THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

IT-04-74-A 142 A142 - A126 28 June 2013 MB THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-04-74-A IN THE APPEALS CHAMBER Before: Registrar: Judge Theodor Meron, Presiding Judge Carmel Agius Judge Patrick Robinson Judge Fausto Pocar Judge Liu Daquin Mr. John Hocking Date filed: THE PROSECUTOR v. JADRANKO PRLIĆ BRUNO STOJIĆ SLOBODAN PRALJAK MILIVOJ PETKOVIĆ VALENTIN ĆORIĆ and BERISLAV PUŠIĆ PUBLIC NOTICE OF APPEAL ON BEHALF OF BERISLAV PUŠIĆ The Office of the Prosecutor Counsel for Jadranko Prlić Counsel for Bruno Stojić Mr. Douglas Stringer Mr. Michael G. Karnavas Ms. Senka Nožica Mr. Mathias Marcussen Ms. Suzana Tomanović Mr. Karim A. A. Khan QC Counsel for Slobodan Praljak Counsel for Milivoj Petković Ms. Nika Pinter Ms. Nataša Fauveau-Ivanović Counsel for Valentin Ćorić Ms. Vesna Alaburić Mr. Guénaël Mettraux Counsel for Berislav Pušić Ms. Dijana Tomašegović-Tomić Mr. Fahrudin Ibrišimović Mr. Dražen Plavec Mr. Jairaj Roger Sahota Case No. IT-04-74-A

141 INTRODUCTION 1. On the 29 May 2013 the Trial Chamber convicted the Appellant pursuant to Article 7(1) of the Statute for Counts 6 to 13, 15, 16 and 18 of the Indictment. The Trial Chamber by majority, Judge Antonetti dissenting, convicted the Appellant on the basis of Article 7(1) of the Statute for Counts 1 to 3, 19, 21, 24 and 25 of the Indictment. The Appellant was acquitted unanimously of Counts 4, 5, 22 and 23. On the basis of the principles relating to cumulative convictions, the Trial Chamber did not enter a conviction for Counts 14, 17 and 20 of the Indictment. 2. Further to Rule 108 of the Rules of Procedure and Evidence ( RPE ) and Article 25 of the Statute of the Tribunal ( the Statute ), The Defence for Berislav Pušić ( the Defence ) files this Notice of Appeal against his conviction and the sentence imposed in the Judgement. 3. The Appellant is contesting every finding of guilt returned by the Trial Chamber in addition to those findings where he was found responsible without a conviction being entered. 4. The grounds of appeal in this notice consist of errors of law that invalidate the Judgement or factual errors that no reasonable tribunal of fact could have reached resulting in a miscarriage of justice. Whether taken cumulatively or individually, the grounds of appeal identified satisfy the relevant standards of review. 5. To date the Appellant has not been provided with a copy of the Judgement in a language that he understands, as recognised by the Statute. Nor have his lawyers, who are not proficient in French, received a copy in their working language, English. 1 Accordingly, the Defence reserve the right to seek leave to amend this notice after he has received, read and analysed the Judgement in his own language and after his lawyers have done so with an English translation. 1 This Notice of Appeal is based on an unofficial English translation of the trial Chamber's Judgement ('Judgement') and the Defence therefore reserve the right to seek leave to amend this notice once an official English translation is available. In its Decision on Motions for an Extension of Time to File Notices of Appeal and Other Relief, dated 21 June 2013, the Appeals Chamber also recognised that subject to good cause shown, a variation of grounds of appeal could be requested once copies of the Judgement in English and BCS are available (page 3.) Case No. IT-04-74-A 1

140 6. Further, the Appellant reserves the right to join, adopt or supplement any of the arguments advanced by the co-appellants in this case. GROUNDS OF APPEAL 7. The Notice of Appeal includes 8 grounds of appeal. I THE TRIAL CHAMBER ERRED IN FACT AND LAW IN ITS ASSESSMENT OF MR PUŠIĆ S POWERS, FUNCTIONS AND AUTHORITY WITHIN THE HVO No Decision Making Authority 8. The Chamber erred in fact and law in concluding that Berislav Pušić had any powers or decision making authority over any HVO personnel or structures. This error constitutes a miscarriage of justice warranting an acquittal on all counts where a finding of guilt has been entered. 8.1. The Trial Chamber erred in fact and law in that its findings concerning Berislav Pušić s powers and authority are contrary to the evidence of many Prosecution witnesses. The Trial Chamber failed to attach sufficient weight to their evidence. 8.2. The Trial Chamber erred in fact and law in that its findings concerning Berislav Pušić s powers and authority rely on the evidence of witnesses whose credibility and /or reliability was allegedly in serious doubt. The Trial Chamber failed to scrutinise the evidence of these witnesses with the required caution. 8.3. The Trial Chamber erred in fact and law in that its findings concerning Berislav Pušić s powers and authority rely on the evidence of non-hvo witnesses who had limited knowledge of the internal structure and dynamics of the HVO. The Trial Chamber failed to scrutinise the evidence of these witnesses with the required caution. Case No. IT-04-74-A 2

139 8.4. The Trial Chamber erred in fact and law in that its findings concerning Berislav Pušić s powers and authority contradict other findings of the Trial Chamber. 8.5. The Trial Chamber erred in fact and law in that its findings concerning Berislav Pušić s powers and authority take the form of vague and generalised assertions unsupported by the evidence. 8.6. The Trial Chamber erred in fact and law in that its findings concerning Berislav Pušić s powers and authority rely on documentary evidence that was not subject to oral testimony. The Trial Chamber failed to scrutinise this evidence with the required caution. 8.7. The Trial Chamber erred in fact and law in that its findings concerning Berislav Pušić s powers and authority rely on documentary evidence that was the subject of contradictory oral testimony. The Trial Chamber failed to scrutinise this evidence with the required caution. Failure to Provide a Reasoned Opinion 9. The Trial Chamber failed to provide sufficient reasons for any of its findings concerning Berislav Pušić s powers and authority. II THE TRIAL CHAMBER ERRED IN LAW IN APPLYING JOINT CRIMINAL ENTERPRISE ( JCE ) LIABILITY 10. The Trial Chamber erred in law when applying JCE, as a form of liability in the commission of serious international crimes in the Former Yugoslavia, contrary to customary international law. Case No. IT-04-74-A 3

138 III THE TRIAL CHAMBER ERRED IN FACT AND LAW IN CONCLUDING THAT A JCE EXISTED 11. The Trial Chamber erred in fact and law when inferring from circumstantial evidence and in the absence of any express agreement that there existed beyond reasonable doubt any common plan and shared intent between Franjo Tuđman and the leaders of the JCE to commit any of the crimes listed in paragraph 68. of Volume III of the Judgement. The Greater Croatia JCE 12. The Trial Chamber s JCE theory is based on an erroneous interpretation and analysis of Franjo Tuđman s actions, motives and beliefs and those of the Croatian Government and HVO leadership which amounts to a form of historical revisionism. The Trial Chamber has erred in fact in finding beyond reasonable doubt that there was a consensus amongst those individuals now characterised as JCE leaders in support of the creation of a Croatian territorial entity defined by the borders of the Croatian Banovina of 1939 and has erred in legally characterising this agreement as a Joint Criminal Enterprise. 13. As a consequence of a biased and erroneous historical interpretation of events leading to the formation of the HZ (R) HB administration, the Trial Chamber has committed a series of discernible errors: 13.1. The Trial Chamber has erred in fact and law when concluding beyond reasonable doubt that there existed any agreement and shared intent between Franjo Tuđman and the leaders of the JCE to establish a Croatian state adopting the boundaries of the Croatian Banovina of 1939 allowing the reunification of the Croatian people. 2 13.2. The Trial Chamber erred in fact and law when concluding beyond reasonable doubt that there existed any agreement and shared intent between Franjo Tuđman and the leaders of the JCE to establish the HZHB state from inception as a permanent mini-state. 3 2 Judgement paragraph 24, Volume IV. 3 Judgement paragraph 15, Volume IV. Case No. IT-04-74-A 4

137 13.3. The Trial Chamber erred in fact and law when concluding beyond reasonable doubt that there existed any agreement and shared intent between Franjo Tuđman and the leaders of the JCE to establish a Croatian state in BiH that would either be attached to Croatia in the event of the dissolution of BiH or would exist as an independent state within BiH but with direct ties to Croatia. 4 13.4. The Trial Chamber erred in fact and law when concluding beyond reasonable doubt that this agreement took the form of a JCE commencing from January 1993 onwards. 5 JCE and Croatian Control of the HVO 14. The Trial Chamber has further erred in fact and law in determining beyond reasonable doubt that a JCE existed where Franjo Tuđman and other JCE members in the Republic of Croatia exercised overall control over the HVO and the HZ (R) HB Government or military apparatus. 6 15. The Trial Chamber erred in fact and law in determining beyond reasonable doubt that a JCE existed on the basis of evidence of logistical and humanitarian support provided by Croatia to the HVO, Croatia s recognition of the HVO HR HB administration, the support of the Croatian authorities in the RBiH s referendum and other evidence of a relationship between the Republic of Croatia and the HZ (R) HZ HB. 7 Characterisation of Conflict 16. The Trial Chamber erred in fact and law in characterising the conflict between the HVO and ABiH from January 1993 as the product of a series of unprovoked and unjustified attacks initiated by the HVO that gave rise to a JCE. Consequently, the Trial Chamber has erred in its interpretation of inter alia events that took place in Mostar 1993. 4 Judgement paragraph 24, Volume IV. 5 Judgement paragraph 44, Volume IV. 6 Judgement paragraph 526 to 528, Volume III. 7 Judgement paragraph 526, Volume III. Case No. IT-04-74-A 5

136 Expulsion of Muslims 17. The Trial Chamber erred in fact and law in determining beyond reasonable doubt that population movements out of HVO territory including the movement of Muslims out of Mostar were the product of a JCE which included as its objectives the forcible expulsion of Muslims from HVO held territory. Members of the JCE 18. The Trial Chamber erred in fact and law in determining beyond reasonable doubt that a JCE existed that included individual members that have not been named and cannot be identified. 8 The Trial Chamber has thus not correctly identified the participants in the JCE and could thus not conclude beyond reasonable doubt on the existence of a common objective between them and the Accused. 19. The Trial Chamber erred in fact and law in determining beyond reasonable doubt that a JCE existed where the alleged members fluctuated and varied over time. 9 Failure to Provide a Reasoned Opinion 20. The Trial Chamber erred in law when failing to provide a reasoned opinion on any of its findings pertaining to its conclusion that a JCE existed. IV THE TRIAL CHAMBER ERRED IN FACT AND LAW IN CONCLUDING THAT BERISLAV PUŠIĆ WAS A MEMBER OF THE JCE 21. The Trial Chamber erred in fact and law in deciding beyond reasonable doubt that Berislav Pušić was a member or leader of the JCE. 22. The Trial Chamber erred in fact and law in deciding that Berislav Pušić joined the JCE in April 1993 and left in April 1994. 10 8 Judgement paragraph 1231, Volume III. 9 Judgement paragraph 1230, Volume III. Case No. IT-04-74-A 6

135 23. The Trial Chamber erred in law when failing to provide a reasoned opinion on any of its findings pertaining to Berislav Pušić s membership of the JCE. V THE TRIAL CHAMBER ERRED IN FACT AND LAW IN CONCLUDING THAT BERISLAV PUŠIĆ HAD THE REQUISITE SHARED INTENT TO BE A MEMBER OF THE JCE 24. The Trial Chamber erred in fact and law in deciding beyond reasonable doubt that Berislav Pušić shared the intent to commit the criminal objectives of the JCE. 25. The Trial Chamber erred in fact and law in finding, in the absence of any supporting evidence, that Berislav Pušić had the intent to commit Counts 1 (persecution), Count 2 (murder), Count 3 (wilful killing), Count 19 (destruction of property), Count 20 (wanton destruction), Count 21 (wilful destruction of religious or educational institutions, Count 24 (unlawful attacks on civilians) and Count 25 (unlawful infliction of terror.) 26. The Trial Chamber s errors arise inter alia, from numerous erroneous findings considered either individually or collectively. 27. The Trial Chamber erred in law when failing to provide a reasoned opinion on any of its findings pertaining to Berislav Pušić shared intent as a member of the JCE. VI THE TRIAL CHAMBER ERRED IN FACT AND LAW IN CONCLUDING THAT BERISLAV PUŠIĆ PARTICIPATED IN THE JCE General 28. The Trial Chamber erred in fact and law when concluding that Berislav Pušić participated in the JCE. The result of the Trial Chamber's approach is that Berislav Pušić is held responsible for many of the crimes committed by the HVO side during the conflict, 10 Judgement paragraph 1229, Volume IV. Case No. IT-04-74-A 7

134 without the need to prove any demonstrable link between Berislav Pušić and any given perpetrator, and without any demonstration, much less proof beyond a reasonable doubt, that the crimes were committed in pursuance of the JCE. No Significant Contribution 29. The Trial Chamber erred in fact and law when concluding that the acts performed by Berislav Pušić constituted a significant enough contribution to the JCE to justify his liability for the JCE. The Chamber consequently made a series of erroneous findings: 29.1. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by virtue of any responsibility held by him to register and classify detainees. 11 29.2. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by establishing a database of detainees held by the HVO. 12 29.3. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by preventing or allowing members of the international community to visit and inspect HVO detention centres. 13 29.4. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by ordering the release of detainees held by the HVO. 14 29.5. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by participating and facilitating in the operation of HVO detention centres as part of a system created and designed to detain Muslim civilians. 15 11 Judgement paragraphs 1134 1136, 1045, Volume IV. 12 Judgement paragraph 1045, Volume IV. 13 Judgement paragraphs 1052, 1152 to 155 and 1203, Volume IV. 14 Judgement paragraph 1050, 1156 to 1166, Volume IV. 15 Judgement paragraphs 1054, 1173, 1181 and 1203 of Volume IV. Case No. IT-04-74-A 8

133 29.6. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by approving or authorising the use of detainees for forced labour assignments in HVO detention centres. 16 29.7. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by ordering or facilitating the transfer of detainees between different HVO detention centres. 17 29.8. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by organizing or facilitating the release of detainees from HVO detention centres on the basis they departed for a third country or to territory held by the ABiH. 18 29.9. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by influencing or dictating or controlling the conditions of detention for those held in HVO detention centres. 19 29.10. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by failing to speak out, denounce, or report the poor conditions of detention and ill-treatment of detainees (including forced labour practices) in HVO detention centres. 20 29.11. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by failing to speak out, denounce, or report crimes committed during the arrest of members of the Muslim population. 21 29.12. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by failing to take steps to improve conditions 16 Judgement paragraph 1054 and 1203, Volume IV. 17 Judgement paragraph 1056, Volume IV. 18 Judgement paragraphs 1056,1203, 1156 to 1166, 1183 to 1184, Volume IV. 19 Judgement paragraph 1056, Volume IV. 20 Judgement paragraphs 1137 1151, 1134 1145, 1167 1170, 1181 to 1182 and 1203, Volume IV. 21 Judgement paragraph 1207, Volume IV. Case No. IT-04-74-A 9

132 for detainees or stop their ill-treatment or abuse despite his knowledge of the same 22 by, inter alia, transferring detainees out of these facilities or alerting the authorities. 23 29.13. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by negotiating, organizing or facilitating as a major player 24 the exchange of prisoners between the HVO and other warring parties. 25 29.14. The Trial Chamber erred in fact and law when concluding that Berislav Pusić made a significant contribution to the JCE by negotiating, organizing, facilitating or hindering the exchange or departure of non-detainees and the passage of humanitarian convoys from and through HVO held territory. 26 29.15. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by organising or facilitating a system designed to achieve the expulsion of Muslims from the territory of the HZ (R) HB. 27 29.16. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by facilitating, organizing or playing a major role 28 in the execution of Mate Boban s order of 10 December 1993 to close all HVO detention centres. 29 29.17. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by reporting on the progress made towards executing Mate Boban s order of 10 December 1993 to close all HVO detention centres to other JCE leaders and members. 30 29.18. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by facilitating, organizing or playing a major 22 Judgement paragraphs 1182, 1176,, Volume IV. 23 Judgement paragraph 1203, 1187 Volume IV. 24 Judgement paragraph 1202, Volume IV. 25 Judgement paragraphs 1057 to 1063, 1071, Volume IV. 26 Judgement paragraphs 1064 to 1067, Volume IV. 27 Judgement paragraph 66, Volume IV. 28 Judgement paragraphs 1126 1132, 1184 and 1203, Volume IV. 29 Judgement paragraph 1056, Volume IV. 30 Judgement paragraph 1056, Volume IV. Case No. IT-04-74-A 10

131 role 31 in the departure of Muslim detainees from HZ (R) HB territory 32 as part of the execution of Mate Boban s order of 10 December 1993 to close all HVO detention centres. 33 29.19. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by participating in meetings, talks and negotiations between the HVO and representatives of the HVO between April 1993 to April 1994 concerning detainee and non-detainee releases, exchanges, transfers, the passage of humanitarian convoys, access to detention centres, checkpoints, ceasefires, evacuations, population movements and the treatment of detainees. 34 29.20. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE through his interactions 35 with other senior HVO leaders. 36 29.21. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by participating in the detention and then release of Muslim civilians during the 9 to 11 May 1993 in Mostar. 37 29.22. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by participating in the expulsion of Muslims from Mostar West to Mostar East from May 1993 onwards. 38 29.23. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by blocking or obstructing access for international organisations and humanitarian evacuations in Mostar during the siege of the city in May 1993 in Mostar. 39 31 Judgement paragraph 1203, Volume IV. 32 Judgement paragraphs 1178 to 1179, Volume IV. 33 Judgement paragraph 1056, 1183 to 1184, Volume IV. 34 Judgement paragraphs 1068-1081, Volume IV. 35 Judgement paragraph 1131, Volume IV. 36 Judgement paragraph 1082 to 1093, Volume IV. 37 Judgement paragraph 1206, Volume IV. 38 Judgement paragraph 1111 to 1116, Volume IV. 39 Judgement paragraph 1117-1122 and 1206, Volume IV. Case No. IT-04-74-A 11

130 29.24. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by blocking or obstructing humanitarian evacuations in Mostar during May 1993. 40 29.25. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by virtue of his knowledge of poor conditions of inmates in Dretelj and the fact he continued to play a role in the HVO and perform his duties at this time. 41 29.26. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by virtue of his knowledge that civilians were being detained in Gabela and the poor conditions of detention at that institution and the fact he continued to play a role in the HVO and perform his duties at this time. 42 29.27. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by giving and spreading false information about crimes committed by the HVO. 43 29.28. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to the JCE by trivialising the crimes committed by the HVO. 44 Crimes in Prozor 30. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to any crimes committed in Prozor pursuant to the JCE by obstructing a visit by international community representatives to the area in August 1993 45 and by continuing in his post in the HVO thereafter. 46 40 Judgement paragraph 1117-1122 and 1206, Volume IV. 41 Judgement paragraph 1167 to 1170, Volume IV. 42 Judgement paragraph 1167 to 1170, Volume IV. 43 Judgement paragraphs 1188 1201, Volume IV. 44 Judgement paragraph 1188 to 1201, Volume IV. 45 Judgement paragraph 1097, Volume IV. 46 Judgement paragraphs 605,635 and 773of Volume II and 1099 of Volume IV. Case No. IT-04-74-A 12

129 Crimes in Jablanica 31. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to any crimes committed in Jablanica pursuant to the JCE by visiting the area on the 4 May 1993 47 and by continuing in his post in the HVO thereafter. Crimes in Čapljina 32. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to any crimes committed in Čapljina pursuant to the JCE by visiting the area on the 19-20 July 1993 and taking part in a HVO delegation on those dates and by continuing in his post in the HVO thereafter. 48 Crimes in Mostar, Heliodrom, Dretelj, Gabela, Ljubuški and Vojno 33. The Trial Chamber erred in fact and law when concluding that Berislav Pušić made a significant contribution to any crimes committed in Mostar, Heliodrom, Dretelj, Gabela, Ljubuški and Vojno pursuant to the JCE. 49 Failure to Provide a Reasoned Opinion 34. The Trial Chamber erred in law when failing to provide a reasoned opinion on any of its findings pertaining to the significant contribution made by Berislav Pušić to the JCE. 47 Judgement paragraph 1100 1104, Volume IV. 48 Judgement paragraph 1123, Volume IV. 49 Judgement paragraphs 625, 656 to 665, 905, 906 of Volume 1, paragraphs 851 to 856, 873, 876, 1231, 1239, 1439, 1441, 1443,1445 to 1453, 1454 to 1456, 1472, 1492, 1496, 1512, 1519, 1541, 1579, 1589, 1601, 1637, 1645, 1646, 1350, 1653, 1686, 1737, 1762, 1811, 1814 and 1838 of Volume II, paragraphs 16, 35, 59, 144, 166, 183, 184, 191, 192,203, 211, 264, 265 and 273 of Volume III and paragraphs 905, 908 and 1023 1212 of Volume IV. Case No. IT-04-74-A 13

128 VII CRIMES AGAINST HUMANITY AND REQUIREMENT FOR AN INTERNATIONAL ARMED CONFLICT 35. The Trial Chamber erred in fact and law in deciding that Muslim men who are reservists or of an age that requires their mobilisation in the armed forces under national law do not fall within the definition of combatants in the armed forces within the meaning of international humanitarian law. 50 36. The Trial Chamber erred in fact and law in deciding that the armed conflict in the region was of an international nature based on: 36.1. the presence and intervention of the HV army. 51 36.2. an erroneous finding that the Croatian authorities jointly directed and exercised overall control of the HVO. 52 VIII SENTENCING 37. The Trial Chamber committed a discernible error when it imposed on Berislav Pušić a sentence of 10 years imprisonment. The sentence imposed is manifestly unreasonable in the circumstances of this case, particularly taking into account the form and degree of Berislav Pušić s alleged participation in the crimes committed. Having properly assessed the totality of the evidence, no reasonable Trial Chamber could have imposed such a harsh and patently excessive sentence. 37.1. The Trial Chamber committed discernible errors when it considered the following factors as relevant or aggravating circumstances in determining the sentence to be imposed on Berislav Pušić, namely that: 37.1.1. He made a significant contribution to the JCE. 53 50 Judgement paragraph 618 to 621, Volume III. 51 Judgement paragraph 526 to 568, Volume III 52 Judgement paragraph 526 to 568, Volume III Case No. IT-04-74-A 14

127 37.1.2. He had significant powers for the detention and release of prisoners and over their conditions of detention and release to third countries or to territory held by the ABiH. 54 37.1.3. He had a significant role as a representative of the HVO 55 He tolerated appalling conditions of detention and ill treatment and accepted the use of prisoners for forced labour. 56 37.1.4. Berislav Pušić played a major role in the commission of the crimes. 57 37.1.5. He abused his authority as Head of the Service for Exchange and 6 th August 1993 Commission. 58 37.1.6. The Trial Chamber s discernible errors had a significant effect on the determination of the sentence imposed on Berislav Pušić. 37.2. The Trial Chamber committed discernible errors when it considered the following factors were not mitigating circumstances in determining the sentence to be imposed: 37.2.1. Berislav Pušić s ill-health. 59 37.2.2. Berislav Pušić s good character and exemplary conduct subsequent to these allegations. 60 37.3. The Trial Chamber committed discernible errors when it failed to include the time spent by Berislav Pušić on provisional release receiving medical treatment from the time he must serve in custody as part of his sentence. 61 53 Judgement paragraph 1379, Volume IV. 54 Judgement paragraph 1379, Volume IV. 55 Judgement paragraph 1379, Volume IV. 56 Judgement paragraph 1379, Volume IV. 57 Judgement paragraph 1380, Volume IV. 58 Judgement paragraph 1380, Volume IV. 59 Judgement paragraph 1384, Volume IV. 60 Judgement paragraph 1384, Volume IV. Case No. IT-04-74-A 15

126 RELIEF SOUGHT 38. As a result of the Trial Chamber s error, Mr. Pušić respectfully requests the Appeals Chamber to quash the above findings and assess his individual responsibility de novo on the basis of the evidence adduced at trial. In the alternative, Mr. Pušić requests the Appeals Chamber to order a trial de novo. Word count: 4009 Respectfully submitted on Counsel for Berislav Pušić Mr Fahrudin Ibrišimović 61 Judgement paragraph 1385 to 1386, Volume IV. Case No. IT-04-74-A 16