|(Exclusively for the use of the media. Not an official document)||
The Hague, 4 February 2005
Appeals Chamber Judgement in the Case the Prosecutor v. Dragan Nikolic
Dragan Nikolic: new sentence of 20 years’ of imprisonment is imposed
Please find below the summary of the Judgement delivered by the Appeals Chamber, composed of Judges Meron (Presiding), Judge Pocar, Judge Shahabuddeen, Judge Güney and Judge Weinberg de Roca, as read out by the Presiding Judge.
What follows is a summary of the written Judgement and forms no part of it.
As the Registrar announced, the case on our agenda is Prosecutor versus Dragan Nikolic. As was stated in the Scheduling Order of 1 February 2005, today’s hearing for the delivery of the Judgement is taking place, pursuant to Rule 15bis(A) of the Rules of Procedure and Evidence, in the absence of one of the Judges of the Chamber, Judge Fausto Pocar, who is unavailable due to authorised Tribunal business.
At a plea hearing held on 4 September 2003, Mr. Nikolic pleaded guilty to counts arising out of events that took place at the Sušica Camp near Vlasenica in eastern Bosnia and Herzegovina. Based on a Confidential Joint Plea Agreement Submission filed by the parties, the Trial Chamber entered a single conviction against Mr. Nikolic for Count 1 of the Indictment, persecutions as a crime against humanity. That conviction incorporated Count 2, murder as a crime against humanity; Count 3, rape as a crime against humanity; and Count 4, torture as a crime against humanity. The plea agreement reached by the parties recommended a sentence of 15 years imprisonment; the Chamber sentenced Mr. Nikolic to 23 years imprisonment. Mr. Nikolic appealed, and this Appeals Chamber held a hearing on Mr. Nikolic’s appeal on 29 November 2004.
Following the practice of the Tribunal, I will not read out the text of the Judgement except for the disposition. Instead, I will summarise the issues on this appeal and the reasoning and rulings of the Appeals Chamber. I emphasise that this is only a summary, and that it forms no part of the Judgement. The only authoritative account of the Appeals Chamber rulings and of its reasons is the written Judgement, copies of which will be made available to the parties and to the public at the conclusion of this hearing.
The relevant provisions on sentencing are Articles 23 and 24 of the Statute and Rules 100 to 106 of the Rules of Procedure and Evidence. Both Article 24 of the Statute and Rule 101 of the Rules contain general guidelines for a Trial Chamber to take into account in sentencing. Those general guidelines amount to an obligation on the Trial Chambers to take into account the following factors in sentencing: the gravity of the offence and the individual circumstances of the convicted person, the general practice regarding prison sentences in the courts of the former Yugoslavia, and aggravating and mitigating circumstances. Sentencing appeals, as with all appeals to the Appeals Chamber from a Judgement of a Trial Chamber, are not trials de novo. The role of the Appeals Chamber is limited to correcting errors of law invalidating a decision and errors of fact which have occasioned a miscarriage of justice.
Trial Chambers are vested with broad discretion in determining an appropriate sentence, due to their obligation to tailor the penalties to fit the individual circumstances of the accused and the gravity of the crime. As a general rule, the Appeals Chamber will not revise a sentence unless the Trial Chamber has committed a "discernible error" in exercising its discretion.
The Appellant raises in the present case seven grounds of appeal, which the Appeals Chamber will now briefly address in turn.
Under his first ground of appeal, the Appellant principally argues that the sentence rendered by the Trial Chamber is excessive in comparison with other sentences rendered by the International Tribunal for the former Yugoslavia and the International Tribunal for Rwanda. It is clear from the Tribunal’s case law that while guidance may be provided by previous sentences rendered before the two International Tribunals, when differences are more significant than similarities, or when mitigating and aggravating factors differ, different sentencing might be justified. Additionally, even in cases where the offences are the same and were committed in substantially similar circumstances, Trial Chambers have an overriding obligation to tailor a penalty to fit the individual circumstances of the accused. As a result a comparison is therefore not only limited but also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose sentence.
In the present case, the Appellant merely submits that his sentence falls outside a clear and unambiguous pattern of sentencing; he does not successfully compare his case with one or more cases comprising the same offence and substantially similar circumstances. In any event, the Appeals Chamber finds that the Trial Chamber did consider previous sentencing practices and finds that the Appellant’s arguments do not show that the Trial Chamber committed a discernable error in the exercise of its sentencing discretion by wrongly assessing the particular circumstances of his case.
Under his second ground of appeal, the Appellant submits that the Trial Chamber erred in its assessment of the aggravating factors. He raises three arguments related to the Trial Chamber’s findings.
First, with regard to the enjoyment the Appellant derived from his criminal acts, the Appeals Chamber finds that, contrary to the Appellant’s submission, there was clear evidence before the Trial Chamber that he did enjoy exercising his power over detainees through depraved acts. The testimony of Witness SU-032 that he "enjoyed himself while he was beating people" is a sufficient basis to characterise the Appellant’s conduct as especially aggravating. The Appeals Chamber finds that the Trial Chamber did not commit any discernable error in concluding that he "apparently enjoyed his criminal acts".
Second, with regard to the finding of the Trial Chamber that, due to their seriousness and particular viciousness, the beatings charged under the crime of torture amounted to "the highest level of torture, which has all of the making of de facto attempted murder", the Appeals Chamber finds that the Appellant has not shown that the Trial Chamber equated the offence of torture with the offence of attempted murder. The Trial Chamber accordingly did not commit any error of law, and only intended to reflect the gravity of the beatings.
I turn now to the alleged error of fact raised by the Appellant, that the Trial Chamber’s above finding was not supported by any evidence. The Appeals Chamber considers that, while the Trial Chamber erroneously qualified the beatings underlying the crime of torture as having "all of the making of de facto attempted murder", it was reasonable to conclude, on the basis of the evidence before it, that due to their seriousness and particular viciousness, the beatings underlying the crime of torture amounted to the "highest level of torture" as an aggravating factor. Having determined that the Trial Chamber correctly concluded that the gravity of the beatings was to be taken into account as an aggravating factor in assessing the Appellant’s criminality for acts of torture, the Appeals Chamber does not consider that the excision of the Trial Chamber’s erroneous characterisation of the beatings as having all of the making of "de facto attempted murder" moderates the nature as a whole of the aggravating factors.
Third, with regard to the Appellant’s argument that the Trial Chamber’s reference to "all the accepted aggravating circumstances" implies that it considered that all parties agreed as to what was to be considered as aggravating factors capable of enhancing the seriousness of the offences, the Appeals Chamber finds that the aggravating factors retained by the Trial Chamber were those it itself accepted after its evaluation of the circumstances of the case. Accordingly, the Appellant’s second ground of appeal is dismissed.
Under his third ground of appeal, the Appellant asserts that the Trial Chamber erred when it held that individual deterrence had no relevance in his case and also erred by giving insufficient weight to his guilty plea and his remorse as mitigating factors.
The Appeals Chamber notes that the Trial Chamber did consider individual deterrence as a fundamental principle to take into consideration when imposing sentence. With regard to his guilty plea, the Appellant argues that the Trial Chamber did not consider that his guilty plea avoided a lengthy trial, spared the witnesses the ordeal to give evidence, and also encouraged others to come forth.
In the present case, the Trial Chamber did give due consideration to this factor. The Appeals Chamber emphasises that it considers that the avoidance of a lengthy trial, while an element to take into account in sentencing, should not be given undue weight.
With regard to the Appellant’s argument that the Trial Chamber failed to consider that his guilty plea also spared many witnesses the ordeal to give evidence, the Appeals Chamber finds that the Appellant has overlooked the finding of the Trial Chamber that by pleading guilty before the commencement of the trial, he has "relieved the victims of the need to open old wounds." Therefore, this argument is unfounded.
I turn next to the Appellant’s argument that the Trial Chamber erred in acknowledging that he "expressed the hope that all three parties to the conflict would be encouraged to assume their part of the responsibility for the terrible crimes". The Appeals Chamber finds in this respect that the Trial Chamber was under no obligation to expand further on these incentives for guilty pleas and did not err in its discretion to impose sentence.
I turn now to the Appellant’s argument that the Trial Chamber erred because, while acknowledging the particular importance of remorse as a mitigating factor, it considered this factor "at best perfunctorily". The Appeals Chamber notes that the Trial Chamber, on the contrary, treated this factor as "specifically important", and in fact clearly considered the Appellant’s remorse as one of the mitigating circumstances entailing a substantial reduction of sentence. The Appellant’s argument in that respect is therefore unfounded.
The Appellant argues next that the Trial Chamber should have requested additional assistance from the parties with regard to the extent of his cooperation, instead of relying on the Prosecution’s assessment in that respect. The Appeals Chamber does not see how the Trial Chamber failed to fulfil its obligation pursuant to Rule 101(B)(ii) of the Rules to consider his cooperation with the Prosecution as a mitigating factor. With respect to the Appellant’s further argument that the Trial Chamber failed to ascribe sufficient weight to his cooperation, the Appeals Chamber did not find any error in the Trial Chamber’s assessment of the weight to attach to this mitigating factor. The Appellant’s third ground of appeal is dismissed.
Under his fourth ground of appeal, the Appellant alleges that the Trial Chamber committed two errors. He argues that the Trial Chamber gave no or insufficient weight to the sentencing practices in the former Yugoslavia and also that the Trial Chamber rather had recourse to the sentencing practices of countries other than the former Yugoslavia.
With regard to the first alleged error, the Appeals Chamber reiterates that although Trial Chambers shall have recourse, pursuant to Article 24(1) of the Statute, to the general practice regarding prison sentences in the courts of the former Yugoslavia, they are not bound to conform to such practice. The issue before the Appeals Chamber is whether the Trial Chamber, while considering the practice of the courts in the former Yugoslavia in relation to the sentencing aspect of the case, ventured outside its discretion by ignoring the sentencing limits set in that practice, without providing reasons for its departure. In the present case, the Appeals Chamber finds that the Trial Chamber fulfilled its obligation to take into account the sentencing practices in the former Yugoslavia with regard to the particular circumstances of the case. Further, the Appeals Chamber finds that there is no need to determine whether the Trial Chamber ventured outside its sentencing discretion, as the sentence of 23 years’ imprisonment it imposed is clearly within the sentencing range in the former Yugoslavia at the time of the commission of the offences by the Appellant.
With regard to the second alleged error, the Appeals Chamber notes that the Trial Chamber had recourse to the sentencing practices in countries other than in the former Yugoslavia in order to "seek guidance based on comparative research in this terrain". As it is clear from the Sentencing Judgement, the Trial Chamber reviewed those practices in addition to the sentencing practices in the former Yugoslavia. The Trial Chamber was aware that it was not bound to apply any maximum term of imprisonment in a national system and did not err in exercising its discretion to impose a sentence here.
Under his fifth ground of appeal, the Appellant argues that the Trial Chamber erred in finding that the principle of lex mitior applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction, and that the principle does not apply to the International Tribunal because it exercises a different jurisdiction from that in which the crime was committed. The principle of lex mitior is understood to mean that, if the law relevant to the offence of the accused has been amended, the less severe law should be applied. Accused persons can only benefit from the more lenient sentence if the law is binding, since they only have a protected legal interest when the sentencing range must be applied to them. The principle of lex mitior is thus only applicable if the law that binds the International Tribunal is subsequently changed to a more favourable law by which the International Tribunal is also obliged to abide. In sum, properly understood, the principle of lex mitior applies to the Statute of the International Tribunal. Accordingly, if ever the sentencing powers conferred by the Statute were to be amended, the International Tribunal would have to apply the less severe penalty. The Appeals Chamber notes, however, that there has not been a change in the laws of the International Tribunal regarding sentencing ranges. So far as concerns the requirement of Article 24(1) that "the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia", these words have to be construed in accordance with the principles of interpretation applicable to the Statute of which they form part. So construed, they refer to any pertinent laws of the former Yugoslavia which were in force at the time of commission of the crime in question; subsequent changes in those laws are not imported. This ground of appeal is dismissed.
Under his sixth ground of appeal, the Appellant argues that the Trial Chamber failed to pay sufficient regard to the recommendation of the parties as to a sentence of 15 years. He alleges two errors: (1) that the Trial Chamber failed adequately to explain why the sentence recommended by the parties was not appropriate, and (2) that it erroneously took into account the time he would actually serve in prison.
As to whether the Trial Chamber erred in failing to explain why the sentence recommended by the parties was not appropriate, the Appeals Chamber recalls that, in exercising their discretion to impose a sentence, Trial Chambers must take into account the following factors: the gravity of the offence and the individual circumstances of the convicted person, the general practice regarding prison sentences in the courts of the former Yugoslavia, and aggravating and mitigating circumstances. The Appeals Chamber finds that, in the special context of a plea agreement, an additional factor must be taken into account. A plea agreement is a matter of considerable importance as it involves an admission by the accused of his guilt. Furthermore, recommendation of a range of sentences or, as in the present case, a specific sentence, reflects an agreement between the parties as to what, in their view, would constitute a fair sentence. The Appeals Chamber notes that Rule 62ter(B) of the Rules unambiguously states that Trial Chambers shall not be bound by any agreement between the parties. Nevertheless, in the specific context of a sentencing Judgement following a plea agreement, the Appeals Chamber emphasises that Trial Chambers shall give due consideration to the recommendation of the parties and, should the sentence diverge substantially from that recommendation, give reasons for the departure. In the present case, the Appeals Chamber finds that the Trial Chamber gave sufficient reasons at paragraph 281 of the Sentencing Judgement and did not abuse its discretion in departing from the parties’ recommendation. This part of the Appellant’s ground of appeal is therefore dismissed.
With regard to whether the Trial Chamber unduly took into account the time the Appellant will serve in detention, the Appeals Chamber notes that while a Trial Chamber may determine what it considers to be a minimum term of imprisonment an accused should serve and may also consider the possibility that an accused be granted early release when determining what constitutes an appropriate sentence, a Trial Chamber must nevertheless always consider that early release is only a possibility offered to a convicted person. The question before the Appeals Chamber under this ground of appeal is whether the Trial Chamber erred in attaching too much weight to the possibility of an early release. The Appeals Chamber notes that the Trial Chamber, by imposing a sentence of 23 years, clearly – although not expressly – entered into a calculation to reflect the practice of the International Tribunal of granting early release after the convicted person has served two-thirds of his sentence: the term of 15 years, referred to by the Trial Chamber as the term the Appellant has to serve before release, clearly amounts to two-thirds of the sentence it effectively rendered. The Appeals Chamber considers that the Trial Chamber mechanically – not to say mathematically – gave effect to the possibility of an early release. By doing so, it attached too much weight to such possibility. As a consequence, the Appeals Chamber finds, Judge Shahabuddeen dissenting, that a reduction of sentence shall be granted.
Under his seventh ground of appeal, the Appellant alleges that the Trial Chamber erred by wrongly taking into account facts that fall outside the scope of the Indictment or of the agreed facts. The Appeals Chamber finds that the Appellant was aware that at the close of the Sentencing Hearing he could object to the Trial Chamber’s considering evidence that in his view went beyond the scope of the Indictment. Counsel for the Appellant made no such objections in his closing arguments and by that failure waived his right to do so on appeal. Accordingly, this ground of appeal is dismissed.
I shall now read the operative paragraph of the Appeals Chamber Judgement. Mr. Nikolic, please, would you stand.
For the foregoing reasons, the Appeals Chamber, pursuant to Article 25 of the Statute and Rules 117 and 118 of the Rules of Procedure and Evidence; noting the respective written submissions of the parties and the arguments they presented at the hearing of 29 November 2004; sitting in open session;
ALLOWS, Judge Shahabuddeen dissenting, the Appellant’s ground of appeal that the Trial Chamber erred in taking into account the time he would actually serve in detention;
DISMISSES the Appellant’s ground of appeal in all other respects and, Judge Shahabuddeen dissenting, IMPOSES a new sentence;
SENTENCES, Judge Shahabuddeen dissenting, the Appellant to 20 imprisonment to run as of this day, subject to credit being given under Rule 101(C) of the Rules for the period the Appellant has already spent in detention, that is, from 20 April 2000 to the present day;
ORDERS, in accordance with Rule 103(C) and Rule 107 of the Rules, that the Appellant is to remain in the custody of the International Tribunal pending the finalisation of arrangements for his transfer to the State where his sentence will be served.
Madam/Mister Registrar, would you please deliver copies of the Judgement to the parties.
Mr. Nikolic, you may be seated. The Appeals Chamber stands adjourned.
International Criminal Tribunal for the former Yugoslavia
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