488. In Counts 18 and 19, Delic was found guilty of torture for the rape of Grozdana Cecez (for the purposes of this section, “the victim”).744 It was found that the victim was taken to the Celebici camp on 27 May 1992 and on her arrival was brought to a room in which Delic was waiting. She was interrogated by Delic, during the course of which he slapped her. She was then taken to another room with three men including Delic. Delic subsequently raped her.745 It was found that these rapes constituted the offence of torture.746
489. Delic’s principal argument centres on the victim’s testimony, submitting that it was so weak and contradicted, that the Trial Chamber’s conclusions were clearly wrong.747 In particular, he refers to elements of her testimony which illustrate her unreliability because: (1) she failed to identify Delic properly;748 (2) her own evidence was weak and contradictory when given in relation to certain issues;749 (3) her evidence contradicted evidence given by other witnesses, in particular Milojka Antic;750 and (4) she was unable to recall certain events,751 illustrating what he describes as her “selective memory”.752
490. As to the reliability of the testimony presented in relation to these counts, the Trial Chamber in general found:
the testimony of Ms. Cecez, and the supporting testimony of Witness D and Dr. Grubac, credible and compelling, and thus concludes that Ms. Cecez was raped by Delic, and others, in the ^elebici prison-camp.753
491. The argument made under these grounds attacks the credibility and reliability of the main witness on whom the Trial Chamber relied to convict. The Appeals Chamber recalls that
744 Specifically, Delic was found guilty of torture as a Grave Breach of Geneva Convention IV (Article 2(b) of the
Statute) and as a Violation of the Laws or Customs of War (Article 3 of the Statute): Trial Judgement para 943.
745 Trial Judgement, para 937. 746 Trial Judgement, para 941.
747 Delic Brief, para 304; Appeal Transcript, p 499.
748 Delic submits that although she later identified him by name, she was unable to identify him in a photograph
array prepared by the Prosecution and she was not asked to identify him in court. Delic Brief, para 305.
749 Appeal Transcript, p 501. 750 Delic Brief, para 302. 751 Appeal Transcript, p 500.
752 Delic Brief, para 306.
the Trial Chamber was in the best position to hear, assess and weigh this testimony. It was accordingly for the Trial Chamber to consider whether the witness was reliable and her evidence credible. In such circumstances, the Appeals Chamber must always give a margin of deference to a Trial Chamber’s evaluation of the evidence and findings of fact.754 It is for Delic in these circumstances to demonstrate that this evidence could not reasonably have been accepted by any reasonable person, that the Trial Chamber’s evaluation was wholly erroneous and that therefore the Appeals Chamber should substitute its own finding for that of the Trial Chamber.755
492. Delic does not dispute the fact that the Rules do not require corroboration of a victim’s testimony.756 However, although the Trial Chamber also relied on additional testimony to support the principal account, the only direct evidence (and that disputed) in relation to the rapes carried out by Delic was that of the victim. Delic states that this testimony was not worthy of belief, due primarily to inconsistencies in the evidence which he claims illustrate its unreliability.
493. As to these alleged inconsistencies, Delic firstly alleges that the victim’s identification of him as the person who raped him was suspect, as she could not identify him in a photograph array and was not asked to identify him directly in court.757 The Trial Chamber found that: “Upon her arrival at the prison-camp she was taken […] to a room where a man with a crutch was waiting, whom she subsequently identified as Delic”.758 The Appeals Chamber notes that the victim, having identified Delic at the start of her testimony as “the man with a crutch”, confirmed this identification throughout her testimony,759 while also referring to him by name.760 The Appeals Chamber sees no reason to question the evaluation of this identification by the Trial Chamber.
754 Tadic Appeal Judgement, para 65; Aleksovski Appeal Judgement, para 63. 755 Aleksovski Appeal Judgement, para 63.
756 Rule 96(i) of the Rules provides that in cases of sexual assault, “no corroboration of the victim’s testimony shall
be required”.
757 Delic Brief, paras 297 and 305. 758 Trial Judgement, para 937.
759 In testimony, she stated: “When I entered that room, it was a very small room. I saw a man with a crutch. There
was a crutch next to him. His leg was bandaged”. Trial Transcript p 491. She continued to refer to him as the “the man with the crutch”, (e.g., Trial Transcript p 492, when asked who slapped her) and “[t]he one with the crutch” (e.g., Trial Transcript p 494, when asked who raped her). She then stated: “At that time I still did not know who he was but later I found out. Soon after that I found out who and what he was Hazim Delic” (Trial Transcript p 494).
760 In particular, when asked again to confirm the identification, Grozdana Cecez stated that although she did not
know who Delic was when he raped her, she “learned shortly [after]. [ ] The women from Bradina had come, and somebody from the entrance was looking for Hazim Delic and he appeared, so I realised that he was the man. He was carrying a crutch and he was limping, so I knew straight away who he was”. She further testified
494. Delic specifically points to the fact that the victim failed to identify Delic from a photograph array. The Appeals Chamber notes that when questioned as to her inability to identify Delic from the photographs, the victim replied: “I am not sure. All those pictures were of bald-ish men. So I didn’t dare say which one. Maybe the man has changed. After all, I haven’t seen him for five years. So I was not sure”.761
495. The Appeals Chamber determines that it has no reason to find that the Trial Chamber erred in its findings as to the victim’s identification of Delic. The Appeals Chamber notes that the victim identified Delic by name on several occasions throughout her testimony and continued to refer to him as such throughout.762 In addition, although not a necessary requirement, the Appeals Chamber notes that there were corroborating accounts before the Trial Chamber of the fact that Delic was identified as using a crutch.763 The simple fact that the victim failed to identify him in a photograph array (or rather, as it appears to the Appeals Chamber, was too cautious to try to identify him), several years after the incident took place, does not suffice to illustrate fault on behalf of the Trial Chamber’s overall appreciation of the evidence and treatment of identification.764
496. Delic also refers to certain inconsistencies in the victim’s testimony, which he states illustrate that it was unreliable.765 The Appeals Chamber notes that as an introduction to its consideration of the factual and legal findings, the Trial Chamber specifically discussed the
that she “saw him quite frequently”, that he was there all the time and that she heard his name frequently (Trial Transcript pp 513-514, 517).
761 Trial Transcript, p 516. 762 See Trial Transcript, p 510-511.
763 Corroboration is not required either in general (see for example: Aleksovski Appeal Judgement, para 62: “the
testimony of a single witness on a material fact does not require, as a matter of law, any corroboration”); Tadic, Appeal Judgement, para 65, or in particular, in relation to testimony by victims of sexual assault. In any event, the testimony of other witnesses, although not expressly referred to by the Trial Chamber, did refer to the identifying feature that Deli} used a crutch. For example, Dr Grubac (Trial Transcript pp 5998-5999), whose testimony was relied upon by the Trial Chamber to convict on these counts, finding it also to be credible and compelling (Trial Judgement, para 939). He testified that: “A day after my arrival to Celebici I met Hazim Delic.[…]. Knowing him I thought I could address him and I did, and I told him, ‘here I am’ […]. At that time he was carrying a crutch under his armpit. He said his leg had been injured; he was limping a little bit and using this crutch”. See also the testimony of Mirko Dordic (Trial Transcript p 4718) and Dr Jusufbegovic (Trial Transcript p 11963).
764 See Furundžija Appeal Judgement, paras 103-107, where the Appeals Chamber agreed with the Trial Chamber
finding that the identification of the accused by the victim in that case was satisfactory, because despite minor and reasonable inconsistencies in her identification, there was “in any event […] other evidence of the Appellant’s identity on the basis of which it would be reasonable for the Trial Chamber to be satisfied with the identification of the Appellant” (para 107).
765 In particular, he refers to: her failure to recollect when she made corrections to a statement made to investigating
magistrates in Yugoslavia; her failure to recall being interviewed on television; the fact that her testimony contradicted that of another witness, Milojka Antic, when she stated that she had given her contraceptive pills and that of her physician who stated that he did not recommend for her contraceptive pills.
nature of the evidence before it.766 It found that often the testimony of witnesses who appear before it, consists of a “recounting of horrific acts”767 and that often “recollection and articulation of such traumatic events is likely to invoke strong psychological and emotional reactions […]. This may impair the ability of such witnesses to express themselves clearly or present a full account of their experiences in a judicial context”.768 In addition, it recognised the time which had lapsed since the events in question took place and the “difficulties in recollecting precise details several years after the fact, and the near impossibility of being able to recount them in exactly the same detail and manner on every occasion […].”769 The Trial Chamber further noted that inconsistency is a relevant factor “in judging weight but need not be, of [itself], a basis to find the whole of a witness’ testimony unreliable”.770
497. Accordingly, it acknowledged, as it was entitled to do, that the fact that a witness may forget or mix up small details is often as a result of trauma suffered and does not necessarily impugn his or her evidence given in relation to the central facts relating to the crime. With regard to these counts, the Trial Chamber, after seeing the victim, hearing her testimony (and that of the other witnesses) and observing her under cross-examination chose to accept her testimony as reliable. Clearly it did so bearing in mind its overall evaluation of the nature of the testimony being heard. Although the Trial Chamber made no reference in its findings to the alleged inconsistencies in the victim’s testimony, which had been pointed out by Delic, it may nevertheless be assumed that it regarded them as immaterial to determining the primary question of Delic’s perpetration of the rapes.771 The Appeals Chamber can see no reason to find that in doing so it erred.
498. The Trial Chamber is not obliged in its Judgement to recount and justify its findings in relation to every submission made during trial. It was within its discretion to evaluate the inconsistencies highlighted and to consider whether the witness, when the testimony is taken as a whole, was reliable and whether the evidence was credible. Small inconsistencies cannot suffice to render the whole testimony unreliable. Delic has failed to show that the Trial Chamber erred in disregarding the alleged inconsistencies in its overall evaluation of the
766 Trial Judgement, paras 594-598. 767 Trial Judgement, para 595. 768 Trial Judgement, para 595. 769 Trial Judgement, para 596. 770 Trial Judgement, para 597.
evidence as being compelling and credible, and in accepting the totality of the evidence as being sufficient to enter a finding of guilt beyond a reasonable doubt on these grounds.772
499. Accordingly, these grounds of appeal must fail.