1 Thursday, 5 July 2001
2 [Appeal Proceedings Judgement]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 10.06 a.m.
6 JUDGE SHAHABUDDEEN: Madam Registrar, will you please call the
8 THE REGISTRAR: Good morning, Your Honour. Case number
9 IT-95-10-A, the Prosecutor versus Goran Jelisic.
10 JUDGE SHAHABUDDEEN: Let me find -- Mr. Jelisic, can you hear me?
11 There is a problem. I don't know if it is from my side. Yes. I think
12 the problem may well have been from my side.
13 Mr. Jelisic, I turn to you again and ask whether you can hear me.
14 THE APPELLANT: [Interpretation] Yes, I can hear you.
15 JUDGE SHAHABUDDEEN: Then may we have the appearances?
16 MR. YAPA: May it please Your Honours, I'm Upawansa Yapa appearing
17 for the Prosecution. Mr. David Leese is the case manager today. Thank
19 JUDGE SHAHABUDDEEN: For Mr. Jelisic.
20 MR. CLEGG: William Clegg representing Goran Jelisic.
21 JUDGE SHAHABUDDEEN: Good.
22 The Appeals Chamber of this International Tribunal meets today
23 pursuant to a Scheduling Order issued by this Chamber on 28 June 2001,
24 appointing today as a day for delivery of the judgement in the case of
25 Prosecutor against Goran Jelisic. The Appeals Chamber will now deliver
2 Copies of the judgement, which is in writing, will be made
3 available by the Registrar to the parties towards the end of this
4 hearing. I shall not be reading out the text of the judgement, except for
5 the operative paragraph. Following the practice of this Tribunal, I shall
6 limit myself to a summary of it. The summary does not reproduce all the
7 elements of the written judgement. I emphasise that the only
8 authoritative account of the Appeals Chamber's conclusions and its reasons
9 for those conclusions are to be found in the written judgement.
10 This Chamber is seized of two appeals, one filed by the
11 Prosecution, one filed by Mr. Goran Jelisic. They arise in this way:
12 Mr. Jelisic was indicted for crimes of genocide, violations of the
13 laws or customs of war, and crimes against humanity committed in May 1992
14 in the municipality of Brcko in the north-eastern part of Bosnia and
16 At the trial stage, an agreement of the factual basis was reached
17 between the parties. On 29 October 1998, Mr. Jelisic pleaded guilty to
18 31 counts comprising violations of the laws or customs of war and crimes
19 against humanity; he pleaded not guilty to the genocide count. The
20 subsequent proceedings before the Trial Chamber were, therefore, limited
21 to the genocide count.
22 The trial commenced on 30 November 1998, and the Prosecution
23 completed its presentation of evidence on 22 September 1999. At that
24 stage, the Trial Chamber informed the parties that it would render a
25 judgement pursuant to Rule 98 bis (B) of the Rules. This rule provides as
1 follows: "The Trial Chamber shall order the entry of judgement of
2 acquittal on motion of an accused or proprio motu if it finds that the
3 evidence is insufficient to sustain a conviction on that or those
5 The Prosecution filed a motion to postpone the Trial Chamber's
6 decision until the Prosecution had been given the opportunity to present
8 On 19 October 1999, the Trial Chamber pronounced its oral
9 judgement. Written reasons, together with sentencing, followed on 14
10 December 1999. It decided that there was an "indissociable" link between
11 the Prosecution's motion to be heard and the judgement itself, and
12 dismissed the motion. It convicted Mr. Jelisic of the counts alleging
13 violations of the laws or customs of war and crimes against humanity, to
14 which he had pleaded guilty. A single sentence of 40 years' imprisonment
15 was imposed. It acquitted him on the count of genocide pursuant to Rule
16 98 bis of the rules.
17 Both sides appealed, the Prosecution against acquittal on the
18 genocide count, Mr. Jelisic against sentence on the counts on which he
19 pleaded guilty, together with a challenge to cumulative convictions
20 therefor as mentioned below.
21 The Prosecution's appeal raises three grounds. The first ground
22 is as follows:
23 1) the Trial Chamber made an error of law by not giving the
24 Prosecution an opportunity to be heard on a proprio motu decision of the
25 Trial Chamber under Rule 98 bis (B) of the Rules.
1 2) the Trial Chamber erred in law by adopting the standard of
2 guilt beyond a reasonable doubt for the purposes of a Rule 98 bis (B)
3 determination of the sufficiency of the evidence to sustain conviction.
4 3) the Prosecution's third ground has two parts. First, the Trial
5 Chamber erred in law in holding that the requisite mental state for
6 genocide in Article 4 of the Statute includes the dolus specialis
7 standard, and not the broader notion of general intent. Secondly, the
8 Trial Chamber erred in law and in fact in deciding that the evidence did
9 not establish beyond all reasonable doubt that there existed a plan to
10 destroy the Muslim group in Brcko or elsewhere within which the murders
11 committed by Mr. Jelisic would allegedly fit; and the Trial Chamber erred
12 in law and fact when it decided that the acts of Mr. Jelisic were not the
13 physical expression of an affirmed resolve to destroy, in whole or in
14 part, a group as such, but rather, were arbitrary acts of killing
15 resulting from a disturbed personality.
16 The Prosecution requested that the case be remitted to a
17 differently constituted Trial Chamber for a new trial.
18 The cross-appellant, Mr. Jelisic, has raised the following grounds
19 in his appeal:
20 1) The Trial Chamber erred by imposing cumulative convictions.
21 2) The Trial Chamber erred in fact and in the exercise of its
22 discretion when imposing sentence.
23 Under this second ground of appeal, the cross-appellant's
24 arguments included the following:
25 - the sentence passed by the Trial Chamber for the counts in
1 respect of which he pleaded guilty erroneously took into account
2 Prosecution evidence given at his trial for genocide;
3 - the Trial Chamber made an unauthorised double conviction on
4 counts 16 and 17 (concerning the deaths of two brothers) while the
5 indictment alleged one killing;
6 - the absence of a recognised tariff for sentencing;
7 - the Trial Chamber failed to accept the remorse shown by the
8 cross-appellant as genuine;
9 - the Trial Chamber failed to consider that the cross-appellant
10 was not a commander;
11 - the Trial Chamber failed adequately to consider the role of the
12 cross-appellant in the broader context of the conflict in the former
14 - the Trial Chamber was obliged but did not consider the general
15 practice regarding prison sentences in all the courts of the former
17 - the Trial Chamber failed to give him any credit for his guilty
19 - the Trial Chamber failed to consider his cooperation with the
21 - the Trial Chamber failed to give adequate consideration to his
23 The cross-appellant requested that his sentence be reduced. With
24 regard to cumulative convictions, he asked that his convictions, for what
25 he contended was the lesser crime, be quashed.
1 I will now briefly go through the findings of the Appeals
3 I shall first deal with the Prosecution's appeal. As to the first
4 ground of appeal, the Appeals Chamber finds that the Prosecution has a
5 right to be heard on the question of whether the evidence was sufficient
6 to sustain a conviction. The fact that the Trial Chamber had the right to
7 decide proprio motu pursuant to Rule 98 bis (B) does not relieve it of the
8 normal duty of a judicial body to first hear a party whose rights can be
9 affected by the decision to be made.
10 As to the second ground of the Prosecution's appeal, the Appeals
11 Chamber holds that the Trial Chamber erred in applying the test for
12 determining whether the prosecution evidence is insufficient to sustain a
13 conviction. The correct test is whether there is evidence (if accepted)
14 upon which a reasonable tribunal of fact could be satisfied beyond
15 reasonable doubt of the guilt of the accused on the particular charge in
17 As to the first part of the Prosecution's third ground of appeal,
18 the Appeals Chamber finds that the requisite intent is one to destroy, in
19 whole or in part, a national, ethnical, racial, or religious group by one
20 of the prohibited acts enumerated in Article 4 of the Statute. It
21 considers that the Trial Chamber was referring to this intent when it
22 spoke of dolus specialis. The Appeals Chamber further holds that the
23 existence of a plan or policy is not a legal ingredient of the crime of
24 genocide, although it may be evidentially of assistance.
25 As to the second part of the Prosecution's third ground of appeal,
1 the Appeals Chamber is of the opinion that the Trial Chamber's erroneous
2 application of the standard under Rule 98 bis (B) led to an incorrect
3 assessment of the evidence. However, in the circumstances of this case,
4 the Appeals Chamber does not consider it appropriate to reverse the
5 acquittal and to remit the case for further proceedings.
6 As to the cross-appellant's first ground of appeal, the Appeals
7 Chamber finds that cumulative convictions under both Articles 3 and 5 are
9 The Appeals Chamber now comes to the cross-appellant's second
10 ground of appeal: As to Counts 16 and 17 of the indictment, the
11 cross-appellant pleaded guilty to the killing of only one of the brothers
12 Huso and Smajil Zahirovic. The Trial Chamber erred in finding him guilty
13 of murdering both of them. However, as the appellant was convicted of 12
14 murders, in the opinion of the Appeals Chamber the erroneous conviction
15 does not affect sentencing.
16 With regard to the cross-appellant's submission that the Trial
17 Chamber erred in the exercise of its discretion when imposing sentence, as
18 has been noted, several sub-grounds were raised. The Appeals Chamber's
19 findings with regard to each sub-ground will not be addressed here.
20 However, the Appeals Chamber found that Rule 101(A) of the Rules provides
21 that "a convicted person may be sentenced to imprisonment for a term up to
22 and including the remainder of the convicted person's life." Thus the
23 Trial Chamber has the discretion to impose life imprisonment. The Trial
24 Chamber also has a broad discretion as to what factors it may consider in
25 sentencing and the weight to attribute to them. Generally, the Appeals
1 Chamber found that the cross-appellant has failed to show an error in the
2 exercise of the Trial Chamber's discretion.
3 I shall now read the paragraph from the written judgement setting
4 out the disposition, and at this stage, I will invite Mr. Jelisic to
6 The disposition runs as follows:
7 (1) The Appeals Chamber unanimously allows the Prosecution's
8 first ground of appeal.
9 (2) The Appeals Chamber by majority (Judge Pocar dissenting)
10 allows the Prosecution's second ground of appeal.
11 (3) In respect of the Prosecution's third ground of appeal:
12 (i) the Appeals Chamber unanimously dismisses the
13 Prosecution's appeal with regard to the alleged error of
14 law by the Trial Chamber in its application of the term
15 dolus specialis;
16 (ii) the Appeals Chamber by majority (Judge Pocar dissenting)
17 allows all other aspects of the Prosecution's third
18 ground of appeal.
19 (4) However, the Appeals Chamber by majority (Judge Shahabuddeen
20 and Judge Wald dissenting) considers that, in the circumstances of this
21 case, it is not appropriate to order that the case be remitted for further
22 proceedings and declines to reverse the acquittal.
23 (5) The Appeals Chamber unanimously dismisses the
24 cross-appellant's first ground of appeal.
25 (6) In respect of the cross-appellant's second ground of appeal:
1 (i) the Appeals Chamber unanimously finds that the Trial
2 Chamber erred in finding the cross-appellant guilty of
3 two murders under Counts 16 and 17 of the second amended
4 indictment when he in fact pleaded guilty to only one of
5 the murders;
6 (ii) the Appeals Chamber unanimously dismisses the other
7 aspects of the cross-appellant's second ground of
9 (7) The Appeals Chamber unanimously affirms the sentence of
10 40 years of imprisonment as imposed by the Trial Chamber.
11 (8) In accordance with Rule 103(C) of the Rules, the
12 cross-appellant is to remain in the custody of the International Tribunal
13 pending the finalisation of arrangements for his transfer to the State
14 where his sentence will be served.
15 Done in both English and French, the English text being
17 Then there follow the signatures of the five members of the Bench,
18 myself, Judge Vohrah, Judge Nieto-Navia, Judge Wald, and Judge Pocar.
19 Dated this 5th day of July, 2001, at The Hague, the Netherlands.
20 Judge Nieto-Navia appends a separate opinion to this judgement.
21 Judge Shahabuddeen, Judge Wald, and Judge Pocar append partial dissenting
22 opinions to this judgement.
23 Mr. Jelisic, you may sit.
24 Madam Registrar, you may now hand out the written judgements.
25 There ends the proceedings, unless colleagues have something to
2 The Court will now, accordingly, rise.
3 --- Whereupon the Appeals Proceedings Judgement
4 concluded at 10.32 a.m.