ANALYSIS: Ahmici 5 Verdict Overturned

In an unprecedented decision, the appeals chamber in The Hague has for the fist time overturned verdicts handed down by the tribunal.

The sharply worded ruling, ordering the immediate release of three Bosnian Croat defendants convicted for the attack on Ahmici, in central Bosnia, in 1993, dubbed their verdicts a "miscarriage of justice". Two other defendants had their sentences reduced.

Writing the unanimous decision for the five-member panel, Judge Patricia Wald criticised the trial chamber for failing to confirm that "incredible events [were] proved by credible evidence".

The decision is a blow to the prosecutor's office, whose case unravelled over witnesses who did not appear and circumstantial evidence that the appeal chamber concluded had not been adequately corroborated.

The first reversal of a verdict occurs in a case that was presided over by the former tribunal president Antonio Cessese. Judge Richard May, currently presiding in the case against former Yugoslav president Slobodan Milosevic, was also a judge on the case.

Yet this kind of set-back for two key pillars of the tribunal is actually perceived as a very positive breakthrough for the work of the court overall. Opponents of the court have widely questioned whether its procedures can guarantee a fair trial, especially the provision allowing judges to take turns hearing appeals in cases where they are not involved.

As very satisfied, Jadranka Slokovic Glumac, a lawyer representing one of the released defendants, Mirjan Kupreskic, said after the announcement of the ruling, "Finally, the court truly heard the arguments we have presented for the past four years". Another defence lawyer on the case said, "Now I can say I believe in this tribunal."

Putting on a brave face, even the prosecutor's office said it welcomed the judgment as a development that would increase public confidence in the tribunal, and its capacity to review its own judgements. "It shows that the tribunal is prepared to assess the evidence critically," said Graham Blewitt, deputy prosecutor.

The five defendants - brothers Zoran and Mirjan Kupreskic, their cousin Vlatko Kupreskic, Drago Josipovic and Vlado Santic - were sentenced in January 2000 for their role in the April 1993 massacre which the trial chamber said would go "down in history as one of the most vicious illustrations of man's inhumanity to man".

The court found that the killings were the work of the Croatian Defence Force, HVO, military police and concluded that the accused, as local HVO members, had all taken part. Zoran and Mirjan Kupreskic, received 10 and eight-year jail terms and their cousin was sentenced to six years. Josipovic was jailed for 15 years and Santic, as a commander of a special unit involved in the attack, for 25 years.

Four of the accused maintained that witnesses wrongly identified them as participants in the massacre. Santic admitted he took part in the assault but did not admit murder.

The appeals chamber overturned the verdicts of Kupreskic brothers because their convictions rested largely on the testimony of a single witness who identified them as attacking her house.

It suggested the two brothers may have been identified as perpetrators months after the attack as part of general speculation among the residents of Ahmici over which of their neighbours had been involved.

The appeals chamber found Vlatko Kupreskic's conviction even less convincing. His alleged role in aiding and abetting the attack was based on prosecution claims that he had been a police officer, and had been seen by one witness unloading weapons in front of his house.

The appellate judges found no convincing evidence to uphold these key aspects of the prosecution's case, and consequently reversed his conviction and ordered his release.

The indictment against Josipovic was equally deficient, it said, as the prosecution had not included any specific attacks in the indictment that were said to represent acts of persecution.

However, Josipovic's conviction was not overturned because other corroborative evidence led the chamber to uphold the credibility of the witness who identified him as present during the attack. This witness also identified Santic as present during the same attack. Santic's acknowledgement that he was there reinforced the credibility of the witness. But Josipovic was acquitted of separate minor charges, and his sentence was cut to 12 years.

Santic admitted he played a role in the HVO military police and, in closed door testimony at the trial last year of the regional Bosnian Croat leader Dario Kordic, confessed that he had participated in the Ahmici operation. Due to his expressions of remorse and his cooperation with the prosecution, Santic's sentence was reduced to 18 years.

The tribunal chamber recognised weaknesses in the case at the time. The trial judges rejected the testimony of one key prosecution witness, who told the court about the killing of his entire family, including his son, daughter-in-law, and two grandchildren.

Had his testimony against the Kupreskics been accepted, the brothers could have faced a life sentence. But due to the obvious emotional stress of this witness, and inconsistent statements about the identity of the killers, his testimony was dismissed.

The judges did, however, accept the testimony of another witness, although she was only 13-years-old at the time the crimes were committed, and rejected the defence's request to hear additional testimony by another Bosniak witness which would have challenged some of the first witness' claims.

For their part, the prosecution claims that the case was strong when they initiated it, but that witnesses who could corroborate the charges ruined it because they failed to show up in court. Even the deputy prosecutor, Graham Blewitt, noted that the prosecution case against the men would have been stronger had all the witnesses who had testified during the investigation been willing to take the stand. It is unclear as to why the witnesses did not appear.

With the overturning of three of the verdicts, the prosecution faces the question of why, as one legal observer noted, it had not "had the guts to dismiss the case" before trial, as the weakness of the evidence against the accused was obvious. Two of the accused were not charged with murder at all. A number of indictments, including some for crimes in Lasva valley, had been dismissed by the prosecutor's office in 1998 due to insufficient evidence. In this case, the prosecutors apparently believed they had sufficient evidence to secure convictions.

As various Lasva valley trials were being conducted before the tribunal around the same time, including the case of Tihomir Blaskic, it would have been obvious to the prosecutors and the judges that the principal perpetrators of the killing and burning in Ahmici were members of the HVO military police. Indeed, in a summary of the judgement, Judge Cassese concluded that, "with the possible exception of one of the accused [Santic], this trial chamber has not tried the major culprits".

While evidence points to the participation of some 70 military police in the attack on Ahmici, the question remains why the only charges brought by the prosecutor against a military police commander were those against Santic. This gap has been only recently corrected with the recent publication of the formerly sealed indictment for similar crimes against military police commander Pasko Ljubicic.

Yet despite the set back, the appeals court has powerfully demonstrated the capacity of the tribunal to correct its own errors, and to give further confidence to defendants - as well as to victims - that a measure of justice may be found in The Hague.

Vjera Bogati is an IWPR special correspondent at The Hague and a journalist with SENSE News Agency.