The International Criminal Tribunal for the Former Yugoslavia

The International Criminal Tribunal for the Former Yugoslavia

IT-09-92-T 81116 D81116 - D81078 14 August 2014 MB THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-09-92-T IN THE TRIAL CHAMBER Before: Judge Alphons Orie, Presiding Judge Bakone Justice Moloto Judge Christoph Flügge Registrar: Mr. John Hocking Date Filed: 13 August 2014 THE PROSECUTOR v. RATKO MLADIĆ PUBLIC DEFENCE MOTION PURSUANT TO RULE 92TER TO ADMIT THE WRITTEN TESTIMONY OF DESIMIR SARENAC The Office of the Prosecutor: Mr. Dermot Groome Mr. Peter McCloskey Counsel for the Accused: Mr. Branko Lukić Mr. Miodrag Stojanović IT‐09‐92‐T 13 August 2014 1 IT-09-92-T 81115 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA PROSECUTOR v. RATKO MLADIĆ PUBLIC DEFENCE MOTION PURSUANT TO RULE 92TER TO ADMIT THE WRITTEN TESTIMONY OF DESIMIR SARENAC ________________________________________________________________________ The Accused, RATKO MLADIĆ, by and through his counsel of record, respectfully submits the instant Motion pursuant to Rule 92ter of the Rules of Procedure and Evidence, and in support thereof states as follows: I. INTRODUCTION 1. Pursuant to the Guidance previously expressed by the Trial Chamber, motions offering written statements under Rule 92ter of the Rules of Procedure and Evidence are to be filed at least 30 days before the anticipated testimony of a given witness. Witness DESIMIR SARENAC is currently scheduled to testify approximately within the next 30 days and thus the Defense hereby files the instant motion in compliance with the Chamber’s guidance, and applying for the evidence of this witness to be heard pursuant to Rule 92ter. This Motion is filed publicly, as the witness does not require protective measures. 2. Herein this application is made to tender one written witness statement of the witness, with 25 associated exhibits. At this time the Defense estimates that the evidence-in-chief of this witness will last up to 30 minutes. IT‐09‐92‐T 13 August 2014 2 IT-09-92-T 81114 3. The number of associated exhibits is necessary to render the witness’ testimony complete and meaningful. It represents a savings of multiple hours in direct examination. The Defense does not otherwise seek to deviate from the Chamber’s Guidelines in tendering this witness’ evidence. II. APPLICABLE LAW 4. Under Rule 92ter of the Rules of Procedure and Evidence (hereinafter “Rules”) a Trial Chamber is permitted to admit the evidence in whole or in part in the form of a witness statement or transcripts of a proceeding before the Tribunal, under the following conditions: i) the witness is present in court; ii) the witness is available for cross-examination and any questioning by the Judges; and iii) the witness attests that the written statement or transcript accurately reflects the witness’s declaration and what the witness would say if examined.1 5. A party calling a witness pursuant to Rule 92ter may seek to admit into evidence documents that have been discussed by the witness in his or her witness statement of previous testimony.2 III. DISCUSSION OF ARGUMENTS a) The Chamber Should Admit the Witness Statement 6. The Defence seeks leave of the Chamber to call Branko Davidović as a witness pursuant to Rule 92ter. The Defence submits that the proffered statement, 1 Rule 92ter of the Rules of Procedure and Evidence. 2 Prosecutor v. Karadzic, Case No. IT-95-5/18-T, “Decision on Prosecution’s Submission regarding Additional Transcript Pages from Momcilo Mandic’s Stanisic and Zupljanin Testimony for Admission into Evidence.” 8 September 2010, para.5. IT‐09‐92‐T 13 August 2014 3 IT-09-92-T 81113 (attached hereto as Annex A) meets the requirements of Rule 92ter, and thus should be admitted under that Rule. 7. Witness Davidović’s statement is relevant, reliable and probative, as set forth in greater detail herein below. 8. The witness will be present at trial, and thus will be able to attest to the evidence and will be available to be cross-examined by the Prosecution. Thereby the requirements of Rule 92ter will be fulfilled, and fairness to the Prosecution will be observed. 9. The Defense submits that due to the nature of the Witness’s testimony 30 minutes will be necessary in order to conduct a limited and focused direct examination of the witness to clarify, expand on, and contextualize aspects of his evidence directly relevant to the Defense case. 10. Witness Sarenac was a JNA officer that went to Sarajevo as part of the 4th JNA Corps, 49th mechanized brigade. He became chief of Security of the 1st Sarajevo mechanized brigade and served until May 1995 when he became a battalion commander.3 11. Witness Sarenac’s testimony is relevant to and probative of salient and material issues pertaining to the Indictment. The Defense is confident in that it will, among other things, establish the following: a. The ABIH positioned military forces and installations in civilian zones.4 b. The 1st smbr was made up of members of the local population.5 c. The Primary task of the SRK was to protect the Serb population and homes.6 3 Statement para. 7 4 Statement para. 20, 36, 37, 38, 39, 40, 46, 47, 48, and 49 5 Statement para. 8 IT‐09‐92‐T 13 August 2014 4 IT-09-92-T 81112 d. The Muslim forces mounted offensive actions.7 The SRK prohibited artillery fire into Sarajevo (ie. against civilian facilities).8 e. The VRS instructed soldiers to abide by IHL.9 f. The Serb side observed all ceasefires.10 g. Bosnian Muslims lived next to the Lukavica barracks in the same conditions as Serb families.11 h. The ABIH side shelled their own hospital to try and gain intervention of the outside world on their side.12 b) The Chamber Should Admit the Associated Exhibits 12. Each associated exhibit is directly relevant to the case, and is inseparable and indispensable to the witness’s statement, and can be contextualized and explained most effectively through this witness. They constitute an essential component of the witness’ evidence, and also are of importance to the Defense case, and therefore it is submitted that it is in the interests of justice that they be admitted. 13. There are a total of 25 associated exhibits to this witness statement, as set out in the table that is attached at Public Annex B. 14. The associated exhibits will help assist the Chamber in understanding the evidence of this witness, as the documents relate to providing additional sources and material that support the statement. 6 Statement para. 11 7 Statement para. 12 8 Statement, para 16 9 Statement, para. 19 10 Statement, para. 21 11 Statement, para. 22 12 Statement, para. 44 IT‐09‐92‐T 13 August 2014 5 IT-09-92-T 81111 15. For instance, the following are relevant documents supporting the information conveyed in the statement, and therefore are inseparable to the same: a. 1D03019 – describing the numerical strength of the ABIH forces.13 b. 1D03039 & 1D03058 – describing placement of ABIH forces.14 c. 1D03020 & 1D03033 – statements of defectors that were the bases of locations of the MUP.15 d. 1D03059 & 1D03080 – Documents evidencing the Bosnian Muslim side made people pay to get out of Sarajevo.16 e. 1D03031 – demonstrating the smuggling in Sarajevo.17 f. 1D03078 – demonstrating that the muslims organized paramilitaries in Sarajevo.18 g. 1D03077 & 1D03059 & 1D03080 & 1D04398 – demonstrating the position and encirclement of the SRK by the ABIH and the movement of ABIH forces.19 h. 1D04398 & 1D03036 & 1D03057 & 1D03038 & 1D03060 & 1D03034 & 1D03075 & 1D03079 & 1D03061 & 1D03060– Demonstrating the ABIH mis-use of civilian areas and facilities. i. 1D04399 & 1D03015 – Demonstrating the Muslim use of snipers. j. 1D03076 – Demonstrating that the muslim side shelled their own hospital to try and get the outside world to intervene.20 k. 1D03035 & 1D03037 – Demonstrating the Muslim side producing armaments. 13 Statement, para, 13 14 Statement, para. 14 15 Statement, para. 24 16 Statement, para. 28 17 Statement, para. 29 18 Statement, para. 31 19 Statement, para. 32-34 20 Statement, para. 44 IT‐09‐92‐T 13 August 2014 6 IT-09-92-T 81110 16. The exhibits are all explained in the statement, and result in a savings of time because there would need to be an additional 3 hours of direct examination to go through these same documents in court. They should be admitted as associated exhibits as a matter of court efficiency. III. CONCLUSION WHEREFORE, for the foregoing arguments, the Defense respectfully requests that the Chamber issue an order: a. Granting the Defense leave to call Desimir Sarenac as a witness pursuant to Rule 92ter. b. Granting the Defense leave to admit the proffered statement, (attached hereto as Annex A) under Rule 92ter. c. Granting the Defense leave to admit the associated exhibits, (attached hereto as Annex B) under Rule 92ter. Word Count: 1,200 RESPECTFULLY SUBMITTED BY: Branko Lukić Miodrag Stojanović Lead Counsel for Ratko Mladić Co-Counsel for Ratko Mladić IT‐09‐92‐T 13 August 2014 7 IT-09-92-T 81109 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-09-92-T THE PROSECUTOR v. RATKO MLADIĆ PUBLIC ANNEX A _____________________________________________________________________ IT‐09‐92‐T 13 August 2014 8 IT-09-92-T 81108 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 WITNESS STATEMENT WITNESS INFORMATION: Surname: ŠARENAC Name: Desimir Father’s name: Novica Date of birth: 5 May 1948 Ethnicity: Serb Date(s) of interview(s): 5 July 2014 Interview(s) conducted by: Saša Lukić Language used during the interview: Serbian Signature of the Witness: ______/signature/ _______________ 1 IT-09-92-T 81107 WITNESS STATEMENT 1.

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