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

7 case?

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

18 you.

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

1 judgement.

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

15 Herzegovina.

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

4 charges."

5 The Prosecution filed a motion to postpone the Trial Chamber's

6 decision until the Prosecution had been given the opportunity to present

7 arguments.

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

13 Yugoslavia;

14 - the Trial Chamber was obliged but did not consider the general

15 practice regarding prison sentences in all the courts of the former

16 Yugoslavia;

17 - the Trial Chamber failed to give him any credit for his guilty

18 plea;

19 - the Trial Chamber failed to consider his cooperation with the

20 Prosecution;

21 - the Trial Chamber failed to give adequate consideration to his

22 youth.

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

2 Chamber.

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

16 question.

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

8 permissible.

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

5 stand.

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

8 appeal.

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

16 authoritative.

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

1 say.

2 The Court will now, accordingly, rise.

3 --- Whereupon the Appeals Proceedings Judgement

4 concluded at 10.32 a.m.

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