Prosecutor v. Kupreskic in Europe

Introduction to International Criminal Tribunal for the former Yugoslavia

In May 1993, because of serious violations of international humanitarian law being committed in the territory of the former Yugoslavia, the U.N. Security Council adopted Resolution 827[1] establishing the International Criminal Tribunal for the former Yugoslavia (ICTY).[2] The purpose of the ICTY was fourfold: to bring to justice persons allegedly responsible for violations of international humanitarian law; to render justice to the victims; to deter further crimes; and to contribute to the restoration of peace by promoting reconciliation in the former Yugoslavia.

Like the international military tribunals established after World War II, the ICTY can hear cases involving any of the following offenses committed by natural persons (not orgainzations or governments) within the territory of the former Yugoslavia after 1991:

Grave breaches of the 1949 Geneva Conventions.
Violations of the laws or customs of war.
Genocide.
Crimes against humanity.

In this court decision, the Appeals Chamber of the ICTY examines the criteria for hearing appeals and accepting new evidence on an appeal.

The Judicial Decision

Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991

Judgment of 23 October 2001 posted at https://www.un.org/icty/kupreskic/appeal/judgement/index.htm

JUDGEMENT.

I. INTRODUCTION

1. In the early morning of 16 April 1993, Bosnian Croat forces attacked Ahmici, a small village in central Bosnia. The Trial Chamber found that this attack resulted in the deaths of over a hundred of the Bosnian Muslim civilian inhabitants of the village, the wounding of numerous others and the complete destruction of Muslim houses and two mosques. The Trial Chamber convicted Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic and Vladimir Santic for various forms of crimes against humanity, including persecution, under Article 5 of the Statute of the Tribunal, because of their individual involvement in this attack. The Trial Chamber defined persecution as “the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as other acts prohibited in Article 5”.The Trial Chamber, however, acquitted the Defendants on certain counts, either because it found the evidence to be insufficient or due to cumulative conviction considerations. For the convictions, the Trial Chamber imposed prison sentences ranging between six and twenty-five years.

2. All of the Defendants are now appealing against their convictions…

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III. GENERAL ISSUES

A. Appropriate grounds of appeal

21. In view of the nature of the arguments advanced by some of the parties to this appeal, the Appeals Chamber considers it appropriate to discuss initially the issue of the grounds of appeal that an appellant can legitimately raise. Such a discussion begins with Article 25 of the Statute, which provides the authority for the Appeals Chamber’s function to hear appeals. This provision states:

1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following two grounds:

(a) an error on a question of law invalidating the decision; or
(b) an error of fact which has occasioned a miscarriage of justice.

2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers.

As has been held by the Appeals Chamber on numerous occasions, an appeal is not an opportunity for the parties to reargue their cases. It does not involve a trial de novo. On appeal , parties must limit their arguments to matters that fall within the scope of Article 25 of the Statute.

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B. Reconsideration of factual findings made by the Trial Chamber

1. General principles

29. In order for the Appeals Chamber to overturn a factual finding by the Trial Chamber, an appellant must demonstrate that the Trial Chamber committed a factual error and the error resulted in a miscarriage of justice. The appellant must establish that the error of fact was critical to the verdict reached by the Trial Chamber, thereby resulting in a “grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime.” Consequently, it is not each and every error of fact that will cause the Appeals Chamber to overturn a decision of the Trial Chamber, but only one that has occasioned a miscarriage of justice.

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2. Reconsideration of factual findings where additional evidence has been admitted under Rule 115

(a) Introduction

42. During this appeal, a total of 26 motions were filed before the Appeals Chamber by the Defendants pursuant to Rule 115 of the Rules [of Procedure and Evidence],[1] seeking to admit a wide variety of additional evidence, including the evidence of new witnesses, documents obtained from Croatian State archives and other sources, as well as video-recordings. During the Appeal Hearing, the Defendants contended that the additional evidence would cast new light upon the evidence already presented at trial, putting the Appeals Chamber “in a much better position to see the fuller picture, to evaluate [and] to recognise the limitations of the evidence” before the Trial Chamber upon which the Defendants’ convictions were based. As a result of the applications, seven Appeals Chamber decisions were issued, an oral hearing was held, and an evidentiary hearing conducted involving the testimony of live witnesses.

43. Rule 115 refers to “additional evidence”, but variously during the course of these appellate proceedings, the terms “fresh evidence” and “new evidence” were also used to describe evidence submitted after the trial was over. This Chamber uses all three terms synonymously.

44. Article 25 of the Statute mandates the Appeals Chamber to hear appeals from persons convicted by the Trial Chambers or from the Prosecution on the ground of “an error of fact which has occasioned a miscarriage of justice”. The decision of the Trial Chamber may be affirmed, reversed or revised. As stated above, where an appellant establishes that no reasonable tribunal of fact could have reached a conclusion of guilt upon the evidence before it, the Appeals Chamber will allow the appeal and enter a judgement of acquittal. A miscarriage of justice may equally be occasioned where the evidence before a Trial Chamber appears to be reliable but, in the light of additional evidence presented upon appeal, is exposed as unreliable. It is possible that the Trial Chamber may reach a conclusion of guilt based on the evidence presented at trial that is reasonable at the time (and thus would not fall within the category of error of fact just mentioned ) but, in reality, is incorrect. As a result of a perfectly reasonable decision based upon seemingly reliable evidence before it, the Trial Chamber may have convicted an innocent person. There are a host of reasons as to why evidence that was accepted as reliable by a Trial Chamber may subsequently be shown to be incorrect: the numerous practical difficulties that all parties at trial before the Tribunal face in locating all relevant witnesses and documentary evidence from distant countries, not always co-operative with the Tribunal, is one such problem. There is a real danger of a miscarriage of justice when a Trial Chamber is deprived of crucial evidence relating to the guilt or innocence of an accused that does not surface until the trial is completed – through no fault of the parties. Where, during the appellate proceedings, a party is successful in locating additional evidence demonstrating that a Trial Chamber’s finding of guilt is erroneous, it will fall within the Appeals Chamber’s jurisdiction to hear an appeal on the ground of “an error of fact that has occasioned a miscarriage of justice”.

45. A review of some of the world’s legal systems reveals that, where new facts or new evidence demonstrate that first instance decisions are erroneous, appellate courts are permitted to revisit their factual determinations. Civil law systems provide the accused with the right to appeal to a superior court against a judgement of conviction, which involves reconsideration of both fact and law. Such an appeal enables the merits of a case to be re-determined, with the accused being able to adduce, without any restriction, new evidence that was not before the court of first instance. Additionally, civil law systems normally provide a further appeal to a supreme court confined to errors of law, whereby the court may confirm or quash a conviction, or order a retrial before a lower court.

46. By contrast, in the common law criminal systems, if an appellant is permitted to appeal against a judgement of conviction, there is no automatic entitlement to adduce new evidence before the appellate body. The admission of additional evidence is generally governed by statutory provisions. In England and Wales, the Court of Appeal can receive fresh evidence adduced by an appellant if it is of the view that the evidence “may afford any ground for allowing the appeal”. Similarly, in Canada, Section 683(d) of the Criminal Code, setting out the powers of the Court of Appeal, permits the admission of new evidence where it is considered to be “in the interests of justice”. The test for admission is whether the fresh evidence is of sufficient strength that it might reasonably affect the verdict of the jury.In the United States of America, a person convicted of a federal crime may challenge his or her conviction by petitioning an appellate court of the appropriate jurisdiction for review, and ultimately, reversal of the lower court verdict. However, an appellate court will not, upon review of legal error, review the findings of fact made by the court of first instance; it is not free to disturb the findings of fact made by the original trial court by considering new facts not presented to the trial court. In such a case, the Federal Rules of Criminal Procedure prescribe that the convicted person may file a motion for a new trial on the basis of newly discovered evidence before the trial court, which may grant the motion “if the interests of justice so require”. It is to be noted that motions for new trial based upon newly discovered evidence are disfavoured by the U.S. courts. In Australia , all jurisdictions provide for the admission of new evidence at the appeal stage in the state courts, if the court thinks “it necessary or expedient in the interests of justice”. In South Africa, appellate courts are empowered to hear additional evidence. In order to admit new evidence, the appellate court must consider the evidence to be materially relevant to the outcome of the trial. In Malaysia, following an appeal from a Magistrates’ or Sessions Court judgement to the High Court, a High Court Judge may, if he thinks additional evidence necessary , take that new evidence himself or direct it to be taken by a Magistrate (i.e., in the lower court).

47. It may also be noted that the Rome Statute of the International Criminal Court , like the Statute of the Tribunal, provides that, when it revisits a first instance judgement in light of new evidence showing that such a judgement is erroneous, the Appeals Chamber may remand a “factual issue” to the original Trial Chamber for it to determine a new factual issue that arises on appeal, or may itself call evidence to determine the issue. As to revision of conviction or sentence, a party may apply to the Appeals Chamber to revise a final judgement on the grounds that new evidence has been discovered that “is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict”.

(b) Tribunal jurisprudence relating to Rule 115

48. The Appeals Chamber first addressed the issue of admitting additional evidence under Rule 115 of the Rules during the Tadic appellate proceedings. There , Tadic sought to call more than 80 new witnesses as well as to adduce new documentary material. In its decision of 15 October 1998 (Tadic Rule 115 Decision), the Appeals Chamber considered whether the appropriate vehicle for the presentation of additional evidence during the pendency of appeal was a “review proceeding” under Article 26 of the Statute and Rule 119, or as part of “appellate proceedings” under Article 25 and Rule 115. In Tadic, the Appeals Chamber held that

where an applicant seeks to present a new fact which becomes known only after trial, … Rule 119 is the governing provision. In such a case the Appellant is not seeking to admit additional evidence of a fact that was considered at trial, but rather a new fact”.

Further, “[t]he mere subsequent discovery of evidence of a fact which was known at trial is not itself a new fact within the meaning of Rule 119 of the Rules”. Rule 115 was held to be applicable in Tadic because the appellant proposed to admit “additional evidence of facts put in issue at trial”.

49. The Appeals Chamber thus ruled that Rule 115 could be utilised to admit new evidence on appeal that had not been put before a Trial Chamber provided that it was additional to evidence adduced at trial in respect of what was variously termed, “a fact that was considered at trial”, “a fact which was known at trial” or “facts put in issue at trial”. To summarise, Rule 115 is applicable provided that the new evidence goes to prove an underlying fact that was at issue in the original trial. …

(i) Not available at trial

50. As to Rule 115(A)’s requirement that the evidence “was not available” to the party at trial, the Appeals Chamber in Tadic held, following the approach adopted for Rule 119, that a party must demonstrate that due diligence had been exercised by the moving party at trial. The Statute imposes “a duty to be reasonably diligent” upon trial counsel. … This means, for example, that if a party experiences difficulty in calling a witness to testify at trial, it must apprise the Trial Chamber so that the Chamber may consider imposing coercive or protective measures. Otherwise, the party will not be able to demonstrate that it has acted with reasonable diligence.

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(ii) Admission required in the interests of justice

52. Rule 115(B) requires that “the Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require”. In interpreting this Rule, the Appeals Chamber in Tadic held that

[f]or the purposes of this case, the Chamber considers that the interests of justice require admission only if:

(a) the evidence is relevant to a material issue;
(b) the evidence is credible; and
(c) the evidence is such that it would probably show that the conviction was un[fair].

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76. In summary, the Appeals Chamber may exercise its discretion as to whether to decide upon the admissibility of additional evidence under Rule 115 during the pre -appeal phase of the proceedings or, alternatively, at the same time as the appeal hearing. In determining whether to admit the evidence in the first instance, the relevant question is whether the additional evidence could have had an impact on the trial verdict. In deciding whether to uphold a conviction where additional evidence has been admitted, the relevant question is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence admitted during the appeal proceedings. In the subsequent sections of this judgement, these principles will be applied to the additional evidence admitted under Rule 115 in the current proceedings.

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V. APPEAL AGAINST THE CONVICTION OF VLATKO KUPREŠKIC

A. Introduction

247. Vlatko Kupreskic was found guilty of count 1 of the Amended Indictment, persecution , a crime against humanity punishable under Article 5(h) (persecutions on political , racial or religious grounds) of the Statute of the International Tribunal, on the basis of aiding and abetting. He was acquitted of four other offences….

248. As to aiding and abetting, the mode of participation upon which Vlatko Kupreskic was convicted, the Trial Chamber held:

[a]n aider and abettor as opposed to a principal perpetrator carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain crime; this support must have a substantial effect upon the perpetration of the crime. The requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.

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B. Review of the evidence before the Appeals Chamber

254. To convict Vlatko Kupreskic of aiding and abetting the offence of persecution , the Trial Chamber had to be satisfied beyond reasonable doubt that the elements of the offence had been fulfilled. From the Trial Chamber’s unchallenged definitions , it follows that aiding and abetting the perpetration of persecution requires proof that Vlatko Kupreskic carried out acts specifically directed to assisting, encouraging or lending moral support to the perpetration of the offence of persecution which , in this case, consisted of the deliberate and systematic killing of Bosnian Muslim civilians; the comprehensive destruction of Bosnian Muslim homes and property; and the organised detention and expulsion of the Bosnian Muslims from Ahmici-Santici and its environs. Further, his support must have a substantial effect on the perpetration of the persecutory acts, and he must have known that the acts performed by him assisted the commission of a persecution by others.

255. In a section of the Trial Judgement entitled “Legal Findings”, the Trial Chamber set out its findings as to how the elements of the offence of persecution as a crime against humanity were fulfilled. It held:

796. … In 1992-1993, Vlatko Kupreskic was a member of the police, namely an “Operations Officer for the Prevention of Crimes of Particular State Interest”, with the rank of Inspector 1st class. The accused was not merely concerned to make inventories of supplies for the police, as he instead claims. He was unloading weapons from a car in front of his house in October 1992.

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799. Vlatko Kupreskic was involved in the preparations for the attack in his role as police operations officer and as a resident of the village. He allowed his house to be used for the purposes of the attack and as a place for the troops to gather the night before.

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1. Vlatko Kupreskic was an Operations Officer for the Prevention of Crimes of Particular State Interest

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273. In its Rule 115 Decision of 11 April 2001, the Appeals Chamber considered the unusual circumstances under which the reports came to light. At trial, the Prosecution had not alleged involvement with the police in the Amended Indictment and the Prosecution had not brought forth any such evidence during its case-in-chief. As noted previously, the issue of police involvement first arose during the cross-examination of Ljubica Kupreskic, Vlatko Kupreskic’s wife, and then during his examination-in-chief, Vlatko Kupreskic volunteered the information that he had worked for the police. The two reports were first adduced by the Prosecution during cross-examination of the Vlatko Kupreskic. No other evidence was called to support his version of events, namely that he was merely engaged by the police to produce an inventory.

274. Having heard the live testimony of Miro Lazarevic and Witness ADB, the Appeals Chamber considers them to be reliable and cogent witnesses. However, there are inconsistencies between Vlatko Kupreskic’s version of what he did for the police and their versions. Most significantly, Vlatko Kupreskic testified that he was employed solely for the purpose of undertaking the inventory and that the post of Operations Officer for the Prevention of Crimes of Particular State Interest was probably just a title assigned to him so that he could receive payment. By contrast , according to Miro Lazarevic, Vlatko Kupreskic started work as an inspector for commercial crime. The evidence of Witness ADB and Witness AT also suggests that Vlatko Kupreskic was actually engaged, for a period of time, as an inspector with the police in Vitez. Putting aside the precise nature of Vlatko Kupreskic’s employment , all the evidence overwhelmingly suggests that any duties undertaken by Vlatko Kupreskic ceased in February 1993. There is no satisfactory evidence to find that Vlatko Kupreskic’s employment with the police continued until the time of the Ahmici attack in April 1993. Therefore, in the light of the additional evidence, the Appeals Chamber finds that no reasonable tribunal of fact could conclude that Vlatko Kupreskic was an active operations officer at the time of the attack. That finding therefore cannot be sustained.

4. Vlatko Kupreskic was in Ahmici during the morning, afternoon and in the early evening of 15 April and there was troop activity in and around his house on the evening of 15 April

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(a) The additional evidence

(i) Witness ADA

290. The statement of Witness ADA and associated exhibit were admitted as additional evidence, and the Appeals Chamber heard testimony from him at the evidentiary hearing . Witness ADA, a Muslim inhabitant of Ahmici, testified that, on 15 April 1993, he was on the hill outside Vlatko Kupreskic’s store (Sutra) from 11 or 12 a.m. to 6 p.m., waiting for a delivery of timber. He did not see Vlatko Kupreskic at the store that day or any soldiers. Nor did he see Witness L pass by. Between 8 and 10 p.m., he saw 30 HVO soldiers in front of Branko Kupreskic’s house.

(ii) Witness AT

291. In his testimony in the Kordic trial, Witness AT gave a detailed explanation as to the planning that took place on 15 April 1993 for the attack on Ahmici the following day. At the Hotel Vitez, following the two meetings held by Bla{kic, he was informed that the Military Police would attack Ahmici and Nadioci villages . Witness AT then summoned all members of the Military Police to the television room to be briefed. Later that day, the Military Police went to the “Bungalow” to wait. After midnight (on 16 April) they received further orders about the attack . They made maps of the locations of Muslim and Croat homes in Ahmici and the men were then split into five or six groups. One group was ordered to go to the “Kupreskic houses”. It left for that destination around 4.30 to 4.45 a.m. on 16 April.

(b) Discussion

292. It appears to the Appeals Chamber that the testimony of L, M, O and Witness V’s diary provide the only potential evidence to show that Vlatko Kupreskic carried out acts specifically directed to assist, encourage or lend moral support for the perpetration of persecution. This evidence led the Trial Chamber to conclude that Vlatko Kupreskic had “allowed his house to be used for the purposes of the attack and as a place for the troops to gather the night before”. Vlatko Kupreskic has pointed out the deficiencies concerning this evidence, such as the failure to cross-examine Witness M. In fact it appears from the trial record that Witnesses L and O were also not challenged as to their observations.

293. Witness L’s evidence is summarised briefly in paragraph 437 of the Trial Judgement , setting out the Prosecution evidence as to Vlatko Kupreskic’s role on 15 April . In the section of the Trial Judgement setting out the defence evidence with respect to Vlatko Kupreskic’s role on 15 April, no mention is made of Mirko Vidovic’s evidence refuting Witness L’s observations . In its findings, the Trial Chamber held that it was not prepared to accept that Witness L was mistaken in his identification of the Defendant later on 15 April 1993 and that Witness L, “a neighbour,…knew the accused and there is no reason to think either that (he was( mistaken or that (he was( lying during (his( evidence ”. The mere fact that the Trial Judgement does not refer to the evidence of Mirko Vidovic does not necessarily mean that this piece of evidence was not considered in assessing the value of Witness L’s evidence.

294. As to Witness ADA, his evidence was not compelling upon the issue as to whether Vlatko Kupreskic was outside the Sutra store and whether there were soldiers at his home. There were a number of inconsistencies in his testimony.

295. However, if Witness AT is correct, and the Appeals Chamber accepts that he is in this regard, the plan to attack Ahmici was only announced on the afternoon of 15 April 1993 and the Military Police was the only military unit assigned to attack Ahmici. Further, that unit was not deployed to the “Bungalow” (just outside Ahmici) until late on 15 April, i.e., many hours after Witnesses L, M and O purported to see the troops in and around the house of Vlatko Kupreskic. Witness AT stated that one of the groups of Military Police was sent to the “Kupreskic houses” but they did not leave the “Bungalow” till around 4.30 to 4.45 a.m. on 16 April. The Appeals Chamber considers it unlikely that another set of troops would have been dispatched to Vlatko Kupreskic’s house much earlier in the day, particularly when one considers the timing between the meetings where the plan was announced and the sighting of the troops.

296. In the light of the additional evidence, the Appeals Chamber finds there is a serious doubt as to whether there were troops at Vlatko Kupreskic’s house on the evening of 15 April 1993. The Chamber concludes that no reasonable tribunal of fact could have found beyond reasonable doubt that there were.

C. Conclusion

303. The case against Vlatko Kupreskic at trial was wholly dependent upon circumstantial evidence. The Appeals Chamber first notes that there is nothing to prevent a conviction being based upon such evidence. Circumstantial evidence can often be sufficient to satisfy a fact finder beyond reasonable doubt. The two most crucial issues upon which Vlatko Kupreskic’s appeal really turns relate to the findings that there were troops at Vlatko Kupreskic’s house on 15 April and that he was a member of the police. As to both, the Appeals Chamber has concluded that the findings cannot be upheld. … The Appeals Chamber has determined that the additional evidence has demonstrated errors of fact as to two of them, namely Vlatko Kupreskic’s police membership and the presence of troops at his house on 15 April 1993. The Appeals Chamber finds that no reasonable tribunal of fact could find Vlatko Kupreskic guilty as an aider and abettor of persecution based on the remaining evidence. The Appeals Chamber, therefore, finds that a miscarriage of justice has been occasioned. It allows the appeal of Vlatko Kupreskic and reverses his conviction under count 1 of the Amended Indictment. …

[1] The ICTY’s Rules of Procedure and Evidence are posted at https://www.un.org/icty/basic/rpe/IT32_rev21con.htm.

See Also

Enforcement of Law of Wars
United States v. First Lieutenant William L. Calley, Jr.
The Nuremberg Judgment