Table of contents:
P.32. Evidence inferred from an utterance, a document or a deed.
P.32.1. Evidence of being summoned, arrested, otherwise taken into custody by the perpetrator.
P.32.2. Evidence of being interrogated, assaulted, or humiliated etc by the perpetrator.
Element:
P.32. Evidence inferred from an utterance, a document or a deed.
P.32.1. Evidence of being summoned, arrested, otherwise taken into custody by the perpetrator.
P.32.2. Evidence of being interrogated, assaulted, or humiliated etc by the perpetrator.
A. Legal source/authority and evidence:
Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 121, 266, 267 and 268:
"121. On or about 16 May 1993, Witness D was arrested and taken to the Bungalow by the accused and Accused B. He was interrogated and assaulted by both of them. Accused B in particular, beat him with his fists and on the feet and toes with a baton, in the presence of Witness E, and most of the time in the presence of the accused who was coming and going."
266. The Trial Chamber has found that the accused was also present in the pantry where the second phase of the interrogation of Witness A occurred. Witness D was taken there for a confrontation with Witness A to make her confess as 'promised' by the accused in the large room. Both Witness A and Witness D were interrogated by the accused and hit on the feet with a baton by Accused B in the course of this questioning. Accused B again assaulted Witness A who was still naked, before an audience of soldiers. He raped her by the mouth, vagina and anus and forced her to lick his penis clean. The accused continued to interrogate Witness A in the same manner as he had done earlier in the large room. As the interrogation intensified, so did the sexual assaults and the rape.
267. The intention of the accused, as detailed above, was to obtain information from Witness A by causing her severe physical and mental suffering. In relation to Witness D, the accused intended to extract information about his alleged betrayal of the HVO to the ABiH and his assistance to Witness A and her children.
(i) The Trial Chamber finds that in relation to Witness A, the elements of torture have been met. Within the provisions of Article 7(1) and the findings of the Trial Chamber on liability for torture, the accused is a co- perpetrator by virtue of his interrogation of her as an integral part of the torture. The Trial Chamber finds that the accused tortured Witness A."
(ii) In relation to Witness D, paragraph 26 of the Amended Indictment alleges that having been badly beaten in the Bungalow, he was then taken with Witness A to another room. While the accused continued to interrogate Witness A and Witness D, Accused B beat them both on the feet with a baton. Witness D was then forced to watch Accused B's sexual attacks on Witness A, which have already been described. The physical attacks upon Witness D, as well as the fact that he was forced to watch sexual attacks on a woman, in particular, a woman whom he knew as a friend, caused him severe physical and mental suffering.
268. On the evidence on record, the Trial Chamber finds that the elements of torture have been met. Within the provisions of Article 7(1) and the findings of the Trial Chamber on liability for torture, the accused is a co- perpetrator of torture, he is individually responsible for torture. The Trial Chamber is satisfied that the Prosecution has proved the case against the accused beyond reasonable doubt."
[B. Evidentiary comment:]
P.33. Evidence inferred from a circumstance.
P.33.1. Evidence of the duration for which the victim was in the custody or under the control of the perpetrator.
A. Legal source/authority and evidence:
Prosecutor v. Milan Simić, Case No. IT-95-9/2-T, Judgement (TC), 17 October 2002, paras. 68, 70:
"68. […] the fact that the victims had been in detention for two months […]"
"70. The Trial Chamber finds that there can be no doubt that Milan Simic’s victims were in a position of inferiority and of acute vulnerability, being in the custody and control of the Bosanski Samac authorities:96 they all had been in detention for several months,97 during which they had already suffered extensive and brutal beatings at the hands of others;98 they were defenceless and had no possibility to protect themselves."
"96. Kunarac Appeal Judgement, para. 352. The Appeals Chamber held in the context of rape that vulnerability could be considered both as an element of the crime and as evidence of its gravity, and as such could be taken into account in the course of sentencing.
97. Plea Agreement, para. 9(a).
98. Evidence has been led that, due to the effect of previous beatings, he had to be carried out of the primary school gymnasium to the hallway when called out by Milan Simic. T. 6130-31."
[B. Evidentiary comment:]
P.33.2. Evidence of the presence of the perpetrator for the duration of the custody or being under the control of the perpetrator.
A. Legal source/authority and evidence:
Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 121, 266, 267 and 268:
"121. On or about 16 May 1993, Witness D was arrested and taken to the Bungalow by the accused and Accused B. He was interrogated and assaulted by both of them. Accused B in particular, beat him with his fists and on the feet and toes with a baton, in the presence of Witness E, and most of the time in the presence of the accused who was coming and going."
266. The Trial Chamber has found that the accused was also present in the pantry where the second phase of the interrogation of Witness A occurred. Witness D was taken there for a confrontation with Witness A to make her confess as 'promised' by the accused in the large room. Both Witness A and Witness D were interrogated by the accused and hit on the feet with a baton by Accused B in the course of this questioning. Accused B again assaulted Witness A who was still naked, before an audience of soldiers. He raped her by the mouth, vagina and anus and forced her to lick his penis clean. The accused continued to interrogate Witness A in the same manner as he had done earlier in the large room. As the interrogation intensified, so did the sexual assaults and the rape.
267. The intention of the accused, as detailed above, was to obtain information from Witness A by causing her severe physical and mental suffering. In relation to Witness D, the accused intended to extract information about his alleged betrayal of the HVO to the ABiH and his assistance to Witness A and her children.
(i) The Trial Chamber finds that in relation to Witness A, the elements of torture have been met. Within the provisions of Article 7(1) and the findings of the Trial Chamber on liability for torture, the accused is a co- perpetrator by virtue of his interrogation of her as an integral part of the torture. The Trial Chamber finds that the accused tortured Witness A."
(ii) In relation to Witness D, paragraph 26 of the Amended Indictment alleges that having been badly beaten in the Bungalow, he was then taken with Witness A to another room. While the accused continued to interrogate Witness A and Witness D, Accused B beat them both on the feet with a baton. Witness D was then forced to watch Accused B's sexual attacks on Witness A, which have already been described. The physical attacks upon Witness D, as well as the fact that he was forced to watch sexual attacks on a woman, in particular, a woman whom he knew as a friend, caused him severe physical and mental suffering.
268. On the evidence on record, the Trial Chamber finds that the elements of torture have been met. Within the provisions of Article 7(1) and the findings of the Trial Chamber on liability for torture, the accused is a co- perpetrator of torture, he is individually responsible for torture. The Trial Chamber is satisfied that the Prosecution has proved the case against the accused beyond reasonable doubt."
[B. Evidentiary comment:]
