prosecutor v. Prlic et al., Case No. IT-04-84bis-T, Decision on Praljak Defence Motion to Reopen its Case, 23 November 2010, para. 20. 4 Prosecutor v. Prlic et al., Case No. IT-04-84bis-T, Decision on Praljak Defence Motion to Reopen its Case, 23 November 2010, para. 19. 5 Prosecutor v. Staniic et al., Case No. IT-09-69-T, Decision on Prosecution Motion to Reopen Prosecution Case and for the Admission of a Document from the Bar Table, 1 September 2011, para. 14.

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Submissions

8. The Defence submits that the recently disclosed interview of Srdjo Srdic qualifies (see Annex A to this Motion) as fresh evidence and justifies the reopening of the Defence case for its admission. The interview is of high probative value (being taken in an official capacity by representatives of the Office of the Prosecutor) and given it is being relied upon following the close of all other evidence, its admission is not likely to cause a delay to the conclusion of the trial. Furthermore, the Defence have acted expeditiously by seeking its admission promptly following its recent disclosure by the Prosecutor.

The interview qualifies as fresh evidence

9. The Defence is sympathetic to the difficulties that the Prosecution has encountered in attempting to conduct comprehensive searches for exculpatory evidence within their vast repository of evidential materials and accordingly offers no complaint for the very late disclosure of relevant materials.6 However, as a result of this late disclosure, the Defence did not know of the existence of this highly material interview until after the closure of its Defence case. Given its clear relevance in illustrating the central role of the Prijedor Crisis Staff to the events in issue, had it been in the possession of the Defence before the close of its case, the Defence would clearly have sought to admit it at that juncture.

The Srdic interview qualifies under rule 92quater

10. The interview of Srdic is sought to be admitted pursuant to rule 92 quater as he is unavailable to give oral evidence before the Trial Chamber as he unfortunately passed away following their interviews with the Office of the Prosecution. See Annex B to this Motion which contains Srdics death certificate.

11. The Defence submits that the interview of Srdjo Srdic (conducted on 21-22 August 2002) constitutes reliable evidence for the purposes of Rule 92quater because it is a full
6

Prosecutor v. Stanisic and Zupljanin, Case No. IT-08-91-T, T27268 (09/03/12).

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transcript of a recorded interview carried out by several members of the Office of the Prosecution including Suellen Taylor and Nicholas Koumjian.

The interview is of high probative value and does not prejudice the Prosecution nor result in any substantial delay to the proceedings

12. The interview discusses, inter alia, the nature of local Crisis Staff activities during the Indictment period and the genuine desire of individuals to leave Prijedor without any coercion. Central to the Zupljanin Defence case is the fact that local Crisis Staffs acted independently of any overarching central authority and, in fact, in a manner akin to miniautonomous states. Srdics interview also sheds light on the movement of individuals out of Prijedor.

13. Srdics interview indicates that the real power in Prijedor rested with the local Crisis Staff. When discussing a Crisis Staff meeting including members of the army and Drljaca, Srdic stated that Dr. Stakic was the one making all the decisions and had everything under his control.7 Srdic even noted in relation to the Crisis Staff that [t]here was nothing above them.8 According to Srdic, this included ordering of the army to attack Hambarine and Kozarac9 all decisions were made by Crisis Staff.10 He even agreed that there was no-one at the Prijedor crisis staff who would be a contact point with the republic level.11

14. Srdics view of the all powerful Crisis Staff included how Drljaca shielded his police and was the direct authority over the ad hoc centres in Prijedor. Srdic believed that someone, namely Drljaca, protected his officers involved in the Koricanske deaths from Zupljanins investigation.12 Furthermore, Karadzic spoke directly to Drljaca personally in order to
7 8

ET T000-1274-T000-1274, pages 16, 19 and 20. ET T000-1274-T000-1274, page 22. 9 ET T000-1274-T000-1274, page 31. 10 ET T000-1274-T000-1274, page 32. 11 ET T000-1274-T000-1274, page 57. 12 ET T000-1274-T000-1274, page 47.

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secure the release of individuals from the Prijedor centres, not Zupljanin.13

15. Srdics interview also rebuts the testimony of ST-249 who claimed that he overheard a conversation between a small group of people including Pero Curguz (a member of the Red Cross) and Kuruzovic as they discussed the removal of individuals whose homes were destroyed from the area.14 Srdic, president of the Red Cross in Prijedor, however explained how hundreds of people were coming to the courtyard of the Red Cross seeking to leave the territory of the Republika Srpska in any way possible.15 Moreover, Srdic confirmed that the drastic decrease of non-Serb population in Prijedor was due to the efforts of Stakic and the local Crisis Staff.16 Importantly, in Srdics view, it was not the policy of the Serbian leadership.17

16. It is the position of the Defence that this evidence further supports the fact that the Prijedor Crisis Staff acted independently and interfered with the alleged command and control of Mr. Zupljanin over the local SJB. Indeed, Srdics interview gives clear and detailed insight into the inner workings of the Prijedor Crisis Staff and the extent to which Stakic, Drljaca and other local Crisis Staff members exercised power in Prijedor during the Indictment period. The evidence contained in this interview is therefore highly relevant to determining the impact that these local organs had on Mr. Zupljanins ability to exercise effective control over the local municipal police in the Indictment municipalities.

The interview should be admitted into evidence in the interests of justice

17. Given that Srdics interview constitutes probative and reliable fresh evidence, the admission of which would not prejudice the Prosecution or delay the trial, the Zupljanin Defence therefore respectfully requests that leave be granted to reopen the defence case and to admit the interview into evidence.
13 14

ET T000-1274-T000-1274, page 36. ST-249 T.17861-17862 (26/11/10). 15 ET T000-1274-T000-1274, page 35. 16 ET T000-1274-T000-1274, page 55. 17 ET-T000-1274-T000-1274, page 50.

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Relief Sought

18. For the reasons mentioned above, the Defence respectfully requests that the Trial Chamber grant it leave to: a. Reopen the defence case; and b. Admit the interview of Srdo Srdic into evidence pursuant to rule 92 quater.

Word Count: 1,592

Respectfully submitted

Dragan Krgovi Lead Counsel for Stojan upljanin

Aleksandar Aleksic Co-Counsel for Stojan upljanin Dated this 27th day of March 2012 At The Hague, Netherlands

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Appendix A Transcript of interview with Srdjo Srdic

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Appendix B Death Certificate of Srdjo Srdic

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Translation

BOSNIA AND HERZEGOVINA

REPUBLIKA SRPSKA MUNICIPALITY Prijedor

DEATH CERTIFICATE
In the register of deaths for Prijedor, under no. 504 for the year 2008 the death of the following person has been entered:
Last name First name Day, month, year and hour of death Place of death Day, month and year of birth Personal identification number Place and municipality of birth, country of birth if born abroad Citizenship Nationality Religion Address Marital status Full name of spouse and spouses maiden name Full name of parents Father Mother Place of burial Additional entries and remarks: SRDI] Sr|e 16 January 2008 Igalo, Montenegro 7 October 1927 0 7 1 0 9 2

male (sex)

Prijedor, Prjedor

BH and Republika Srpska Serbian Orthodox Kralja Aleksandra street no. 4, Prijedor Widower ---

Krsto SRDI] Gospava SRDI] Igalo

Note: This certificate is valid indefinitely. Responsibility for the use of a certificate which does not contain the latest information entered in the register shall be borne by the person employing it in legal affairs.

Number: 04-202-1-1532/2012 Place: Prijedor Date: 21 March 2012

/stamp/

Milanka STOJNI]
(Registrars signature)

/signed/

Form no. 7 Published and printed by: Official Gazette of Republika Srpska JU /public institution/ pursuant to the Decision of the Government of RS /Republika Srpska/, number: 04/1-012-2-1090/10 (Official Gazette of RS, 55/10)