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IN the APPEALS CHAMBER PROSECUTOR V. JOVICA STANISIC FRANKO SIMATOVIC PUBLIC REDACTED VERSION SIMATOVIC DEFENCE RESPONSE to PROS

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IN the APPEALS CHAMBER PROSECUTOR V. JOVICA STANISIC FRANKO SIMATOVIC PUBLIC REDACTED VERSION SIMATOVIC DEFENCE RESPONSE to PROS IT-03-69-A 1269 A1269 - A1162 09 December 2013 MC THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-03-69-A IN THE APPEALS CHAMBER Before: Judge Theodor Meron, Presiding Judge Carmel Agius Judge Fausto Pocar Judge Liu Daqun Judge Khalida Rachid Khan Registrar: Mr. John Hocking Date: 9 December 2013 PROSECUTOR v. JOVICA STANISIC FRANKO SIMATOVIC PUBLIC REDACTED VERSION SIMATOVIC DEFENCE RESPONSE TO PROSECUTION APPEAL BRIEF The Office of the Prosecutor: Defence Counsel for Mr. Stanisic Mr. Peter Kremer QC Mr. Wayne Jordash Mr. Mathias Marcussen Mr. Scott Martin Defence Counsel for Mr. Simatovic Mr. Mihajlo Bakrac Mr. Vladmir Petrovic Case No. IT-03-69-A 1 9 December 2013 PUBLIC REDACTED VERSION 1268 TABLE OF CONTENTS INTRODUCTION 3 SPECIAL REMARKS 5 GROUND ONE OF THE PROSECUTION APPEAL BRIEF 7 Sub-Ground 1(A) 7 Sub-Ground 1(B) 13 Section D 18 i. Simatovic’s Position 20 ii. SAO Krajina 22 iii. Captain Dragan 26 iv. The Unit 28 v. Role of JNA 30 vi. Lovinac 33 vii. BiH 36 viii. Bosanski Samac and Doboj 38 ix. Pauk 43 x. Operation Udar 45 xi. Other References in Section D 49 xii. Conclusion with Regard to Section D 52 Sub-Ground 1(C) 53 Conclusion on Ground One 65 GROUND TWO OF THE PROSECTUION APPEAL BRIEF 68 Sub-Ground 2(A) 69 Sub-Ground 2(B) 81 Conclusion on Ground Two 98 GROUND THREE OF THE PROSECTUION APPEAL BRIEF 99 i. Stanisic and Simatovic significantly contributed to the implementation 99 of the common criminal purpose in Sanski Most in 1995 ii. Stanisic and Simatovic aided and abetted crimes in Sanski Most 103 iii. Conclusion on Ground Three 105 FINAL CONCLUSION 106 Case No. IT-03-69-A 2 9 December 2013 PUBLIC REDACTED VERSION 1267 INTRODUCTION 1. On 30 May 2013, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia found Franko Simatović not guilty on all counts in the Indictment and delivered a judgement of acquittal. 2. On 28 June 2013, the Prosecution filed its Prosecution Notice of Appeal, advancing the following three grounds of appeal: • Ground One, alleging that Simatović shared the intent for the JCE liability; • Ground Two, alleging that Simatović aided and abetted the crimes in Bosanski Šamac, Doboj and in the SAO Krajina; • Ground Three, alleging that Simatović is responsible for the crimes in the SAO SBWS, Bijeljina, Zvornik and Sanski Most. 3. On 11 September 2013, the Prosecution filed its Prosecution Appeal Brief with detailed arguments of the foregoing grounds of appeal. 4. The Defence Counsel for Franko Simatović finds the Prosecution Appeal Brief to be unfounded in its entirety. The Defence denies all of the allegations contained in the Prosecution Appeal Brief and maintains that the Trial Chamber’s decision to acquit Simatović on all counts in the Indictment is well-founded and lawful. The Defence contends that any other finding on the role, position and responsibility of Franko Simatović for the events he was charged with in the Indictment would have been baseless, unlawful, and in violation of the jurisprudence of this International Tribunal and that of international criminal justice in general. 5. With respect to its first ground of appeal, the Prosecution requests that the Appeals Chamber overturn the Judgement of acquittal; apply the correct legal standard, and convict Simatović under Article 7(1) of the Statute based on his Case No. IT-03-69-A 3 9 December 2013 PUBLIC REDACTED VERSION 1266 participation in and contribution to the JCE. Alternatively, the Prosecution requests that the Appeals Chamber exercise its discretion to remand the case to a bench of the Tribunal to apply the correct legal standard, and to determine the liability of Simatović as alleged in the Indictment. 6. In relation to the second ground of appeal, the Prosecution requests that the Appeals Chamber overturn the acquittal; find that through his acts and omissions Simatović substantially contributed to the commission of the crimes; find that Simatović knew about the commission of the crimes, i.e., that he knew that his acts and omissions would assist the commission of the crimes; find, if required, that Simatović specifically directed acts and omissions towards the commission of the crimes, and to sentence Simatović for aiding and abetting the said crimes. The Prosecution requests that, alternatively, the Appeals Chamber should exercise its discretion to remand the case to a bench of the Tribunal to apply the correct legal standard and to determine the liability of Simatović as alleged in the Indictment. 7. With respect to the third ground of appeal, the Prosecution requests that Simatović be found guilty for his significant contribution to the implementation of the common criminal purpose in Sanski Most through the SDG, and that he be convicted under Article 7(1) for his alleged participation in the JCE, and under Article 7(3) for his alleged role in aiding and abetting the crimes committed in Sanski Most. Case No. IT-03-69-A 4 9 December 2013 PUBLIC REDACTED VERSION 1265 SPECIAL REMARKS 8. At this point, the Defence wishes to express its full consent with the final conclusion of the Trial Chamber to the effect that Franko Simatović is not guilty of the crimes he is charged with in the Indictment and that the Defence fully agrees with the Trial Chamber’s arguments of the Judgement acquitting Franko Simatović on all counts of the Indictment. The Defence, however, also wishes to point out that it there is a number of findings made by the Trial Chamber on certain individual elements of criminal responsibility of the accused the Defence that it disagrees with, and that it would have fiercely contested these, had Franko Simatović been convicted. 9. At this point, we will mention only some of the Trial Chamber’s findings the Defence would have contested, without any intention of addressing all of them in an exhaustive and conclusive manner: for instance, the Defence would have disputed numerous findings the Trial Chamber expressed in Part 3 of the Judgement – Crimes, numerous findings the Trial Chamber stated in Part 4 - Legal Findings on Crimes; the Defence would have most certainly contested also numerous conclusions in Part 6 of the Judgement referring to Simatović’s responsibility - for instance the findings relating to the Unit, to the SDG, the Scorpions, the SAO Krajina police and SAO Krajina TO, to other Serb forces, and to the findings pertaining to some activities Simatović allegedly undertook or participated in. 10. The Defence, however, is neither in a position to contest any of the foregoing findings nor, indeed, is there any need for it. Still, at this point, the Defence needs to emphasize that the Prosecution, under Ground One of its Appeal Brief, contests only the findings relating to Simatović’s mens rea and the wording of the Judgement (paras. 2340-2354 and 2362-2363), while in connection with Ground Two it objects only to the findings in para. 1264 and paras. 2360-2361. In Ground Three of its Appeal Brief, in relation to Simatović, the Prosecution only contests the specific finding related to Sanski Case No. IT-03-69-A 5 9 December 2013 PUBLIC REDACTED VERSION 1264 Most. Evidently, the Prosecution finds all other findings of the Trial Chamber, detailed on 851 pages and within 2363 paragraphs of its Judgement, to be beyond dispute. 11. The Defence points out that in its opinion the Appeals Chamber should dismiss the Prosecution’s Appeal in its entirety, for the reasons specified in this Brief. 12. The Defence wishes also to caution that, should the Appeals Chamber apply a different legal standard with respect to intent for the JCE, in other words, if it should adopt the Prosecution’s standing on specific direction as a requirement for aiding and abetting, and overturn the acquittal and convict the accused, Franko Simatović may find himself in a position where his right to a fair trial and to a two-instance procedure would be se substantially limited and in some aspects completely denied. 13. Should the Appeals Chamber find the Prosecution’s Appeal to be grounded, the only decision the Appeals Chamber could render would be to return the case to the a special bench of the Tribunal for reconsideration with the application of the appropriate legal standard. This would be the only way to protect the accused Simatović’s right to a fair trial and to a two-instance procedure because only then, in case the new judgement were a convicting one, would Simatović have the possibility of filing an appeal against the findings he believes to be unfounded. 14. As already mentioned, even the Prosecution alternatively requests, for grounds one and two, that the Appeals Chamber appoint a special bench of the Tribunal, which would apply the legal standard the Prosecution believes to be correct. Case No. IT-03-69-A 6 9 December 2013 PUBLIC REDACTED VERSION 1263 GROUND ONE OF THE PROSECUTION APPEAL BRIEF 15. In its Prosecution Notice of Appeal, the Prosecutor contends that the Trial Chamber committed an error of law and/or an error of fact in failing to find that Stanišić and Simatović shared the intent to further the common criminal purpose of the JCE.2 16. According to the Prosecutor, the Trial Chamber committed the aforesaid error by failing to adjudicate and/or to provide a reasoned opinion on essential elements of JCE liability3, by applying an erroneous legal standard to the evidence4 and erring in fact by finding that Simatovic did not share the common criminal purpose of the JCE.5 Sub-Ground 1(A) 17.
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