Third Ground of Appeal by the Defence:

A. Submissions of the Parties 1. The Defence

57. The Trial Chamber made the factual finding that the Appellant was guilty of the murder of two Muslim policemen, Edin Besi} and a man identified at trial by the name of Osman, based on the testimony of only one witness, Nihad Seferovi}. The Defence contends that the Trial Chamber erred in deciding that it was satisfied beyond reasonable doubt that he was guilty of the two murders because the Chamber relied on the uncorroborated evidence of Mr. Seferovi}. The Defence maintains that Mr. Seferovi} is an unreliable witness because he was introduced to the Prosecution by the government of Bosnia and Herzegovina, a source which the Defence alleges the Trial Chamber found to be tainted for having planted another Prosecution witness, Dragan Opaci}. The latter was found to be untruthful at trial and, consequently, withdrawn by the Prosecution.

58. The Defence argues that the Trial Chamber erred in relying on the evidence of Mr. Seferovi} because it is implausible. Mr. Seferovi}, a Muslim who lived in an area under bombardment by Serbian paramilitary forces, fled to the mountains for safety. He testified at trial that he was so concerned about the welfare of his pet pigeons that he returned to town to feed them while the Serbian paramilitaries were still there. On his return to town, he saw Mr. Tadi} kill two policemen. Defence counsel contended at trial that the witness was never in town at the time of the killings.

59. The Defence maintains that the Appeals Chamber, in reviewing the factual finding of the Trial Chamber, is entitled to consider all relevant evidence and can reverse the Chamber’s finding if it is satisfied that no reasonable person could conclude that the evidence of Mr. Seferovi} proved that the Appellant was responsible for the killings.

60. The Defence asks the Appeals Chamber to reverse the Trial Chamber’s finding that the Appellant is guilty of the murders of Edic Besi} and the man identified by the name of Osman.⁹⁴

2. The Prosecution

61. The Prosecution argues that the Appeals Chamber, being an appellate body, cannot reverse the Trial Chamber’s findings of fact unless it were to conclude that the Defence has proved that no reasonable person could have come to the conclusion reached by the Trial Chamber based on the evidence cited by it.⁹⁵

62. The Prosecution claims that the Defence misrepresented the Trial Chamber’s findings with respect to Dragan Opaci} in order to taint Mr. Seferovi} by association as an unreliable witness. Having lied about his family situation, Mr. Opaci} had clearly aroused the Prosecution’s fears about his credibility. Consequently, he was withdrawn as a witness as a precautionary measure. The Trial Chamber asked the Prosecution to investigate this matter and, having examined the situation, the Prosecution found that the investigation did not support the Defence allegation that Mr. Opaci} was planted by the Bosnian government.

63. The Prosecution submits that the attempt to taint Mr. Seferovi} ’s credibility by assimilating his position to that of Mr. Opaci} fails because the Trial Chamber concluded that the circumstances surrounding the testimony of the latter were unique to him. The situation of Mr. Seferovi} was not similar to that of Mr. Opaci}. There was no need to require corroboration of his testimony because the Trial Chamber concluded that he was a reliable witness.

B. Discussion

64. The two parties agree that the standard to be used when determining whether the Trial Chamber’s factual finding should stand is that of unreasonableness, that is, a

94 In its submissions, the Defence refers to the victim identified by the Trial Chamber only as one “Osman”, by the name “Osman Didovic”. The Appeals Chamber is not here called upon to determine whether the name thus given by the Defence is accurate.

conclusion which no reasonable person could have reached. The task of hearing, assessing and weighing the evidence presented at trial is left to the Judges sitting in a Trial Chamber.

Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber. It is only where the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber. It is important to note that two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence.

65. The Appeals Chamber notes that it has been the practice of this Tribunal and of the International Criminal Tribunal for Rwanda (“ICTR”)⁹⁶ to accept as evidence the testimony of a single witness on a material fact without need for corroboration. The Defence does not dispute that corroboration is not required by law. As noted above, it submitted that, as a matter of fact, the evidence of Mr. Seferovi} cannot be relied on in the absence of corroboration because he was introduced to the Prosecution by the same source, the government of Bosnia and Herzegovina, which introduced another witness, Mr. Opaci}, who was subsequently withdrawn as a witness by the Prosecution for being untruthful. The Appeals Chamber finds that Mr. Seferovi} ’s association with the Bosnian government does not taint him. The circumstances of Mr. Seferovi} and Mr. Opaci } are different.

Mr. Opaci} was made known to the Prosecution while he was still in the custody of the Bosnian authorities, whereas Mr. Seferovi} ’s introduction was made through the Bosnian embassy in Brussels. Mr. Seferovi} was subjected to strenuous cross-examination by Defence counsel at trial. Defence counsel at trial did not recall him after learning of the withdrawal of Mr. Opaci} as a witness. Furthermore, Defence counsel at trial never asked that Mr. Seferovi} ’s testimony be disregarded on the ground that he, like Mr. Opaci}, was also a tainted witness. Therefore, the Appeals Chamber finds that the Trial Chamber did not err in relying on the uncorroborated testimony of Mr. Seferovi}.

66. The Defence alleges that the Trial Chamber erred in relying on the evidence of Mr. Seferovi } because it was implausible. Here, it is claimed that the Trial Chamber did not

95 Prosecution’s Response to Appellant’s Brief on Judgement, para. 2.14.

96 More fully, the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious V iolations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994.

act reasonably in concluding from the evidence of Mr. Seferovi} that the Appellant was responsible for the killing of the two policemen. The Appeals Chamber does not accept as inherently implausible the witness’ claim that the reason why he returned to the town where the Serbian paramilitary forces had been attacking, and from which he had escaped, was to feed his pet pigeons. It is conceivable that a person may do such a thing, even though one might think such action to be an irrational risk. The Trial Chamber, after seeing the witness, hearing his testimony, and observing him under cross-examination, chose to accept his testimony as reliable evidence. There is no basis for the Appeals Chamber to consider that the Trial Chamber acted unreasonably in relying on that evidence for its finding that the Appellant killed the two men.

C. Conclusion

67. The Appellant has failed to show that Nihad Seferovi} ’s reliability as a witness is suspect, or that his testimony was inherently implausible. Since the Appellant did not establish that the Trial Chamber erred in relying on the evidence of Mr. Seferovi} for its factual finding that the Appellant killed the two men, the Appeals Chamber sees no reason to overturn the finding.